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Chapter 10.docx

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Western University
Law 3101A/B
Robert Solomon

Chapter 10: Confidentiality and Privilege Part 1: General Principles of Confidentiality A. Legal Concept of Confidentiality - “confidentiality” – the obligation not to willingly disclose information obtained in confidence from a person, without that person’s consent - Health professionals who disclose patient information because they are required to do so pursuant to a search warrant, subpoena, or other court order - They would not be breaching confidentiality in complying with their mandatory reporting obligations under various statues – Child and Family Services Act (child abuse), Health Protection and Promotion Act (reportable, virulent, and communicable diseases) - The courts will generally recognize that an obligation of confidentiality arises when circumstances create a reasonable expectation of privacy o It is assumed that all treatment and counseling professionals owe an obligation of confidentiality even in the absence of discussion o Confidentiality is viewed as an inherent element of the relationship - Obligation of confidentiality applies to all information that the patient provides - Applies to patient information they have received from other health professionals - The fact that a person is a patient is confidential – cannot be disclosed without the patient’s consent - Health professionals should obtain their patient’s consent at the outset of the relationship to the acceptable means of communicating with them o Professionals may be held in negligence for failing to communicate with patients regarding follow-up appointments - The obligation of confidentiality is generally limited to statements or observations made within the context of the treatment relationship - Courts have recognized that in certain limited circumstances, a person may be justified in breaching patient confidentiality B. Sources of Confidentiality Obligations - HPs will often be subject to two or more overlapping sets of confidentiality obligations - 1. There are numerous provincial statutes of specific and general application that create confidentiality obligations relevant to health professionals o HPs may also be subject to the confidentiality provisions of certain federal statutes - 2. Physicians, psychologists, nurses, and most other HPs are subject to Code of Ethics o Practitioners are required to:  Prevent inadvertent disclosures of confidential patient information  Refrain from disclosing such information unless they have the patient’s consent or they are required or authorized by law to do so  Take reasonable precautions to safeguard such information - 3. Legislation regulating the health professions typically makes a breach of confidentiality a specific ground for a finding of professional misconduct - 4. An individual who explicitly or implicitly promises to maintain confidentiality will be required to honour that obligation - 5. Courts tend to view confidentiality as an inherent part of any treatment or therapeutic relationship C. Consequences of Breaching Confidentiality - Adverse consequences of breaching confidentiality are dictated by the source of the obligation - Breach of a federal or provincial statutory confidentiality obligation can result in being charged, and if convicted, fined and/or imprisoned - Practitioners who breach the confidentiality provisions in the Code of Ethics may be censured by the association and/or forced to resign their membership o College or regulatory body could view this ethical beach as grounds for a finding of professional misconduct and suspend/revoke the practitioner’s license - The term “professional misconduct” is defined to include a breach of confidentiality - If services are provided pursuant to a contract  contractual liability - Wrongful disclosure of use of confidential patient information can give rise to civil liability independent of a contract - The action may be framed in terms of a breach of fiduciary duty D. Explaining and Limiting Confidentiality - To avoid legal problems, practitioners should explain their confidentiality policies to patient at the outset of the relationship o Should explain the legal concept of confidentiality - Practitioners may be required by law to disclose patient information without consent - Practitioners should also explain any limitations that they are putting on their undertaking of confidentiality - A standard policy of an agency can be modified to meet a patient’s particular concern – i.e. requesting that no information can be released to his or her family - Practitioners may wish to expressly limit their undertaking of confidentiality by indicating that patient information will not be treated as confidential if there are reasonable grounds to believe that the patient poses a significant risk or death or serious injury to him or herself, or others o This addresses the double bind situation – there is no mandatory reporting obligation in place o If practitioner breaches confidentiality, he/she can face serious legal consequences o If the practitioner maintains confidentiality and the patient kills or injuries a third party, the practitioner may be sued in negligence for failing to warn the victim Part 2: General Principles of Privilege A. Legal Concepts of Privilege - “privilege” – the legal right to refuse to disclose confidential information in giving testimony, when served with a subpoena, or when subject to a mandatory reporting obligation - Individuals who are called as witnesses in court or before other legal tribunals must answer all relevant questions that they are asked o In the absence of privilege, a witness who refuses to do so may be held in contempt of court o For those to whom privilege has been granted can challenge a subpoena or court order that demands disclosure of confidential information B. Solicitor-Client Privilege - At common law, the only professional relationship that is automatically privileged is that between lawyers and their clients - privilege is limited to statements made within the scope of the specific legal advice that is sought - The privilege belongs to the client – not the lawyer - Privilege does not extend to p
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