Presentation on theme: "Emergency Psychiatry: Aspects of Breaching Confidentiality"— Presentation transcript:
1 Emergency Psychiatry: Aspects of Breaching Confidentiality Eric Prost, MD, FRCPC.June 27, 2012.
2 ObjectivesTo review some common necessary and lawful breaches of confidentiality in the ERTo consider the ethical and legal basis for breaching in the “duty to protect”.
3 Doctor-Patient Confidentiality Calling CASNotifying MTOWarning potential victims; notifying policeWorking with an SDMNotifying partner of danger of infectious diseaseDivulging medical records if court orderedDiscussing work with spouse, clergy, lawyer
4 Doctor-Patient Confidentiality Not Lawyer-Client PrivilegeDoctor-patient confidentiality is less protectedStatutes vs Common Law/Case Law
5 CAS: Duty to ReportCFSA: “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 privilegeChild = <16 y.o. Child = <18 y.o. if a ward or under supervision order of CFSA
6 CAS Report yourself Report “forthwith” Ongoing obligation to report A professional who fails to report can be finedDo not “investigate” yourselfNot obligated (or allowed) to give all medical information
7 MTO: ReportingHighway 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 riskCondition is temporary
8 Duty to Warn/Protect: Law Tarasoff I (1974), Calif.Tarasoff II (1976), Calif.Wenden v Trickha (1991), AB, CanadaSmith v Jones (1999), Supreme, CanadaEwing v Goldstein (2004), Calif.Ahmed v Stefaniu (2006), ON, Canada
9 Ethical Basis Need vs Privilege Need to preserve life and alleviate sufferingSometimes need extends beyond the individual patientTherefore, doctors should preserve life and alleviate suffering “in specific cases of preventable harm”Am J Bioethics (2006); 6(2).
10 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
11 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).
12 Statutes 37 states (US) Differs by state but common ingredients: Permissive vs CompulsoryDiffers by state but common ingredients:ImminenceExpressed threatIdentifiable victimJ Am Acad Psych Law (2010); 38(4).
13 Canada No statute (no specific legislation) Guided by common law/case lawStatutes are clearer and, possibly, more protective
14 Canada: Common LawHistoric: 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).
15 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.
16 Canada: Smith v JonesDid not specify what exact steps an expert might take to protect the publicSaid it might be appropriate to notify potential victim or the police.
17 Examples from Statutes (US) Duty present in the law but no duty found in the particular case:No identifiable victim communicatedTime elapsed since the treatmentNo duty because potential victim already knewJ Am Acad Psych Law (2010); 38(4).
18 Canada Identifiable victim (Wenden v Trickha, 1991) Time Elapsed (Ahmed v Stefaniu, 2006)J Am Acad Psych Law (2009); 37(2).
19 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.
20 How should you proceed in Canada in 2012? Acting = Law suit?Didn’t wait until pt not intoxicatedPt not hospitalized for 72 hrs to fully assess firstNotify police?Michigan and S. Carolina studyPolice have minimal experience with this and, therefore, not best option to protectJ Am Acad Psych Law (2003); 31(4)Psychiatr Serv (2000); 51(6)
21 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).