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.
In December 2019, Ontario’s Attorney General introduced Bill 161, the Smarter and Stronger Justice Act (the “Act”), which became law on July 8, 2020. The Act hopes to simplify a complex and outdated justice system by bringing changes to how legal aid services are delivered, how class actions are handled, and how court processes are administered.
Of note, the Act has amended the Judicial Review Procedures Act (JRPA) to establish new rules as to when an application for judicial review may be brought.
Any decisions made on or after July 8, 2020 are now subject to a 30-day limit for bringing an application for judicial review unless another Act provides otherwise. Courts, however, retain powers to extend the time for making an application for judicial review if satisfied that there are apparent grounds for relief and that no prejudice or hardship will be incurred by the delay. Before these amendments, the JRPA did not set out any time limits for bringing an application, but courts had powers to extend the time to bring an application if another Act prescribed the limit.
In early August 2020, the Federal Minister of Health granted an exemption under the Controlled Drugs and Substances Act (CDSA) to four terminally ill Canadians to use psilocybin in their end of life care.
Psilocybin is one of the active ingredients/chemicals in “magic mushrooms,” the other is psilocin. Both psilocybin and psilocin are controlled substances under Schedule III of the CDSA. The sale, possession, production, etc. are prohibited unless authorized for clinical trial or research purposes under Part J of the Food and Drug Regulations. Both have been illegal in Canada since 1974. According to Health Canada, there are no approved therapeutic products containing psilocybin in Canada. However, the purified active ingredient, i.e. psilocybin, is being studied in supervised clinical settings for its potential to treat various conditions such as anxiety and depression.