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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”.

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Emergency Psychiatry: Aspects of Breaching Confidentiality


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Presentation Transcript
objectives
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
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 confidentiality1
Doctor-Patient Confidentiality
  • Not Lawyer-Client Privilege
    • Doctor-patient confidentiality is less protected
  • Statutes vs Common Law/Case Law
cas duty to report
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
slide6
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
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
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
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 basis1
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 basis2
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
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
Canada
  • No statute (no specific legislation)
  • Guided by common law/case law
  • Statutes are clearer and, possibly, more protective
canada common law
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
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
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
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).

canada1
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
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
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 protect

J Am Acad Psych Law (2003); 31(4)

Psychiatr Serv (2000); 51(6)

how should you proceed in canada in 20121
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).