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Lecture 10

Health Sciences 3101A/B Lecture Notes - Lecture 10: Miscarriage, Fiduciary, Law Of Obligations

4 pages94 viewsFall 2016

Health Sciences
Course Code
Health Sciences 3101A/B
Robert Solomon

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Chapter X: Confidentiality and Privilege
Part 1: General Principles of Confidentiality
A. The Legal Concept of Confidentiality
Legal obligation of confidentiality is the obligation not to willingly disclose
information obtained in confidence from a person without the persons consent
Disclosure may be required by search warrants, mandatory reporting obligations.
Since these are not willingly, they don’t constitute breaches
Obligation arises in situations that created an expectation of privacy. Courts assume
that all tx, counseling and care professionals owe this obligation to their pts
The fact that a person is a pt is confidential. HCP should talk about confidentiality at
outset of relationships.
Confidentiality is limited to information received in course of professional
Confidentiality will not arise in activities of daily living occurring in public or to
statements made in presence of third party
Being a passive recipient of confidential information does not breach confidentiality
If there is no relationship of expected confidentiality/privacy, then information is
available to others.
Obligation of confidentiality is not absolute, but may justifiably be breached in two
limited circumstances: when attempting to prevent serious miscarriage of justice; or
when attempting to avert a clear and imminent risk of death/harm
B. Sources of Confidentiality Obligations
Practitioners are subject to common law, equitable, regulatory, statutory, and ethical
obligations of confidentiality
HCP who explicitly/implicitly indicate that information will be held confidential can
have common law and tort obligations to do so.
HCP have fiduciary duty to not misuse pt information
Regulatory colleges impose obligations of confidentiality on their members
Specific applications (PHA< MHA, CFSA) and general applications (FIPPA,
MFIPPA, and PHIPPA) contain detailed confidentiality provisions
Healthcare associations (CMA, CAN, CASW) have codes of ethics as well
C. Consequences of Breaching Confidentiality
Breaching common law or undertaking of condifentiality may result in:
o Sued by pt for breach of contract
o Fired for cause pursuant to the employment contract
o Held liable for the tort of “intrusion on seclusion” (wrongful access)
o Liable for the tort of invasion of privacy or wrongful disclosure
Breaching equitable obligation of confidentiality may resuly in being sued for breach
of fiduciary duties
Regulatory colleges may reprimand, fine or suspend/revoke license of a member who
violates his/her professional obligations of confidentiality.
Breaching provincial/federal statutory confidentiality obligation may result in being
charged with an offence and fines/imprisonment (under PHIPA, a HCP can be fined
50 G and organization 250 G )
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