Physician-patient privilege: the legal assault continues

Marilou McPhedran

Canadian Medical Association Journal 1996; 154: 1760-1763

En bref

See also:
  • Letter: Legal limits to physician-patient confidentiality
    Marilou McPhedran, the lawyer who chaired Canada's first inquiry into the sexual abuse of patients by physicians, is corporate director of women's health partnerships at Women's College Hospital, Toronto.

    © 1996 Marilou McPhedran

    In Brief

    The confidentiality of patient records, particularly in cases where sexual assault is alleged, has been called into question by two recent Supreme Court decisions. Toronto lawyer Marilou McPhedran discusses the recent Beharriell and O'Connor decisions and how they affect physicians.

    En bref

    La confidentialité des dossiers des patients, surtout dans les cas d'agression sexuelle alléguée, a été remise en question par deux décisions récentes de la Cour suprême. Une avocate de Toronto, Marilou McPhedran, discute des récentes décisions Beharriell et O'Connor et décrit comment elles touchent les médecins.
    This is the second article in a two-part series. Part I (CMAJ 1995; 153: 1502, 1504-1506 [full text / résumé]) discussed the indecision within the law concerning the constitutional privacy rights of patients engaged in court proceedings, and the resulting obligations this creates for physicians and other health care practitioners. This second part outlines the changes generated by recent Supreme Court decisions and some of the unresolved uncertainties that will affect physicians and their patients.

    Recent legal decisions concerning patients who are complainants in criminal proceedings that allege sexual violation raise difficult questions for physicians. Doctors' longstanding perceived obligation to respect their patients' privacy by honouring the confidentiality of personal medical and therapeutic records could always be modified through a judicial order or statutory direction to disclose. The rules have never been simple or clear, but until recently honouring confidentiality has been the accepted norm, as outlined in the CMA's Code of Ethics.

    Contradictory lower-court decisions caused some confusion for physicians and institutions such as hospitals, which are defined by the courts as "third parties" to criminal-law proceedings. Technically, patient records are available to attorneys defending against all alleged crimes, but the demand for disclosure of private personal records have targeted, almost exclusively, the medical records of patients who have made allegations of sexual assault, sexual abuse or incest, and who are the key witnesses in ensuing legal proceedings. As explained in the first article in this two-part series, this defence tactic arose following amendments to the Criminal Code that effectively placed certain information about the sexual history of patient-complainants beyond the scope of most criminal proceedings.

    Medical records and the definition of truth

    Given that the goal of medical/therapeutic relationships is to promote healing, and as such they may involve emotional or psychological searching, records generated through this process are not maintained by doctors as a technical or historical record. Exploration of the feelings triggered by assault or abuse in order to lessen the damage done by these violations often results in unguarded, disorganized and sometimes contradictory thoughts. As Ontario Crown counsel Miriam Bloomenfeld has noted, "the records are often an inherently unreliable foundation for constructing an historical account of an offence. Ironically, it is that very unreliability that makes them attractive to opposing parties seeking to discredit or contradict a key witness."

    Dr. Kathleen Parfitt, a British Columbia psychiatrist, was the subject of a defence application to hold her in contempt for refusing to release certain records (A.M. v Ryan); it is currently on appeal to the Supreme Court of Canada. In an interview for this article, Parfitt outlined her concerns about the impact these legal challenges have on patients.

    "I explain to my patients that if we are going to court then we cannot do therapy, because to heal we need confidentiality and there can be no confidentiality when we are going to court. If my patient is an abused child, then I tell the parents early on that we have to look at the consequences of going to court. These changes in the law are proving to be very damaging to therapists' work. We can no longer give our full attention to the needs of our patients, because we have to keep an eye out for possible court intervention."

    In the past practitioners' responses to requests to release records in their care and control, or even to acknowledge that such records exist, have varied widely. In 1995 the Supreme Court of Canada heard appeals in the O'Connor and Beharriell cases; both decisions were released in December, and are definitive across the country. They will provide the guiding rules for third-party record holders such as physicians, hospitals and sexual-assault centres -- unless Parliament enacts legislation that overrides or modifies the directives. The two decisions have significantly reduced or destroyed the privacy rights of complainants, and legislative amendments are currently being considered by the federal justice minister.

    I want to discuss the changes generated by these two decisions and some of the unresolved uncertainties that will have an impact on physicians and their patients.

    The decisions

    Lawyers for former Roman Catholic bishop Hubert Patrick O'Connor argued that his trial should have been stayed because the Crown delayed in complying with an order to disclose records about four complainants that were kept by psychiatrists, counsellors, psychologists, therapists and school officials. Six of the nine Supreme Court judges ruled that the trial should not be stayed. Although this decision ensured that O'Connor must stand trial, it also introduced a general, two-step process for determining when a court should allow defence counsel to obtain the therapeutic and personal records of complainants.

    This process is likely to hurt physician-patient confidentiality. This more invasive attitude of the current Supreme Court signals a significant shift away from previous attempts to balance the rights of victims and the accused. Now the rights of the accused essentially trump those of victims; in response, some physicians are altering aspects of their relationship with patients, including the way they maintain records.

    In the Beharriell case there were two key issues. Did the complainant and two counselling centres have the legal right, or "standing," to appeal a judge's pretrial order forcing disclosure of the complainant's therapeutic records to the defence? And did the judge who ordered the disclosure have the authority to do this, and did he follow the proper procedures?

    In Beharriell, the Supreme Court responded affirmatively to the first question, and answered the second by confirming judicial authority to order pretrial disclosure of medical and therapeutic records, providing that the two-step process outlined in O'Connor is followed.

    The shift in judicial attitude

    Until these recent cases Canadian courts, including the Supreme Court, had been quite consistent in their respect for the privacy of information contained in personal records. For example, in a 1988 Supreme Court decision (R. v Dyment) the court noted: "At one time, medical treatment generally took place within the home, or at the doctor's office, but even then, of course, the confidentiality of the doctor-patient relationship was fully accepted as an important value in our society. This goes back as far as the Hippocratic Oath. The Code of Ethics of the Canadian Medical Association sets forth, as item 6 of the ethical physician's responsibilities to his patient, that he `will keep in confidence information derived from his patient, or from a colleague, and divulge it only with the permission of the patient, except when the law requires him to do so.' "

    In a 1991 Ontario court decision (People First of Ontario v Niagara Regional Coroner), confidentiality in the medical relationship was highly valued: "The disclosure of medical records must be examined in the context of the strong public and individual interest in the privacy of personal medical information. It is hardly necessary, to quote legal authority, to establish that privacy and confidentiality of personal health information is a fundamental social and legal value in our community, a value of the highest level that deserves to be recognized and protected."

    That was then, and this is now. The more recent Supreme Court ruling in O'Connor sets out the threshold test for the first step of the two-step procedure defence counsel will use to obtain personal records of complainants from third parties. The court established a low threshold for a judge to order a third party to produce private records, explaining that "the meaning of `relevance' is expressed in terms of whether the information may be useful to the defence." And the majority of the judges agreed that: "While `likely relevance' is the appropriate threshold for the first stage of the two-step procedure, it should not be interpreted as an onerous burden upon the accused."

    However, three judges in the O'Connor case dissented on the issue of records held by third parties and proposed criteria that were more stringent than those favoured by the majority: "Private records, or records in which a reasonable expectation of privacy lies, may include medical or therapeutic records, school records, private diaries and social worker activity logs. . . . When deciding whether to order production of private records, the court must exercise its discretion in a manner that is respectful of Charter values. The constitutional values involved here are the right to full answer and defence, the right to privacy, and the right to equality without discrimination.

    ". . . Courts must remain alive to the fact that, in certain cases, the deleterious effects of production may demonstrably include negative effects on the complainant's course of therapy, threatening psychological harm to the individual concerned and thereby resulting in a concomitant deprivation of the individual's security of the person."

    Similar issues were raised in Beharriell, with the attorney general for Ontario and justice minister for Canada arguing for a more demanding test than just "likely relevance." The coalition of women's organizations that intervened argued that forcing third parties to disclose complainants' private records "would aggravate women's inequality by perpetuating the discriminatory stereotyping and discrediting of women." They also argued that forcing the release of such confidential records "would undermine the integrity of the justice system by deterring reporting of sexual assaults and distorting the fact-finding process."

    Professor Karen Busby of Manitoba thinks the two Supreme Court decisions are "utterly disastrous for women who have been sexually violated and for those who work with them. Of particular concern are the court's examples of when records are relevant and its failure to understand the negative effects of this practice, especially its refusal to recognize the impact of forced production of these records on women's equality rights."

    New guidelines

    How will the new directives affect physicians? First, they place new demands on doctors and other professionals. If a lawyer convinces a judge that personal records held by a third party might contain information useful to the defence, the third party must comply if the court demands that the records be handed over to the judge unless, as in Beharriell, the third party challenges the order. The judge can weigh whether the records' value as evidence is greater than the negative effect on the patient-complainant. If convinced that the former is true, the judge will hand the records over to the accused's lawyer. Even though a judge may decide that records should be produced and then disclosed to the defence, they will not automatically be admissible at trial.

    Second, the decisions expand the definition of relevance. While four of the Supreme Court judges agreed that "therapeutic records will only be relevant to the defence in rare cases," the majority anticipated that "there are a number of ways in which information contained in third-party records may be relevant."

    With this elastic definition now in force, doctors and other third party record-keepers should keep these practical considerations in mind:

    Physicians should remember that an application to force the release of patient records must be heard by a judge before the trial commences. First, the accused is supposed to offer written reasons why the records should be produced, and notice of the application must be given to the doctor, other record-keepers and to anyone mentioned in the records. Second, the record-keeper and the records in question must be subpoenaed so that both are available to the court when the application is considered.

    Record-keepers do have the right to object to producing the files and to copy the records before taking them to court because, following the O'Connor and Beharriell decisions, both record-keeper and patient-complainant have "standing" -- the legal right to appear before the court and object to producing the records.

    However, doctors, hospitals, sexual-assault centres and other third parties must be ready to move very quickly if they wish to object, because they will receive little time to respond to the application. It is probably advisable to arrange for legal representation as soon as it is clear that a patient is going to be involved in a criminal case of this nature. Once a subpoena has been received specifying records sought by the accused, the doctor or other record-keeper is legally obliged to take the records to court. Copies should be made: the records will likely be kept by the court until the case is finished, and this can take years.

    Another question is whether therapeutic records are likely to be sought. Although there was a split decision as to therapeutic records, the majority concluded that "the sheer number of cases in which such evidence has been produced supports the potential relevance of therapeutic records." In the dissenting opinion, judges argued that when the defence applies to see private medical records the court should consider whether any other reasonable and less invasive alternatives for testing the witness's competence are available.

    Physicians have asked if there is any recourse now that the Supreme Court has altered the traditions of patient confidentiality. Kathleen Parfitt noted that "as a psychiatrist, I am legally required by my college to keep records, but guidelines as to the detail and extent of record-keeping leave a lot to my judgement. Yet these court interventions affect my practice and have profound implications for many of my patients. Indeed, when I now tell people that confidentiality cannot be relied upon if they are seeking some justice from the courts, some just go away.

    "I'm a doctor, but I'm also a citizen, and I question how I can help the government understand just how harmful these recent decisions are to the practice of medicine."

    A solution may be developing through the federal justice minister, who is considering possible amendments to the Criminal Code to lessen the impact of the 1995 court rulings. Professor Marilyn MacCrimmon of British Columbia noted that in its 1991 Seaboyer decision, the Supreme Court struck down some legislation protecting complainant privacy concerning past sexual history, and Parliament countered by enacting new legislation whose preamble said: "Evidence of the complainant's sexual history is rarely relevant."

    A similar process is under way in response to the O'Connor and Beharriell decisions. Justice Minister Allan Rock is seeking submissions on possible legislative amendments affecting production and disclosure of patient records. Physicians wishing to make their views known can write: Allan Rock, Minister of Justice, Parliament Hill, Ottawa, ON K1A 0A6 (no postage required); (fax) 613 941-4122.

    The author thanks Susan Bazilli, legal director of the Metro Action Committee on Violence Against Women and Children, for her assistance.
    | CMAJ June 1, 1996 (vol 154, no 11)  /  JAMC le 1er juin 1996 (vol 154, no 11) |