REVIEW PAPERS


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 confidentiality.

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 victim” (5).

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 claims.

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 abuse situations.

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.

Conclusion

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.

Clinical Implications

Limitations

References

1. Pron N. Doctors urged to turn in “dangerous” patients. The Toronto Star 1997 Oct 30;Sect A:1,34.

2. 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.

3. Canadian Medical Association. Code of ethics. Ottawa: Canadian Medical Association; 1978.

4. Tarasoff v. Regents of the University of California [1976] 17 Cal.Rptr. 3rd (U.S.)

5. California Assembly Bill 1133 [1984] McAllister, Section 43-92.

6. Wenden v. Trikha [1991] 116 A.R. 81 (Altaedez. Q.B.)

7. Kleinman I. Confidentiality and the duty to warn. Can Med Assoc J 1993;149:1783–5.

8. Truscott D, Crook K. Tarasoff in the Canadian context: Wenden and the duty to protect. Can J Psychiatry 1993;38:84–9.

9. Carlisle J. Duty to warn: report from council. Members’ Dialogue, Canadian Medical Association. 1996;July/August:21.

10. Spillane S. AIDS: establishing a physician’s duty to warn. Rutgers Law Journal. 1990;21:645.

11. Casswell D. Disclosure by a physician of AIDS-related patient information and ethical and legal dilemma. Canadian Bar Review 1989;68:225.

12. Flanagan W. Equality rights for people with AIDS: mandatory reporting of IV infection and contact tracing. McGill Law Journal 1989;34:530.

13. Taylor S, Brownlee K, Mauron-Hopkins K. Confidentiality versus the duty to protect: an ethical dilemma with HIV/AIDS clients. The Social Worker 1996;64:9–17.

14. Applebaum P. Tarasoff and the clinician: problems in fulfilling the duty to protect. Am J Psychiatry 1985;142:425–9.

15. Beattie, B. Determining competency to continue driving. Canadian Journal of Continuing Medical Education 1994;June:81–6.

16. Spillane v. Wasserman [1993] 13 C.C.L.T. (2d) 267 (Ont. Gen. Div.)

17. Toms v. Foster [1994] Ont. C.A., M.V.R. [3rd] 34.

18. Pettis R. Tarasoff and the dangerous driver: looking at the driving cases. Bull Am Acad Psychiatry Law 1992;20:427–37.

19. Johnston C. Failure to report drivers medical problems could have serious legal consequences for MD’s. Can Med Assoc J 1993;149:322–5.

20. Health Protection and Promotion Act [1990] RSO. c. H.7, ss. 25–26.

21. Health Insurance Act [1994] R.S.O. 552, Section 43, 1,7.

22. Aeronautics Act [1985] R.S.C., c.A-2., Section 6.5.

23. Cutajar P, Hampson M. Time to amend Section 135. Psychiatric Bulletin 1997;21:640–1.

24. Ontario Hospital Association. Discussion paper: adult victims of violence. Abuse or Neglect 1995.

25. Regulated Health Professions Act [1991] R.S.O., c.18.

26. Royal College of Psychiatrists. Reported recovered memories of child sexual abuse. Psychiatric Bulletin 1997;21:663–5.

27. R. v. Plant [1991] 116 A.R. 1 (Alta. C. A.)

28. Turner R. Disclosure of health information to the police: a psychiatrist’s perspective. Health Law in Canada 1981;2:34.

29. R. v. Ross [1993], 79 C.C.C. 3rd 253 (N.S.C.A.)

30. R. v. Dyment [1988] 2 S.C.R. 417.

31. Canadian Charter of Rights and Freedoms [1982] Part 1 of the Constitution Act 1982, Being Schedule B to the Canada Act (U.K.), 1982, c.11.

32. Goldman M, Gutheil T. The misperceived duty to report patient’s past crimes. Bull Am Acad Psychiatry Law 1994;22:407–10.

33. Applebaum P, Meisel A. A therapist’s obligation to report the patient’s criminal acts. Bull Am Acad Psychiatry Law 1986;14:221–30.


Résumé

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, Waterloo, Ontario.

3Barrister-at-Law, Toronto, Ontario.

Address for correspondence: Dr GD Glancy, Suite 400, 302 The East Mall, Toronto, ON  M9B 6C7

email: graham.glancy@utoronto.ca

Can J Psychiatry, Vol 43, December 1998