3.3 Duty of Confidentiality
Tracey M. Bailey, BA, LLB
- To confirm that a physician owes a duty of confidentiality to his/her patient and to understand the ethical and legal bases of this duty.
- To understand that, at times, ethics and/or the law will require or allow disclosure of confidential patient information without the consent of the patient.
- To identify some scenarios that would require and/or allow such disclosure; and to appreciate that because the law varies across the country, it is essential to be knowledgeable about the laws in the jurisdiction in which a physician practices.
Michael Worth, 28 years old, presents to his family physician with a variety of symptomatic issues. He describes anxiety and trouble sleeping, and requests an anxiolytic. Pressed for possible causes of the anxiety (e.g., situational, psychiatric, endocrine, drug use), he is evasive and becomes increasingly uncomfortable. The physician attempts to gather relevant information, but Mr. Worth is reluctant to provide further details that are essential to making a diagnosis and creating a plan for treatment. The physician reassures Mr. Worth that the private information he shares will be treated as confidential and more information is needed to be able to assist him. A short course of anxiolytics is prescribed and he is asked to follow-up, which he says he will do.
Over time, the physician develops a relationship of trust with Mr. Worth. At an appointment, Mr. Worth discloses a long-standing addiction to cocaine. This is a breakthrough as it provides the information needed to try to help Mr. Worth in his efforts to deal with his health problems. While he is intent on seeking treatment, he is not yet ready to share this information with his wife. He alludes to marital problems and asks if the information he has shared would ever be disclosed to her. He specifically requests that she not be told.
Mrs. Worth sets up an appointment to meet with the physician. She is extremely anxious and upset and is seeking advice regarding the recent behaviour of her husband. She says he is moody and prone to violent outbursts. While he has not physically harmed their child, she is worried that he will. She is also concerned because they continue to have no money to pay for necessities such as groceries and their mortgage. Although she and Mr. Worth both work full-time, their bank account is depleted almost immediately following deposits from their employers. In addition, an account they had established to fund their child's education was recently emptied. Her husband has given her a variety of excuses for this, but she doesn't know whether she should believe him. It is clear from the discussion that she is not aware of Mr. Worth's cocaine habit.
- Why is it important to keep patient information confidential?
- When can information be disclosed to family members?
- When must confidential information be disclosed?
- Is this a case where disclosure must be made? When might a physician have discretion to disclose confidential information?
- Canadian Medical Association (CMA). CMA Code of Ethics. Ottawa: CMA; 2004. Available from: http://policybase.cma.ca/PolicyPDF/PD04-06.pdf. Accessed January 24, 2009.
- McInerney v. MacDonald (1992), 93 DLR (4th) 415 (SCC).
- Department of Justice Canada. Canadian Charter of Rights and Freedoms. Ottawa: Department of Justice Canada; 1982.
- Government of Alberta. Health Information Act. Edmonton: Queen’s Printer; 2001.
- Tarasoff v. Regents of the University of California, 551 P. 2d 334 (Cal. 1976).
- Smith v. Jones,  1 SCR 455.
- Kleinman I, Baylis F, Rodgers S, Singer P. Bioethics for clinicians: 8. Confidentiality. Canadian Medical Association Journal 1997; 156: 521–4.
- Picard EI, Robertson GB. Legal Liability of Doctors and Hospitals in Canada, 4th edn. Toronto: Thomson Carswell; 2007.
- Re Inquiry into the Confidentiality of Health Records in Ontario (1979), 98 DLR (3d) 704 at 714 (Ont. C.A.) (this was quoted with approval by the SCC at (1981), 38 NR 588 at 608 based on the fiduciary obligation of physicians to their patients.