Confidentiality in Crisis:
Part I—The Duty to Inform
Graham D Glancy, MB, ChB, FRCPsych, FRCPC1, Cheryl Regehr, PhD, CSW2, Anthony
G Bryant, LLB3
Objective: To discuss the ethical and legal imperatives to protect third
parties from harm in circumstances often believed to be protected by doctor–patient
Method: A review of recent legislative changes and legal decisions pertaining
to a psychiatrist’s duty to warn.
Conclusion: The current legislative and legal climate presents many risks
to the concept of doctor–patient confidentiality. Psychiatrists must carefully
consider any guarantees of confidentiality made to patients and must discuss
the limits of confidentiality when obtaining consent for treatment.
(Can J Psychiatry 1998;43:1001–1005)
Key Words: confidentiality, informed consent, duty to warn
Doctors urged to turn in dangerous patients” proclaimed the headline of
the Toronto Star (1). The story that followed discussed the report of the
Institute for Clinical Evaluative Studies, which concluded that “Protecting
individuals or the public from likely risk of serious harm . . . should
supersede the principle of confidentiality of doctor patient communication”
(2, p 5). This report was prompted by the killing of Ottawa lawyer Patricia
Allen by her estranged husband, who 6 weeks earlier had told his physician
that he planned to murder his wife. Colin McGregor was found guilty of
first degree murder in 1993. His physician, following codes of confidentiality
prescribed by the Canadian Medical Association (3), took no action to warn
the intended victim. Such cases and recent Canadian legislative changes
have brought the debate weighing patient confidentiality against public
safety into the public forum. This public attention highlights the ethical
dilemmas faced by Canadian physicians and the perils encountered regardless
of their decisions.
This 2-part article reviews recent Canadian legislation and court decisions
regarding issues of confidentiality in psychiatric treatment. Part I deals
with the duty to protect third parties from harm. Part II considers the
confidentiality of psychiatric treatment records. We will demonstrate that
the current legislative and legal climate presents many risks to the concept
of doctor–patient confidentiality. Psychiatrists must be fully aware of
the changing legal limits to confidentiality in contrast to the static
ethical standards for preserving confidentiality. In addition, practitioners
must carefully consider any guarantees of confidentiality made to clients
and must discuss the limits of confidentiality when obtaining informed
consent for treatment.
Duty to Warn
The McGregor case raised anew the issue of an affirmative or legal duty
to warn innocent third parties. This concept has a long tradition in the
United States (US), which was highlighted and clarified by the famous Tarasoff
decision in California in 1976 (4). In that case, a patient told his treating
psychologist that he intended to kill his former girlfriend, Ms Tarasoff.
The therapist, concluding that the patient was dangerous, contacted the
campus police but did not warn the intended victim. Ms Tarasoff was subsequently
killed, and her family sued the therapist. Despite defence arguments that
the duty to warn violated the accepted ethical obligation to maintain confidentiality,
the courts ruled in the plaintiff’s favour. The court concluded that the
confidentiality obligation to a patient ends when public peril begins.
This was later codified by amendments to the California civil code, which,
with the efforts of the California Psychiatric Association, limited the
Tarasoff liability to a “serious threat” against a “reasonably identified
While the Tarasoff case and other similar US court decisions did not apply
to Canadian jurisdictions, the reasoning was persuasive, and it was generally
assumed that Canadian courts would offer a similar decision should the
issue arise. This opinion was referred to in the report of the Institute
for Clinical Evaluative Studies (2). Nevertheless, it was 15 years after
the Tarasoff case that a Canadian precedent-setting case was decided. In
the Alberta case of Wenden v. Trikha, a tort action was commenced after
a voluntarily admitted psychiatric patient left the hospital without the
knowledge of hospital staff, drove his car in a dangerous and erratic manner
and at an excessive rate of speed, and collided with the plaintiff’s vehicle
(6). The accident resulted in severe injury to Ms Wenden and the eventual
loss of custody of her children since she was unable to care for them.
She sued the hospital and the psychiatrist, claiming that they owed her
a duty of care and were in breach of that duty by reason of the manner
in which they had cared for the patient. The cases against both the hospital
and doctor were dismissed, as it was determined that there was no indication
that the patient presented a risk to others and no previous relationship
between the injured party and the patient existed. However, in an obiter
dictum, the judge, adopting the Tarasoff ruling, suggested that both hospitals
and psychiatrists who become aware that a patient presents a serious danger
to others owe a duty to protect those others if a requisite proximity of
relationship exists between them and the patient. As such, under Canadian
law there is now a duty to protect owed to third parties when a threat
is of a serious nature and the diagnosis, history, and opportunity to bring
the threat to fruition are such that a reasonable psychotherapist would
be concerned (7,8). While this forms the basis of a common-law duty to
warn, mental health practitioners continue to question their responsibilities,
since, except in Quebec, provincial or federal statutes do not require
or permit therapists to report clients who threaten to seriously harm a
member of the public (9). Breaching confidentiality in this manner might,
therefore, still result in disciplinary action, hence the importance of
a review by medical licencing bodies to monitor the situation and increase
the consistency between ethical codes and common law.
In Canada, the contradiction between common law and legislation is best
exemplified when considering a duty to warn in the context of the risk
that HIV-infected people present to intimate partners. While US case law
places an affirmative duty on physicians to break physician–patient confidences
and warn those exposed to harm from contagious disease (10), health care
providers in Ontario, for instance, have been prohibited from disclosing
the HIV status of their patients without the latter’s consent to anyone
but the Medical Officer of Health, even if they believe that their patients
present a significant risk of infection to a contact (11,12). The 1994
Ontario decision in Pittman Estate v. Bain has now challenged this directive
regarding confidentiality (13). Mr Pittman contracted HIV as a result of
a blood transfusion during surgery and subsequently died of AIDS-related
pneumonia. Dr Bain, his physician, upon learning that the blood products
that Mr Pittman had received may be tainted, elected not to inform him,
since he believed that Mr Pittman and his wife were not engaging in sexual
intercourse. Mrs Pittman, however, contracted HIV from her husband. Dr
Bain was found negligent of his duty to protect. Based on this decision,
physicians in Canada must now consider the duty to protect others when
working with sexually active HIV-infected individuals.
From a practical viewpoint, when dealing with a patient who may represent
a risk of violence to a third party, a psychiatrist should be aware of
common obstacles to avoid in clinical practice. Appelbaum recommends a
3-part model comprising assessment of dangerousness, selection of a course
of action, and implementation (14). The basic principles of a thorough
assessment, good note-taking, and possible consultation satisfy the first
part of this model. Once a prediction of dangerousness has been made, despite
the difficulties inherent in this, a course of action might be decided
upon. Actions might include voluntary or involuntary hospitalization, medication,
an appropriate level of observation or security, and a warning to the intended
victim and law enforcement agencies. The third part of the approach requires
monitoring the situation on an ongoing basis and ensuring that the intervention
is effective. This process of assessment, intervention, and monitoring
serves 3 important purposes. It ensures the protection of innocent third
parties; it protects the patient from legal and other consequences on inflicting
injury upon others; and it safeguards the clinican against malpractice
In addition to generalized concerns about duty to warn, Wenden v. Trikha
points to another arena in which medical practitioners are obligated to
breach confidentiality (6). The Highway Traffic Acts of Ontario and British
Columbia and Motor Vehicle Administration Acts of Alberta, Manitoba, Prince
Edward Island (PEI), Newfoundland, New Brunswick, North West Territories,
and Yukon make it mandatory for physicians to report anyone who has a medical
condition that may make it dangerous for them to drive (15). In addition,
Saskatchewan, Nova Scotia, and Quebec allow for the discretionary reporting
of a person whose driving poses a danger. No action may be brought against
a practitioner for complying with these statutory obligations. This kind
of legislation presents particular concerns for psychiatrists because it
is viewed by many to include reporting individuals whose substance abuse
may result in life-threatening driving behaviours. Thus, very large percentages
of cases could be reported in the areas of addictions or forensic practice,
which could seriously undermine any doctor–patient relationship in substance
The problem becomes acute when such failure to report where mandated by
law has resulted in civil liability for physicians. In Spillane v. Wasserman,
an Ontario Superior Court judge held that physicians owed a duty of care
to the community and ordered the payment of third party damages to individuals
injured in a car accident caused by a patient with a long history of epileptic
seizures, shown to have had such a seizure while driving immediately prior
to the accident (16). In another Ontario case, Toms v. Foster, a family
physician and a neurologist were found negligent for not reporting a patient
with a medical condition that made it inadvisable to drive, who was subsequently
in a motor vehicle accident with a motorcycle (17). There it was stated
that the neurologist informed the general practitioner of possible risk,
who in turn told the patient not to drive. The physician stated that he
believed the condition to be temporary and trusted the patient not to drive
while the risk continued. The jury decision and appeal make it clear that
there is no discretion and that reporting is mandatory where specified
by law. These decisions follow recent US cases in which physicians have
been held accountable for injuries to others caused by the dangerous driving
of patients with mental illnesses (18). There is no doubt that this is
a situation of which all physicians should be aware. An Ontario lawyer
made the self-evident observation that “fitness to drive legislation and
failure to report lawsuits are sure to become more common as more lawyers
take the deep pocket approach to litigation” (19, p 325).
Further limits to confidentiality are found in the Health Protection and
Promotion Act, which requires that a physician report to the Medical Officer
of Health any person suffering from a communicable disease (20). In addition,
the Health Insurance Act of Ontario directs physicians to report any patient
who is ineligible for health insurance and fraudulently attempting to obtain
health services to the Ministry of Health through a newly dedicated “fraud
line” (21). While the reporting of communicable diseases may be consistent
with medical values to protect public health, investigations of fraud may
be seen by some physicians to be 1 more nail in the coffin of confidentiality.
Finally, physicians are also obligated to report patients such as licenced
pilots or air-traffic controllers whose medical condition might present
a threat to aviation safety (22). Interestingly, only 1% of those who are
reported under aviation safety legislation lose their licences, and 5%
to 8% are temporarily grounded pending further medical examinations.
Mandatory Reporting of Abuse
While it now appears that warning an identified victim of imminent violence
is a legal requirement, it is less clear whether crimes of violence that
have previously occurred must be reported. All jurisdictions in Canada
have legislation regarding the mandatory reporting of child abuse. This
legislation assumes that the protection of a child and the prevention of
further child abuse outweigh the privilege afforded to the child and to
the abuser by the receiver of such information. In the United Kingdom (UK),
this duty to protect extends beyond children and includes vulnerable adults.
Under the provisions of Section 135 of the 1983 Mental Health Act of the
UK, a justice of the peace, on information provided under oath by an approved
social worker, can issue a warrant allowing any constable to enter, forcibly
if necessary, any premises in which there is reasonable cause to suspect
that a person with a mental disorder has been or is being ill-treated or
neglected (23). This extends beyond the risk of harm to self or others
that characterizes current Canadian mental health legislation.
A further risk to confidentiality of psychiatric treatment occurs regarding
mandatory reporting by therapists of abuse against adults. In Canada, Nova
Scotia law mandates reporting of abused or neglected adults, and PEI and
New Brunswick laws permit but do not mandate reporting without the client’s
consent. The remaining provinces do not have legislation that deals with
the reporting of adult victims of violence, abuse, or neglect, although
it is presently being considered in Ontario (24). In Ontario, however,
any health professional, whether treating or not, must make a report where
he or she had reasonable grounds to believe that a regulated health professional
has sexually abused a patient (25). Currently, in provinces other than
PEI, New Brunswick, and Nova Scotia, practitioners who make a report without
the patient’s consent would be in breach of the duty of confidentiality
owed the patient (24).
There are several arguments in favour of mandatory reporting laws. Society
has a responsibility to victims and to those who are unable to help themselves.
As a result, it has been argued that the absence of reporting laws is a
reflection of society’s tolerance for abuse and neglect of vulnerable individuals.
Mandatory reporting laws can, therefore, be seen as a means of supporting
victimized women and relieving the burden of reporting currently placed
on victims. Such societal recognition of assault and abuse could create
pressure for increased funding to treatment programs and shelters. Arguments
for mandatory reporting also point to the societal view that apprehending
offenders overrides victim wishes for confidentiality (24). Despite the
compelling nature of these arguments, some professional groups are concerned
that the wave of mandatory reporting may extend beyond recent assaults
to include cases of adults who were abused as children. The Royal College
of Psychiatrists in England has recently stated “Psychiatrists should resist
vigorously any move towards the compulsory reporting of all allegations
or suspicions by adults of sexual abuse during childhood” (26, p 664).
There is also the issue of whether reporting a crime of violence without
the victim’s consent is an infringement on individual rights to autonomy.
Victims may elect not to report an assault perpetrated against them for
fear that it will lead to further abuse by the offender. They may also
be aware of the secondary trauma experienced by many victimized individuals
encountering the criminal justice system. Stripping victims of the right
to decide whether or not to report a crime committed against them violates
the ethic of self-determination. If mandatory reporting laws are effected
throughout Canada, psychiatrists, when obtaining informed consent for psychiatric
assessment and psychotherapy during initial contact with a patient, will
be obligated to inform patients of their duty to report.
Duty to Report the Commission of a Crime
Mandatory reporting of abuse is based on the supposition that the victim
remains at some risk of further harm from the abuser. A different situation
may exist if no further risk of harm is expected. Generally, physicians
in Canada do not have the duty to reveal information regarding the commission
of a crime without the patient’s permission (27,28). The peculiar criminal
case of R. v. Ross demonstrates the danger of revealing confidential information
regarding a crime (29). In this case, a psychiatrist learned through the
media that a former client had accused a man (Ross) of sexual assault.
Ross was convicted, and he appealed. The psychiatrist contacted the prosecutors
with his belief that the claim may have been false. On appeal, a new trial
was ordered, partly because of records subpoenaed from the psychiatrist.
While awaiting trial, Ross was charged with another sexual assault, so
he pleaded guilty to the original complaint. The victim then successfully
complained to the medical discipline board regarding the physician’s breach
of confidentiality. This case serves as a reminder to all therapists to
proceed with caution when what may be perceived as morally right conflicts
with the principle of client confidentiality.
Indeed some courts have frowned on health professionals voluntarily cooperating
with the police when it involves divulging patient information or sharing
specimens drawn from a patient that directly relate to a criminal investigation.
In R. v. Dyment, a physician had drawn blood from an unconscious patient
injured in a car accident (30). The sample was later turned over to the
police without the patient’s permission and without a search warrant and
was used to convict the person of impaired driving. The Supreme Court of
Canada held that the taking of the blood sample was an unlawful seizure
that violated the accused’s rights under the Canadian Charter of Rights
and Freedoms (31). Justice La Forest quoted the following from the Report
of the Inquiry into the Confidentiality of Health Records presided over
by Justice Krever in Ontario:
A free exchange of information between physicians and hospitals and the
police should not be encouraged or permitted. Certainly physicians, hospital
employees and other health-care workers ought not to be made part of the
law enforcement machinery of the state (30).
Goldman and Gutheil suggest that the novel duties to third parties introduced
by the Tarasoff case have altered clinicians’ perceptions of the limits
of confidentiality that they were expected to observe (32). As such, the
clinicians’ belief that there is a duty to take action (for example, reporting
to the authorities) when they hear in treatment about a patient’s past
crimes may represent a sort of “Tarasoff confusion.” Under federal statutes
in the US, however, a therapist’s simple knowledge of a patient’s past
felony is not sufficient cause for breach of confidentiality (33). Similarly
in Canada, physicians are under no obligation to report knowledge of previous
criminal activity and may, in fact, be held in breach of their duties if
they do report crimes committed by patients.
The Canadian Medical Association Code of Ethics states that the physician
“will keep in confidence information derived from his patient or from a
colleague regarding a patient and divulge it only with the permission of
the patient except when the law requires him to do so” (3). Until recently,
this ethical guideline covered the bulk of psychotherapy practice and ensured
safe treatment for psychiatric patients. Recent legislative changes and
court decisions have threatened this confidentiality significantly. While
Justice Krever in the Report of the Inquiry into the Confidentiality of
Health Records in Ontario cautioned against physicians and other health
care professionals becoming extensions of the law enforcement system, clearly
we are moving in that direction. While protection of vulnerable others
is an admirable aim, several problems emerge. Prediction of dangerousness
is an inexact science at best. In Tarasoff-like situations, where a clear
threat is made and the intended victim is named, the duty to inform seems
most clear. Predicting negligence through dangerous driving is a daunting
task. Mandatory reporting of violence committed against an adult, including
sexual abuse by his or her therapist, may not only relieve the victim of
the burden of deciding to report but also carries the added benefit of
reducing the risk that the offenders will harm other vulnerable individuals.
However, it can be viewed as effectively blocking access to treatment of
those women who do not wish to report the violent acts committed against
them and thereby enter the criminal justice system. The dilemma for those
individuals must not be overlooked.
Psychiatrists must carefully consider their positions on issues of duty
to inform and advocate for policies that consider all aspects of the issue
and are relevant to psychiatric practice. If they do not, they will become
agents of social control with little autonomy to provide safe treatment
and to ameliorate issues of violence through psychotherapeutic change.
Practitioners have a duty to warn third parties of intended injury by a
Practitioners in many areas must inform proper authorities about medical
conditions that may represent a threat to operating vehicles.
There is no duty to report previously committed crimes, except regarding
specified crimes in some jurisdictions.
This is a selective and not a comprehensive review of the literature, legislation,
and case law.
Case law and legislation may change at any time, and thus this information
was current only at time of writing.
Legal obligations vary between jurisdictions, and practitioners should
consult legal counsel about requirements in their geographical area.
Pron N. Doctors urged to turn in “dangerous” patients. The Toronto Star
1997 Oct 30;Sect A:1,34.
Institute for Clinical and Evaluative Studies. Final recommendations of
Ontario’s Medical Expert Panel on the duty to inform. North York (ON):
Institute for Clinical and Evaluative Studies; 1996.
Canadian Medical Association. Code of ethics. Ottawa: Canadian Medical
Tarasoff v. Regents of the University of California  17 Cal.Rptr.
California Assembly Bill 1133  McAllister, Section 43-92.
Wenden v. Trikha  116 A.R. 81 (Altaedez. Q.B.)
Kleinman I. Confidentiality and the duty to warn. Can Med Assoc J 1993;149:1783–5.
Truscott D, Crook K. Tarasoff in the Canadian context: Wenden and the duty
to protect. Can J Psychiatry 1993;38:84–9.
Carlisle J. Duty to warn: report from council. Members’ Dialogue, Canadian
Medical Association. 1996;July/August:21.
Spillane S. AIDS: establishing a physician’s duty to warn. Rutgers Law
Casswell D. Disclosure by a physician of AIDS-related patient information
and ethical and legal dilemma. Canadian Bar Review 1989;68:225.
Flanagan W. Equality rights for people with AIDS: mandatory reporting of
IV infection and contact tracing. McGill Law Journal 1989;34:530.
Taylor S, Brownlee K, Mauron-Hopkins K. Confidentiality versus the duty
to protect: an ethical dilemma with HIV/AIDS clients. The Social Worker
Applebaum P. Tarasoff and the clinician: problems in fulfilling the duty
to protect. Am J Psychiatry 1985;142:425–9.
Beattie, B. Determining competency to continue driving. Canadian Journal
of Continuing Medical Education 1994;June:81–6.
Spillane v. Wasserman  13 C.C.L.T. (2d) 267 (Ont. Gen. Div.)
Toms v. Foster  Ont. C.A., M.V.R. [3rd] 34.
Pettis R. Tarasoff and the dangerous driver: looking at the driving cases.
Bull Am Acad Psychiatry Law 1992;20:427–37.
Johnston C. Failure to report drivers medical problems could have serious
legal consequences for MD’s. Can Med Assoc J 1993;149:322–5.
Health Protection and Promotion Act  RSO. c. H.7, ss. 25–26.
Health Insurance Act  R.S.O. 552, Section 43, 1,7.
Aeronautics Act  R.S.C., c.A-2., Section 6.5.
Cutajar P, Hampson M. Time to amend Section 135. Psychiatric Bulletin 1997;21:640–1.
Ontario Hospital Association. Discussion paper: adult victims of violence.
Abuse or Neglect 1995.
Regulated Health Professions Act  R.S.O., c.18.
Royal College of Psychiatrists. Reported recovered memories of child sexual
abuse. Psychiatric Bulletin 1997;21:663–5.
R. v. Plant  116 A.R. 1 (Alta. C. A.)
Turner R. Disclosure of health information to the police: a psychiatrist’s
perspective. Health Law in Canada 1981;2:34.
R. v. Ross , 79 C.C.C. 3rd 253 (N.S.C.A.)
R. v. Dyment  2 S.C.R. 417.
Canadian Charter of Rights and Freedoms  Part 1 of the Constitution
Act 1982, Being Schedule B to the Canada Act (U.K.), 1982, c.11.
Goldman M, Gutheil T. The misperceived duty to report patient’s past crimes.
Bull Am Acad Psychiatry Law 1994;22:407–10.
Applebaum P, Meisel A. A therapist’s obligation to report the patient’s
criminal acts. Bull Am Acad Psychiatry Law 1986;14:221–30.
Objectif : Présenter les exigences éthiques et légales en vue d’éviter
aux tiers des dommages dans des situations que l’on croit souvent protégées
par la confidentialité médecin-patient.
Méthode : Une recension des modifications récentes des lois et des décisions
judiciaires ayant trait au devoir de mise en garde du psychiatre.
Conclusion : La conjoncture judiciaire et légale actuelle présente de nombreux
risques pour la notion de confidentialité médecin–patient. Les psychiatres
doivent examiner soigneusement toute garantie de confidentialité donnée
au patient et discuter des limites de celle-ci lorsqu’ils obtiennent le
consentement à un traitement.
Manuscript received January 1998, revised, and accepted April 1998.
1Forensic Psychiatrist, Assistant Professor, Department of Psychiatry,
University of Toronto, Toronto, Ontario.
2Assistant Professor, Faculty of Social Work, Wilfrid Laurier University,
3Barrister-at-Law, Toronto, Ontario.
Address for correspondence: Dr GD Glancy, Suite 400, 302 The East Mall,
Toronto, ON M9B 6C7
Can J Psychiatry, Vol 43, December 1998