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Confidentiality and the Duty to Warn

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Confidentiality and the Duty to Warn PLATFORM * TRIBUNE Confidentiality and the duty to warn Irwin Kleinman, MD, FRCPC tive therapy or obtain therapy. As a consequence, more Resume: Ancree fermement dans les codes de deon- violent assaults could occur. tologie et le droit, la confidentialite est un aspect fon- Another approach to the rule of confidentiality is damental de la pratique de la medecine et le pilier through the principle of autonomy, in which patients are d'une relation therapeutique fondee sur la confiance. viewed as autonomous people who take responsibility 11 se peut a l'occasion qu'un medecin doive enfrein- for and make decisions about their health care. By exten- dre les regles de la confidentialite. Les jugements sion, patients control access to information about them- rendus par les tribunaux aux Etats-Unis dans le cas selves. Our respect for the individual underlies the Tarasoff, ont etabli le devoir de proteger, qui peut principle of autonomy; this respect obliges physicians comporter ou non un avertissement 'a la victime not to reveal information about patients without their eventuelle ou 'a la police. La ou l'on fait erreur, toute- consent. fois, c'est lorsqu'on croit que les tribunaux ont im- The American Medical Association (AMA) and the pose le devoir de prevenir. L'AMC devrait publier un CMA address confidentiality in their codes of ethics. enonce de politique pour clarifier les limites du de- The AMA code states that the physician shall "safeguard voir de prevenir. Entre-temps, les medecins devraient patient confidences within the constraints of the law."2 reflechir a la question et tirer leurs propres conclu- The CMA code states that an ethical physician "will sions. keep in confidence information derived from a patient or from a colleague regarding a patient, and divulge it only C fonfidentiality is fundamental to medical practice. with permission of the patient except when otherwise re- The physician is obliged to keep what patients quired by law."3 Both codes clearly state that confiden- tell them private, and this forms the foundation tiality is an ethical imperative that must be followed. of a trusting therapeutic relationship. The principle of Only a legal obligation would override this imperative. confidentiality is firmly established in codes of ethics The principle of confidentiality expressed in codes and the law. Occasionally, however, it may be necessary of ethics has been extended into law. For example, the for physicians to breach confidentiality. Health Disciplines Act, which regulates the medical pro- In Western codes of medical ethics the principle of fession in Ontario, states that professional misconduct confidentiality first appeared in the Hippocratic oath' "means giving information regarding a patient's con- and can be justified by either the consequences it pro- dition or any professional services performed for a pa- duces or the principle it expresses. From a consequen- tient to any person other than the patient without the tialist perspective it could be argued that if con- consent of the patient unless required to do so by law."4 fidentiality did not exist, information that could ad- According to this act, breaking confidentiality, except versely affect the patient might be revealed to third par- when required by law, could result in disciplinary action ties. Without assurance of confidentiality patients might by the College of Physicians and Surgeons of Ontario. hesitate to reveal information that could be necessary for Directives that could oblige physicians to reveal in- treatment, which would adversely affect their health. formation without a patient's consent are legislated or Furthermore, dangerous patients might not disclose in- based on precedent. The most notable of these are laws formation, such as violent fantasies, necessary for effec- that involve the reporting of suspected child abuse, pa- Dr. Kleinman is chairman of the Ethics Committee and is in the Department ofPsychiatry, Mount Sinai Hospital, and is a member of the Centre for Bioethics, University of Toronto, Toronto, Ont. Reprint requests to: Dr. Irwin Kleinman, Department ofPsychiatry, Mount Sinai Hospital, 600 University Ave., Toronto, ON MSG IX5 DECEMBER 15, 1993 CAN MED ASSOC J 1993; 149 (12) 1783 tients who suffer from designated diseases and those fornia Supreme Court agreed to rehear the case in a deemed unfit to drive, reports to workers' compensation rarely employed option.9 boards and the completion of certificates under the Vital The rehearing established a duty to protect that may Statistics Act.' Examples of common law decisions or may not include a warning to the potential victim or (precedents) that define the limits of confidentiality are the police:7 "Once a therapist does in fact determine, or from Tarasoff v. Regents of the University of California6' under applicable professional standards reasonably (hereafter referred to as Tarasoff). should have determined, that a patient poses a serious danger of violence to others, he bears a duty to exercise Case example reasonable care to protect the foreseeable victim of that danger." Furthermore, "the therapist's obligations to his I presented the following case at a recent seminar. patient require that he not disclose a confidence unless such disclosure is necessary to avert danger to others, A 42-year-old man asked to be admitted to hospital so that he and even then that he do so discretely, and in a fashion would not kill his wife, because earlier that day he had found that would preserve the privacy of his patient to the her in bed with another man. This evoked such intense feel- fullest extent compatible with the prevention of the ings of jealousy and rage and thoughts of homicide that he threatened danger."7 went to a hospital emergency department as a preventive mea- In terms of Tarasoff there was no duty to warn in sure. After a complete evaluation a voluntary admission was arranged. The attending resident wondered, however, whether my example. Because the man was admitted to hospital he had a duty to warn the patient's wife. he posed no significant danger to others. If the patient then asked to be discharged he could have been detained Eight of the nine second-year psychiatry residents with a civil commitment procedure. Reasonable care had at the seminar considered that the patient's wife should already been taken to protect the foreseeable victim. Any have been notified, even though the patient was admitted disclosure to the wife, therefore, would be contrary to to hospital. Although the hospital admission effectively the Tarasoff decision on maintaining confidentiality to protected the wife, most of the residents felt that the the fullest extent possible while preventing danger.7 If Tarasoff decisions`7 imposed a "duty to warn." The Can- the attending resident had been unable to protect the adian Psychiatric Association's position on confidential- man's wife with either a voluntary or involuntary admis- ity and dangerousness in the doctor-patient relationship sion to hospital the resident would have been obliged to is ambiguous on this issue: "If it is felt that a potential inform either the wife of her risk or the relevant authori- victim should be informed, hospitalization of the patient ties, such as the police.'` should become a serious condition if the patient fulfils the criteria outlined in the relevant Provincial Mental The Wenden decision Health Act.... A refusal by the patient to allow a breach of confidentiality should not deter the giving of a warn- Although a judgement in a US court does not im- ing to the potential victim if this is indicated in the phys- pose a legal duty upon a Canadian physician it could ician's judgement."8 reasonably be expected that the Canadian courts would apply the reasoning of the Tarasoff decisions." This oc- The Tarasoff decisions curred recently in the case of Wenden v. Trikha, Royal Alexandra Hospital and Yaltho'' (hereafter referred to as To appreciate better the duty to warn one must ex- Wenden). amine the Tarasoff decisions.67 In Tarasoff the treating Mr. Trikha, a voluntarily admitted psychiatric pa- psychologist had reason to believe that his patient, Mr. tient, eloped from the psychiatric ward of the Royal Poddar, would kill Ms. Tarasoff, a university student. Alexandra Hospital, Edmonton, drove a car at high The therapist notified the campus police, who picked up speeds through numerous traffic lights and crashed into Poddar but then released him into his own custody be- Ms. Wenden's car. Wendon had numerous residual med- cause he appeared rational. The therapist's supervisor ical deficits and eventually lost custody of her three chil- said that no further action should be taken to detain Pod- dren because of her inability to care for them properly.'2 dar. Two months later Poddar murdered Tarasoff. The court concluded that a psychiatrist, aware that The first of the two court decisions on this matter his patient represented a serious danger to the well-being established a duty to warn,6 the court concluding that of a third party, owed a duty of care to take reasonable "the public policy favouring protection of the confiden- steps to protect such a person or people.'2 In Wenden, tial character of the patient-psychotherapist communica- however, the court found that there was no way to fore- tion must yield in instances in which disclosure is see that Trikha would pose a threat to himself or others essential to avert danger to others. The protective privi- and therefore concluded that there was no basis for the lege ends where the public peril begins." Because of per- psychiatrist to impose greater restraints on him. sistent lobbying by the American Psychiatric In applying the Wenden decision to my example Association and the importance of the issues, the Cali- one can see that reasonable steps had been taken to pro- 1784 CAN MED ASSOCJ 1993; 149(12) LE 15 DECEMBRE 1993 tect the man's wife.
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