1. Emergency Psychiatry: Aspects of Breaching Confidentiality
Eric Prost, MD, FRCPC.
June 27, 2012.

2. Objectives
To review some common necessary and lawful breaches of confidentiality in the ER
To consider the ethical and legal basis for breaching in the “duty to protect”.

3. Doctor-Patient Confidentiality
Calling CAS
Notifying MTO
Warning potential victims; notifying police
Working with an SDM
Notifying partner of danger of infectious disease
Divulging medical records if court ordered
Discussing work with spouse, clergy, lawyer

4. Doctor-Patient Confidentiality
Not Lawyer-Client Privilege
Doctor-patient confidentiality is less protected
Statutes vs Common Law/Case Law

5. CAS: Duty to Report
CFSA: “obligation to report forthwith” if you have “reasonable grounds to suspect that a child is or may be in need of protection”.
CFSA supersedes all but lawyer-client privilege
Child = <16 y.o. Child = <18 y.o. if a ward or under supervision order of CFSA

6. CAS Report yourself Report “forthwith” Ongoing obligation to report
A professional who fails to report can be fined
Do not “investigate” yourself
Not obligated (or allowed) to give all medical information

7. MTO: Reporting
Highway Traffic Act: doctors must report to the Register of Motor Vehicles those over 16 who are “suffering from a medical condition that may make it dangerous for the person to operate a motor vehicle”.
“serious risk to road safety”
Unknown risk
Condition is temporary

8. Duty to Warn/Protect: Law
Tarasoff I (1974), Calif.
Tarasoff II (1976), Calif.
Wenden v Trickha (1991), AB, Canada
Smith v Jones (1999), Supreme, Canada
Ewing v Goldstein (2004), Calif.
Ahmed v Stefaniu (2006), ON, Canada

9. Ethical Basis Need vs Privilege
Need to preserve life and alleviate suffering
Sometimes need extends beyond the individual patient
Therefore, doctors should preserve life and alleviate suffering “in specific cases of preventable harm”
Am J Bioethics (2006); 6(2).

10. Ethical Basis An extension of “do no harm” to the patient
“Save him from his actions”
In therapy, it shows we care enough about the pt and the treatment to set limits on behaviour

11. Ethical Basis
“Tarasoff and subsequent developments have reinforced our role as agents for social control”
Healing Patient  Protecting Society (including from those who are not ill)
Can J Psych (2000); 45(10).

12. Statutes 37 states (US) Differs by state but common ingredients:
Permissive vs Compulsory
Differs by state but common ingredients:
Imminence
Expressed threat
Identifiable victim
J Am Acad Psych Law (2010); 38(4).

13. Canada No statute (no specific legislation)
Guided by common law/case law
Statutes are clearer and, possibly, more protective

14. Canada: Common Law
Historic: There is no duty to control the conduct of another or warn those at risk.
Currently: Above is not true if you have a special relationship with the person inflicting the violence.
Can J Psych (2000); 45(10).

15. Canada: Smith v Jones (1999)
If lawyer-client privilege can be breached because of a risk to a 3rd party, doctor-patient confidentiality can be as well.
Supreme Court did not say whether breach is mandatory or discretionary.

16. Canada: Smith v Jones
Did not specify what exact steps an expert might take to protect the public
Said it might be appropriate to notify potential victim or the police.

17. Examples from Statutes (US)
Duty present in the law but no duty found in the particular case:
No identifiable victim communicated
Time elapsed since the treatment
No duty because potential victim already knew
J Am Acad Psych Law (2010); 38(4).

18. Canada Identifiable victim (Wenden v Trickha, 1991)
Time Elapsed (Ahmed v Stefaniu, 2006)
J Am Acad Psych Law (2009); 37(2).

19. How do you proceed in Canada in 2012?
You may need to breach confidentiality to protect a 3rd party.
Duty to warn is but one possible action when discharging your duty to protect.
Victim should be identifiable and threat serious, imminent, and likely.

20. How should you proceed in Canada in 2012?
Acting = Law suit?
Didn’t wait until pt not intoxicated
Pt not hospitalized for 72 hrs to fully assess first
Notify police?
Michigan and S. Carolina study
Police have minimal experience with this and, therefore, not best option to protect
J Am Acad Psych Law (2003); 31(4)
Psychiatr Serv (2000); 51(6)

21. How should you proceed in Canada in 2012?
“Open negotiation with the patient in a climate of therapeutic beneficence often results in a solution satisfactory to all parties.”
Can J Psychiatry (2000); 45(10).