Emergency Psychiatry:Aspects of Breaching Confidentiality

Eric Prost, MD, FRCPC.June 27, 2012.

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”.

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

Doctor-Patient Confidentiality

Not Lawyer-Client Privilege– Doctor-patient confidentiality is less protected

Statutes vs Common Law/Case Law

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

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

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

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

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).

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

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).

Statutes

37 states (US)– Permissive vs Compulsory

Differs by state but common ingredients:– Imminence– Expressed threat– Identifiable victim

– J Am Acad Psych Law (2010); 38(4).

Canada

No statute (no specific legislation)

Guided by common law/case law

Statutes are clearer and, possibly, more protective

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).

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.

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.

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).

Canada

Identifiable victim (Wenden v Trickha, 1991)

Time Elapsed (Ahmed v Stefaniu, 2006)

J Am Acad Psych Law (2009); 37(2).

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.

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 protectJ Am Acad Psych Law (2003); 31(4)Psychiatr Serv (2000); 51(6)

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).