The legal assault on physician-patient privilege

Marilou McPhedran

Canadian Medical Association Journal 1995; 153: 1502-1506

En bref

Marilou McPhedran, a lawyer who is currently employed at Women's College Hospital in Toronto, chaired Canada's first inquiry into the sexual abuse of patients, commissioned by the College of Physicians and Surgeons of Ontario.

This article, the first of two, will provide some basic definitions, summarize some principles and focus mainly on two cases - O'Connor from British Columbia and Beharriell from Ontario. Both are awaiting imminent decisions following appeals to the Supreme Court of Canada. The second article will appear after the Supreme Court has released its decisions. (See Can Med Assoc J 1996; 154: 1760-1763 [full text / résumé]


In brief

Can there be appropriate and just disclosure of medical and therapeutic records, given that such records are defined and acted upon quite differently in the arenas of law and health? Medical and therapeutic records are kept for healing purposes, not as findings of fact for a court. However, Canadian courts increasingly are being asked to disregard privilege between doctor and patient when that patient has reported a sexual assault. The Supreme Court will soon rule in two cases that may change policies and laws and affect Canadian physicians, other health care professionals and hospitals.

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En bref

Est-il possible de dévoiler des dossiers médicaux et thérapeutiques de façon juste et appropriée, étant donné que ces dossiers font l'objet de définitions et d'interventions très différentes dans les domaines du droit et de la santé? On garde des dossiers médicaux et thérapeutiques pour des raisons de guérison et non comme conclusion de fait pour un tribunal. Les tribunaux du Canada se voient toutefois demander de plus en plus de passer outre au privilège entre le médecin et le patient lorsque le patient en question a signalé une agression sexuelle. La Cour suprême se prononcera bientôt sur deux cas qui pourraient provoquer, au niveau des politiques et des lois, des changements qui se répercuteront sur les médecins du Canada, d'autres professionnels de la santé et les hôpitaux.

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In 1993, after reading about a criminal trial in which a former patient alleged she had been raped and a man was subsequently convicted, a Nova Scotia psychiatrist contacted the Crown attorney and said he had doubts about the credibility of the woman's testimony. Some of his records about the patient were subsequently used as the basis for a successful appeal for a new trial.

On Canada's other coast, meanwhile, a British Columbia psychiatrist faced contempt-of-court charges because she refused two court orders to hand over her records about the therapy a rape complainant had received. In Ontario, where the battles over disclosure of complainants' personal records in criminal cases of sexual violation have intensified, two doctors are facing disciplinary review for releasing patients' records without their consent after receiving pretrial subpoenas.

As well, the Ontario Health Insurance Plan is being challenged for having delivered a patient's file directly to the lawyer for the accused in a sexual-assault criminal case, thereby supplying the names of some 100 doctors and other health care professionals who had ever treated the rape complainant. Most of them subsequently received subpoenas to produce all their records relating to her.

Earlier this year, two hospitals in Toronto, along with two legal-assistance organizations and a community agency for women, received pretrial subpoenas to produce all their records for the past 5 years. The subpoenas did not even mention the name of the rape complainant; to comply with the demand, the organizations would have had to bring their files to court by the truckload. Rather than automatically comply, they are trying to quash the subpoenas.

What's going on in our courts? Why is the issue of personal records in criminal sexual-assault and abuse cases now so "hot," when for some time doctors have quite routinely handed over patients' records in civil cases?

The answer lies in understanding the effect of Criminal Code amendments made in 1983 and 1992 and the 1982 enactment of Canada's Charter of Rights and Freedoms, combined with a 1991 Supreme Court of Canada decision - known as Stinchcombe - that extended the mandatory disclosure of evidence to the accused in criminal cases.

The reporting of sexual assault and sexual abuse increased by approximately 90% from 1984 to 1991. In 1991, 30 000 reports of sexual assault were made to Canadian police, although not all of them led to trials. Statistics Canada says that of national survey respondents who acknowledged that they had been sexually assaulted, only about 6% had gone to the police to press charges. Michael Edelson, an Ottawa defence lawyer, has noted that sexual-assault cases have become a "growth industry" for defence lawyers: "Every time I turn around there is more sperm and pubic hair in some file on my desk."

I will explore some contradictory approaches to the "rebalancing" of the rights of those accused of sexual assault and those who are the key witnesses making the allegations. Can there be appropriate and just disclosure of medical and therapeutic records, given that such records are defined and acted upon quite differently in the arenas of law and health? Medical and therapeutic records are kept for the purpose of healing, not as findings of fact for a court of law. Actually, rules of evidence generally categorize such records or testimony as "hearsay." Increasingly, however, Canadian courts are being asked to disregard privilege between doctor and patient when that patient has reported a sexual assault.

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Privilege between doctor and patient

Privacy is valued in our society. Personal records held by a doctor in trust for a patient have been considered "privileged," meaning that the documents are private unless a court orders them disclosed. Privilege is attached to personal records in two ways - by statute or common law. Regardless of the nature of the privilege, before a criminal trial begins the defence lawyer may try to obtain records from a third party, such as a doctor or hospital, by delivering a pretrial subpoena.

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The subpoena

A subpoena is a legal document that orders people to appear in court on the day stated, bringing with them all records in their possession or control "relating to the subject matter of the proceedings." In a physician's case this could mean all documents relating to a patient, such as a rape complainant. It is usually not difficult to get a subpoena, because Section 698 of the Criminal Code states that the defence only has to show that a person is "likely to give material evidence."

The person subpoenaed is not required to give the records to the defence automatically. Rather, once the person appears in court, the judge will hold a hearing to determine whether or not some or all of the records will be released to the defence.

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Statutory privilege

Personal records governed by statutes can include records created by physicians, hospitals, schools and other professionals or organizations. Different statutes contain different standards or tests that must be met before privileged records are to be released to a court when requested by the defence in a criminal case.

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Common law privilege

Common law is derived from a body of consistent judicial decisions about an issue that has not been contradicted by subsequent statutes. The common law test for considering whether records are privileged includes the following four characteristics:

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The importance of the ruling

Canadian physicians currently face contradictory court rulings on disclosure of privileged records and communications. The Supreme Court of Canada's imminent decisions in O'Connor and Beharriell are expected to establish clearer guidelines for health care professionals and their associations.

While waiting for the Supreme Court's decisions, let's explore what is at stake in a range of cases that affect whether or not physicians keep or release patients' records.

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The defence strategy

When personal records are not within the Crown's control, defence lawyers try to get pretrial subpoenas to gain access to information about a woman's health that has the potential not only to discredit her as a complainant but also to focus attention on her as the witness, and away from the accused. Then the trial is more about what the victim is like, rather then whether the accused violated her. Discrediting witnesses is an important trial technique. A vigorous defence is a defendant's right in our legal system. However, a line is crossed when our courts allow evidence about the key witness that, by feeding unsubstantiated prejudices, heightens the chance of acquittal.

The shift in defence strategy to obtain rape complainants' personal records was documented in the Lawyers Weekly in May 1988 when Edelson, the Ottawa defence lawyer, pointed out the advantages of attacking the complainant at the pretrial stage: "You have to go in there as defence counsel and whack the complainant hard . . . get all the medical evidence; get the Children's Aid Society records . . . and you've got to attack with all you've got so that he or she will say, `I'm not coming back.' "

The shift toward questioning complainants on their past sexual history by using personal records is now being documented. In a survey of the Ontario Coalition of Rape Crisis Centres, it was reported that 46 subpoenas were sent to centres in 1994. The Ottawa Rape Crisis Centre noted that in its first 18 years of operation it did not receive a single request for access to records; however, nine were received in 1994.

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Damage to the patient

This growing trend toward court-ordered production of medical records brings a new and harmful dimension to women's experience with the criminal legal system. Records subpoenaed by the defence may include notes from the complainant's physician or rape-crisis counsellor, school or Children's Aid Society records, personal diaries and, in one recent case, the hard drive of the complainant's computer.

At the time of her decision to refuse to comply with a British Columbia Supreme Court order to turn over 7 years of therapy records against the wishes of her patient, Dr. Kathleen Parfitt told reporters: "In my opinion I'm being ordered to do something which is harmful to my patient." She said the court did not seem to appreciate her concerns about the potential for psychologic damage. "People have come to me and said that they would never have gone into therapy if they knew this would happen."

In a 1991 decision, the Divisional Court of Ontario recognized some fundamental rights for witnesses: "The information contained in the medical records was compiled in circumstances giving rise to the highest expectation of confidentiality, which deserves to be zealously guarded in the interests not only of the persons who are the subjects of the information but also in the interests of promoting trust and confidence of the public in the administration of medical facilities."

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The confusing state of the law

Manitoba law professor Karen Busby has identified 39 Canadian cases between November 1993 and May 1995 in which the defence tried to gain access to the personal records of Crown witnesses. Most involved criminal trials with allegations of sexual assault. In 15 of the 39 cases, judges refused to grant access to the records. In about half the cases in which private records were protected, the decisions were based on professional privilege, or statutory privilege, or on the argument that access to such private records was contrary to the public interest.

However, in the 1995 Girard decision, which has also been appealed to the Supreme Court of Canada, an Ontario judge took a different view: "The right of confidentiality, then, must be servient to the superior rights of the accused provided by s.7 and 11(d) of the Charter."

In the O'Connor case, former Roman Catholic bishop Hubert Patrick O'Connor was charged with sexually assaulting female students at an Indian residential school in British Columbia, where he was principal in the 1960s.

Saying that it was following the Supreme Court of Canada's 1991 decision in Stinchcombe, the British Columbia Court of Appeal attempted to define better the balance between the right of the accused to all relevant information and the constitutional rights of witnesses to equality and security of the person in relation to their medical or therapeutic records. In Stinchcombe, the court had ruled that in a criminal case the Crown must disclose all relevant evidence to lawyers for an accused person. B

ecause of an appeal of O'Connor, the Supreme Court must now decide whether to endorse guidelines for disclosure in the British Columbia Court of Appeal's decision, or to create different ones.

In the Beharriell case, hospital and community-agency records are at issue. In 1994, the Sexual Assault Care Centre of the Plummer Memorial Public Hospital in Sault Ste. Marie, Ont., was ordered by a local judge to give defence counsel all documents it had relating to a university student ("LLA"); she was the complainant in a case involving the father of a friend, who was charged with indecently assaulting her between February and December of 1980, when she was 6. The university student had attended the Sexual Assault Care Centre for short-term counselling in January 1992.

Counsel for the centre argued that its records were privileged through two avenues: applying the common law test, and applying a statutory test analogous to s.35 of the Mental Health Act of Ontario (1990), in which psychiatric records are to be disclosed only if a court determines that it "is essential in the interests of justice."

The hospital and centre appealed the judge's order to produce LLA's records, but the Ontario Court of Appeal held that these "third parties" did not have the legal right, or standing, to bring such an appeal. That decision was then appealed to the Supreme Court, and is expected to be released when the court announces its decision in the O'Connor case.

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As the law currently operates, women who have been sexually violated are being forced to choose between giving up the privacy of their doctor-patient relationship or giving up access to the criminal legal system. It is ironic that the alleged action of the accused started the legal process, yet the witness risks yielding to public view her entire private life as the price for seeking justice. The upcoming Supreme Court decisions will clarify the degree to which doctor-patient records and interactions are truly privileged.
In part 2, I will summarize the top court's rulings and report on amendments to the Criminal Code that might result from them. (See Can Med Assoc J 1996; 154: 1760-1763 [full text / résumé]
Appreciation for research and analysis that greatly helped me is extended to Bonnie Agnew, Susan Bazilli, Andree Cote, Tara James, Freya Kristjanson, Lee Lakeman, the Legal Education and Action Fund, Pat Marshall, Leslie McCallum, Diane Oleskiw, Cristin Schmitz, Kate Stephenson and Lea Weir.
CMAJ November 15, 1995 (vol 153, no 10) / JAMC le 15 novembre 1995 (vol 153, no 10)