Does a Health Professional have a Duty to Warn?

The Scenario

Imagine you are referred a patient. During the clinical interview, your new patient describes their intention to kidnap, rape and then kill someone or some group of similar persons. You become convinced that this individual is clearly dangerous and poses a threat to the named individual or group. In your opinion, they will likely commit the described offences and should be treated or confined, or possibly both. The interview ends and the patient leaves. What can or should you do next?

Doctor-Patient Privilege

You are aware that the communications between you and the patient are confidential and protected from improper disclosure. You are not allowed to share confidential information about the patient’s history, condition, diagnosis etc. without the consent or authorization of the patient. Such consent is unlikely. Is there some exception? Is there a legal requirement or permission available?

You are also aware that any improper disclosure of confidential information renders you open to disciplinary proceedings before your College as well as a potential civil action against you by the patient.

Solicitor-Client Privilege

Imagine now, that it was the patient’s lawyer that had referred the individual to you. You had been asked to see the patient in order to render an opinion to the lawyer about the patient’s condition. You are aware that the information is now protected by solicitor-client privilege. This privilege is a principle of fundamental importance to the administration of justice. It is the highest privilege recognized by the courts. How will this impact what you can or cannot do?

Smith v. Jones:

The Supreme Court of Canada ("SCC") dealt with this very issue in the above-noted case. There, the health professional was a psychiatrist. He was concerned that the patient was a public risk who would harm his intended targets in the commission of future criminal acts. The lawyer for the patient advised the physician that his concerns about the patient would not be shared with anyone and would remain confidential. There is no possibility of consent. The physician appealed to the courts to allow him to warn those in authority of his concerns in the interests of public safety.

Although the SCC was divided on the proper implementation of the exception, they were unanimous that the law recognizes occasions when a health care professional’s duty to society will outweigh the obligation of patient confidentiality. Such an exception would therefore only permit the practitioner to voluntarily disclose the information to the appropriate authority. The SCC expressly declined to comment on whether there was a positive duty to disclose in such circumstances. Any disclosure made must be strictly confined to the information needed to protect public safety.

The Legal Test

The question a court must ask when considering whether the exception exists in the circumstances is an objective one. Would a reasonable person, given all the facts, consider the potential danger to be clear, serious, and imminent?

The following factors are to be considered by the court in making its determination:

• There is a clear risk to an identifiable person or group of persons;
• The risk is one of serious bodily harm or death;
• The danger is imminent.

The SCC recognized that these three factors will overlap and vary in significance depending on the facts before the court but they all must be considered.

Takeaways

• If you find yourself in a similar situation, the best course of action is to seek immediate legal advice;
• Although there may be no positive duty to disclose, such a possibility should be considered with your legal advisor as it is likely that others (ie. the families) may consider a civil action against you for damages;
• You must also consider with your legal advisor, where and how you wish to disclose the information to the authorities. It is likely safest to do so through a court order;
• The practical problem is, of course, timing. In the SCC decision, the interview took place on July 30^th, 1997 and the court released its decision in the fall of 1999, more than two years later. Any imminent danger would long since have materialized negating the value of the information.

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