Imagine you are referred a patient. During the clinical interview, your new patient describes their intention to kidnap, rape and then kill someone or some group of similar persons. You become convinced that this individual is clearly dangerous and poses a threat to the named individual or group. In your opinion, they will likely commit the described offences and should be treated or confined, or possibly both. The interview ends and the patient leaves. What can or should you do next?
You are aware that the communications between you and the patient are confidential and protected from improper disclosure. You are not allowed to share confidential information about the patient’s history, condition, diagnosis etc. without the consent or authorization of the patient. Such consent is unlikely. Is there some exception? Is there a legal requirement or permission available?
You are also aware that any improper disclosure of confidential information renders you open to disciplinary proceedings before your College as well as a potential civil action against you by the patient.
Imagine now, that it was the patient’s lawyer that had referred the individual to you. You had been asked to see the patient in order to render an opinion to the lawyer about the patient’s condition. You are aware that the information is now protected by solicitor-client privilege. This privilege is a principle of fundamental importance to the administration of justice. It is the highest privilege recognized by the courts. How will this impact what you can or cannot do?
The Supreme Court of Canada ("SCC") dealt with this very issue in the above-noted case. There, the health professional was a psychiatrist. He was concerned that the patient was a public risk who would harm his intended targets in the commission of future criminal acts. The lawyer for the patient advised the physician that his concerns about the patient would not be shared with anyone and would remain confidential. There is no possibility of consent. The physician appealed to the courts to allow him to warn those in authority of his concerns in the interests of public safety.
Although the SCC was divided on the proper implementation of the exception, they were unanimous that the law recognizes occasions when a health care professional’s duty to society will outweigh the obligation of patient confidentiality. Such an exception would therefore only permit the practitioner to voluntarily disclose the information to the appropriate authority. The SCC expressly declined to comment on whether there was a positive duty to disclose in such circumstances. Any disclosure made must be strictly confined to the information needed to protect public safety.
The question a court must ask when considering whether the exception exists in the circumstances is an objective one. Would a reasonable person, given all the facts, consider the potential danger to be clear, serious, and imminent?The following factors are to be considered by the court in making its determination:
At Wise Health Law, we rely on our significant experience before discipline panels of various regulatory Colleges to provide our clients with exceptional legal guidance and skilled advocacy through the often-overwhelming discipline process. To find out more about how we can help, contact us online, or call us at 416-915-4234 to schedule a consultation.
The Chief Medical Officer of Health for Ontario has issued an updated Directive #2 (dated May 26, 2020) for Regulated Health Professionals in the province.
Pursuant to the updated Directive #2, all deferred non-essential and elective services by health care providers may be gradually restarted – subject to the rest of the requirements set out in the Directive.
The updated Directive #2 does not provide particularly detailed guidance to health professionals on how to proceed, likely because it applies to such a broad spectrum of health care and health professionals. It does, however, provide some principles to assist health care providers in making decisions as we enter this transitional period.
In addition to the mask and hand sanitizer shortages, Ontario’s response to COVID-19 highlights the need for more frontline health care workers. Each regulated health profession’s college responded differently, and we have discussed some of those changes in other posts to keep you apprised.
Today, we focus on the College of Physicians and Surgeons of Ontario (CPSO), who set out to increase the number of available and licenced physicians out on the frontlines through certificates of registration that authorize supervised practice of short duration. The temporary licences authorize practice for 30 days.
Undoubtedly, COVID-19 has affected how health professionals practice. Pharmacists across the country are not only experiencing changes in how they practice (for example, accepting emailed prescriptions, where appropriate) but the scope of their practice as well. The latter change is not permanent, although the disruptions in practice may be felt long after the COVID-19 emergency subsides.
On March 19, 2020, Health Canada issued a short-term section 56(1) exemption under the Controlled Drugs and Substances Act (CDSA) that would authorize pharmacists to prescribe, sell, or provide controlled substances in limited circumstances, or transfer prescriptions for controlled substances (the CDSA Exemption).