Emergency Psychiatry:
Aspects of Breaching Confidentiality
Eric Prost, MD, FRCPC.
June 27, 2012.
Objectives
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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”.
Doctor-Patient Confidentiality
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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
Doctor-Patient Confidentiality
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Not Lawyer-Client Privilege
–
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Doctor-patient confidentiality is less protected
Statutes vs Common Law/Case Law
CAS: Duty to Report
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CFSA: “obligation to report forthwith” if you
have “reasonable grounds to suspect that a
child is or may be in need of protection”.
–
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CFSA supersedes all but lawyer-client privilege
Child = <16 y.o. Child = <18 y.o. if a ward or
under supervision order of CFSA
CAS
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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
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”.
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“serious risk to road safety”
Unknown risk
Condition is temporary
Duty to Warn/Protect: Law
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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
Ethical Basis
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Need vs Privilege
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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).
Ethical Basis
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An extension of “do no harm” to the patient
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“Save him from his actions”
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In therapy, it shows we care enough about
the pt and the treatment to set limits on
behaviour
Ethical Basis
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“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).
Statutes
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37 states (US)
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Permissive vs Compulsory
Differs by state but common ingredients:
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Imminence
Expressed threat
Identifiable victim
–
J Am Acad Psych Law (2010); 38(4).
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Canada
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No statute (no specific legislation)
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Guided by common law/case law
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Statutes are clearer and, possibly, more
protective
Canada: Common Law
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Historic: There is no duty to control the
conduct of another or warn those at risk.
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Currently: Above is not true if you have a
special relationship with the person inflicting
the violence.
Can J Psych (2000); 45(10).
Canada: Smith v Jones (1999)
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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.
Canada: Smith v Jones
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Did not specify what exact steps an expert
might take to protect the public
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Said it might be appropriate to notify potential
victim or the police.
Examples from Statutes (US)
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Duty present in the law but no duty found in
the particular case:
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No identifiable victim communicated
Time elapsed since the treatment
No duty because potential victim already
knew
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J Am Acad Psych Law (2010); 38(4).
Canada
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Identifiable victim (Wenden v Trickha, 1991)
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Time Elapsed (Ahmed v Stefaniu, 2006)
J Am Acad Psych Law (2009); 37(2).
How do you proceed in Canada in
2012?
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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.
How should you proceed in
Canada in 2012?
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Acting = Law suit?
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Didn’t wait until pt not intoxicated
Pt not hospitalized for 72 hrs to fully assess first
Notify police?
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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)
How should you proceed in
Canada in 2012?
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“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).