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Lecture 10

Health Sciences 3101A/B Lecture 10: Chapter 10 - confidentiality and privilege

4 Pages

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 relationship  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 ) o Privacy commissioner has broad authority to issue remedial orders and award civil damages against those who are subject to an order or who violate act  HCP who violate a professional college’s code of ethics can be reprimanded D. Explaining and Limiting Confidentiality  A single set of policies can be developed to meet all obligations  HCP should explain confidentiality policies to pt at outset of relationship  HCP can limit their undertaking of confidentiality regarding team approach” and other aspects of their practice  HCP may wish to limit their confidentiality obligations in regards to pt who pose risk of death of injury to themselves/others. Part 2: General Principles of Privilege A. The Legal Concept of Privilege  Privilege refers to the right to refuse to disclose confidential information when testifying, subpoenaed or subject to a mandatory reporting obligation  In the absence of privilege, HCP can be compelled to release confidential documents, testify and answer any questions in legal proceeding  In common law, privilege is granted in several categories of relationships  Can be granted pursuant to federal and provincial legislation such as evidence act B. Solicitor/client Privilege  Commone law privilege is only between lawyer and his client.  Limited to information that client discloses in course of seeking legal advice; cant be waived by lawyer  Does not apply to physical evidence and statements which are illegal  No absolute: breached if disclosre is o Only way to establish innocence o Necessary to avert clear risk of death or harm to person or group  Lawyers are permitted to breach this privilege if they believe there is a risk of harm C. Other categories of Privilege  Litigation Privilege o Common law privileges statements prepared in contemplation of litigation o Narrow litigation privilege in favour of broader disclosure in civil process o Only applies if the purpose was furthering litigation and it ceases once it ends o Lawyer/client priv applies regardless if liti
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