Descriptive Essay
CONFIDENTIALITY AND THE MENTAL HEALTH PROFESSIONAL*
DAVID N.
Mental health professionals are increasingly called upon to perform diverse tasks, to analyse the suitability of individuals for parenthood, to determine their dangerousness, to establish the terms of reference for criminal guilt, to warn possible victims of the threat intended or implied that may bring harm to them, and to enforce the rules of safety and hygiene that the society requires for its self-policing in advanced urban cultures. Institutions such as prisons and welfare agencies, that suffer from the external pressures of budgetary cutbacks and external monitoring, search for information to assess their curative capacities. Mental health workers thus are forced to analyse the specific patient in relationship to others, with the implication for the future that society might wish to know the prognosis for cure before investing in long-term treatment on behalf of a citizen. Mental health professionals are pushed from both ends. On the one hand there is a tendency to preserve, at any cost, the secrecy of the therapeutic dynamic which is assumed to be in the best interests of the patient, while on the other there is the desire on the part of professional therapists to respond to patients' needs in a broader social context. Furthermore, there are instances where psychiatrists cannot clearly "Modified version of Academic Lecture presented at the University of Toronto, Department of Psychiatry, Toronto, Ont., April 1977. 'Professor of Law, Osgoode Law School, Toronto; Visiting Professor of Psychiatry, University of Toronto and Forensic Consultant, Clarke Institute of Psychiatry, Toronto, Ont. Can. Psychiatr. Assoc. J. Vol. 22 (1977)
WEISSTUB,
M.A., J.D. l
isolate whose interests need most protecting and therefore are ambivalent about how to proceed. Codes of ethics seem inadequate to deal with the terms and circumstances of the dilemmas when they occur. No one seriously doubts in a social democracy that privacy is a highly valued commodity, but the issue of whose privacy should be protected and for which purpose is in fact an area of deep controversy, not only among mental health professionals and participants in the judicial system, but in the society at large. In the legal literature there is discomfort about what.. to do with respect to according privacy a distinctive category in law. Although there is right to privacy per se in the American constitutional process, which has been translated into a common law right, in many different jurisdictions in the Commonwealth, including Canada, there is no nominate right to privacy. Common law judges have been cautious in approaching privacy, for, in the light of the American experience, it may be seen that privacy evolved as a tort without a clear definition of its meaning. Insofar as privacy is intrinsically bound to a continuum of sentiments and perceptions about its moral and aesthetic ingredients and reflects a synthesis of cultural and individual conditioning, judges lack the certainty of being able to express privacy as a concept which can be applied coherently and predictably. The common law's concern with privacy, while resisting an expansive definition of the concept, has nonetheless been felt in the application and interpretation of more
319
320
CANADIAN PSYCHIATRIC ASSOCIATION JOURNAL
Vol. 22, No.6
narrowly defined categories. It has recog- courts will reconcile these competing duties nized, unofficially, that privacy represents satisfactorily? the genus around which arguments about The ad hoc method of the common law is confidences are made, and has undertaken said to encourage judicial arbitrariness in in its view of specific relationships, such as administering the grey area between disclothe one that exists between physicians and sure in the public interest and protection of patients, to treat breach of confidence as a the patient's confidence. The courts have species of violation of trust that deserves not put forward a set of guidelines around protection in law. The judiciary thereby has which all the cases that have been adjudibeen encouraged to take a stand on certain cated may be grouped, nor have they types of information which are acknow- provided a checklist against which mental ledged to be detrimental to the patient's health professionals might plan their inforinterests. mation transactions. The common law has There are many places where in the only been able to measure its responses out-of-court practices of mental health according to the set of moral criteria, professionals the question of which infor- which, when sufficiently strong, make it mation to transact, with whom, in which necessary for the law to apply a remedy. circumstances, and with what utilization of Matters, which in the public view are de resources, (mechanical, professional, or minimus, cannot be expected to invite a institutional), becomes an issue of pruden- judicial award. Therefore it can be argued tial judgment. Insurance companies, private that common moral sense has been the investigators, employers, researchers, au- directive of legal prescription. thors, and film-makers routinely make Where the activity of a psychiatrist has requests to professionals about the treat- not been malicious or "intentional", where ment that patients 'have received. There it cannot be proven that there has been any have been instances of the breach, ulterior gain, either monetary or psychologdocumented by courts of law, which have ical, the common law has generally been argued that the break-down of trust can be careful to accord respect to mental health met with legal remedies from the standpoint professionals. However, liability has someof the relationship defined as a contractual times been attached to even innocent and one; the malpractice response which views well-intentioned actions. the duty owed to the patient as one No sure set of rules can be contrived stemming from standards known to the which will cover the host of unique facts profession through its custom and self- which may be part of a specific case. The regulating ordinances; the analogy brought principle may be stated, nonetheless, that from the corporate sphere of the fiduciary the mental health professional stands in a trustt; breach of confidence as a. separate relationship of trust which imposes a duty to heading of tort (where ethical codes of be scrupulously cautious to avoid unjustifiprofessional discipline might serve as giv- able breaches of confidence. It is expected, ing rise to a new duty), or an appeal to for example, that measures be taken to equity. This range of legal possibilities has assure that waivers of the duty of conficaused fear among mental health profes- dence be very carefully dealt with, and that, sionals, especially since there are cir- where patients' cases are used for the cumstances where positive duties of disclo- advancement of the public good, identities sure have been imposed on them by statute, be disguised. It is not sufficient that a pro common law decisions and professional forma consent be obtained from a patient in regulations. How can they be sure that the the midst of therapy, where' 'transference" t" A person is said to stand in a fiduciary relationship to to the professional can interfere with the genuineness of consent. Professionals are another when he has rights and powers which he is bound to exercise for the benefit of that other; hence he is not allowed duty-bound to protect the patient's interests, to derive any profit or advantage from the relation between even in instances where he might display them, except with the knowledge and consent of the other person." (Jowitt, Dictonary ofEnglish Law) exhibitionist tendencies. Although on some
October, 1977
CONFIDENTIALITY
occasions co-workers should be given special access to a patient's records or to sharing therapeutic experiences with him in an educational forum, it is still imperative that the professional advance knowledge with deference to minimizing exposure of the patient's vulnerabilities. Mental health professionals should take great care to document any release of information which is forwarded to a third party. Where there is no clear-cut legal duty to disclose there should be a refusal to release evidence gathered in the fiduciary relationship. Consent must be received from the patient directly, and in the event that the patient is incapable of giving informed consent, such release should be obtained from the legal guardian. The guiding principle must remain that the professional's ultimate responsibility lies with the relationship, and that any record or information derived from the therapy is the property of that trust. Where the relationship involves only an imperfect or conditional trust, for example, where the patient is being assessed rather than treated, or is a participant in a research experiment, a party to a group therapeutic experience, has been explicitly referred for reason of obtaining evidence for a judicial procedure, or is present at the request of an employer or for security clearance, it is essential that the therapist immediately acknowledge the imperfection of the trust and inform the patient of the parameters of confidentiality involved. The burden placed upon mental health professionals reaches sharpest focus with the prospect of advancing a confidentiality shield in the courtroom. Despite the fact that the common law has provided precedents on the course of action to be followed in out-of-court disclosures, it has historically avoided affording a strict "privilege" before judge and jury. It is assumed that such a move can only be made through a statutory enactment, and although in the Province of Quebec there exists a qualified privilege, the statutory laws, both federal and provincial, are silent in all the other common law provinces.
321
The fate of privileged communications between physician and patient was established some 200 years ago in Lord Mansfield's proclamation in the Duchess of Kingston's trial, where he stated that what would be regarded as an indiscretion in a physician's sharing of information would never be imputed in the event that such information was given in a court of justice. This position has been reaffirmed in subsequent decisions to the point that it is well established that the common law recognizes no inviolable communications between physician and patient, so far as courtroom disclosures are concerned. In order to guarantee the fair administration of justice, any witness may be compelled to testify as to confidential information except a lawyer as to his client's confidences, and, in some situations, a spouse with respect to marital communications. In his classical treatise on the law of evidence Wigmore laid down a set of criteria which, although, in his opinion, demonstrative of sufficient reasons for denying a therapeutic privilege to a physician, have, in discussions on privilege, been employed for its justification. His first three points, that the communication should originate in confidence, that the inviolability of that confidence be necessary to achieve the purpose of the professional involvement, and that the relation be one that should be encouraged, would appear to be applicable to most mental health professionals. The fourth criterion set forth by Wigmore concentrates on the balancing difficulty that is at the crux of the privilege doctrine. That is, does the injury likely to result from the apprehension about disclosure or apprehension of disclosure outweigh the benefit to justice if the testimony is obtained? On this question the opinions of lawyers and mental health professionals can be expected to differ. Justice is understandably the concern of lawyers and judges, but, to the mental health professional, it can represent a frustration and a detriment to the best interest of the patient. Indeed, there are many cases where psychiatry regards itself as an innocent victim of judicial injustice,
322
CANADIAN PSYCHIATRIC ASSOCIATION JOURNAL
when, for example, the employment of treatment techniques is thwarted by a hostile third party who may be associated with the patient's unfortunate condition. Where no privilege is available the psychiatrist should instruct the patient at the outset of therapy that his knowledge and opinion could become fair game in open court in the event of litigation. In spite of this, the majority of psychiatrists in Canada probably continue to refrain from discussing legal niceties in the introductory stages of treatment, for to do so would be to undermine the essential intimacy required for the patient's benefit. They face a difficult dilemma: on the one hand it is unwise to permit the possibility of future litigation to prejudice their therapeutic effectiveness; but, on the other, _if they should be required to testify later about the confidences of an unwarned patient, it could wreak havoc on the relationship at the very moment when, due to the intensity of the courtroom experience, the patient has the most to lose qua his mental health from a breach of trust by his therapist. Mental health professionals are wont to view this state of affairs as a zero sum game. Irksome to the mental health professional, in addition, are situations where a legally "proper" reconstruction of facts may look like a lawyer's phantasy to him, having little relevance to the patient's psychiatric history framed from a therapeutic perspective. The psychiatrist's approach to the patient is to elaborate on repressed or unconscious motivations and perceptions which bear little resemblance to his actual behaviour patterns. The legal system repeatedly requests facts not opinion, but, to the mental health professional, this distinction may appear spurious, insofar as it may be only in the realm of interpretation that facts may be joined to present the patient in a sympathetic light. Once again the psychiatrist may be seen to be at the mercy of a predetermined set of norms and references which have little in common with his craft and the parameters of his acknowledged professional obligation. Forensic specialists are generally at an advantage in dealing with the law, because
Vol. 22, NO.6
they are trained to gather information in the process of making a diagnosis or assessment tailored to the needs of the court, and therefore are adept at the art of responding to legal questions in terms which are attractive to lawyers and judges. This reality raises some deeper questions about the accumulation of data by psychiatry and its exposure in the courtroom. There are subtle dangers which relate both to oral testimony and the keeping of psychiatric records. Although it might be appealing, from the point of view of courtroom lawyers, that psychiatrists be educated in the gamesmanship of the legal extraction of psychiatric evidence, psychiatrists should be continually on guard to say as little as they feel professionally comfortable with and as much as properly serves the trust invested in them by the patient in question. The extremities of being a record-keeping expert highly suitable for lawyerly chores and the position of absolute denial of the court's right to call evidence should both be discouraged. In addition, the psychiatrist should reflect on his particular _investment as a status-member of a professional body and his emotional connection to the patient and the surrounding facts of the case. It is not always immediately clear what reactions in the psychiatrist might be stimulated in the face of cross-examination and an attack on professional integrity. Here the psychiatrist, indeed, should have an advantage, in that his training enhances the prospects of being aware of the psychodynamics of the courtroom, including his own participation in the drama. Finally, psychiatrists may anticipate potential courtroom experiences by taking care to edit highly interpretative or very detailed notes in their records, keeping only that information which clearly documents the treatment in progress for therapeutic purposes. Where details are extensive, special categories within the documents, which earmark the controversiality of the opinions, will serve to register with the court the strict reluctance of the practitioner to have his evidence misinterpreted. It is hoped that the recourse to keeping a double set of records, the destruction of documents, or
october, 1977
CONFIDENTIALITY
the decision to keep no records at all will be seen as unwarranted in the Canadian context.
Summary Although the Canadian common law provides neither a courtroom privilege to psychiatrists nor a general right of privacy, it is argued that the traditional approaches to the issue are defensible. The confidential relationships between the therapist and his patient are so diversethat simple or general solutions are to be discouraged. The fiduciary relationship is sufficiently well defined that where serious breaches of
323
confidence occur the courts may be expected to afford a just remedy. Resume La loi traditionnelle canadienne ne reconnait aux psychiatres, ni privileges en cours, ni droit general au secret professionnel. Cependant, on soutient que les approches traditionnelles a cette question sont defendables. Les relations confidentielles entre Ie therapeute et son malade sont si variees qu'on ne doit pas encourager des solutions simples ou generales. La relation du fiduciaire est assez bien definie pour qu'on s'attende a ce que les cours trouvent une solution equitable, lorsqu'il y a de serieux bris du secret professionnel.
CONFIDENTIALITY AND THE MENTAL HEALTH PROFESSIONAL*
DAVID N.
Mental health professionals are increasingly called upon to perform diverse tasks, to analyse the suitability of individuals for parenthood, to determine their dangerousness, to establish the terms of reference for criminal guilt, to warn possible victims of the threat intended or implied that may bring harm to them, and to enforce the rules of safety and hygiene that the society requires for its self-policing in advanced urban cultures. Institutions such as prisons and welfare agencies, that suffer from the external pressures of budgetary cutbacks and external monitoring, search for information to assess their curative capacities. Mental health workers thus are forced to analyse the specific patient in relationship to others, with the implication for the future that society might wish to know the prognosis for cure before investing in long-term treatment on behalf of a citizen. Mental health professionals are pushed from both ends. On the one hand there is a tendency to preserve, at any cost, the secrecy of the therapeutic dynamic which is assumed to be in the best interests of the patient, while on the other there is the desire on the part of professional therapists to respond to patients' needs in a broader social context. Furthermore, there are instances where psychiatrists cannot clearly "Modified version of Academic Lecture presented at the University of Toronto, Department of Psychiatry, Toronto, Ont., April 1977. 'Professor of Law, Osgoode Law School, Toronto; Visiting Professor of Psychiatry, University of Toronto and Forensic Consultant, Clarke Institute of Psychiatry, Toronto, Ont. Can. Psychiatr. Assoc. J. Vol. 22 (1977)
WEISSTUB,
M.A., J.D. l
isolate whose interests need most protecting and therefore are ambivalent about how to proceed. Codes of ethics seem inadequate to deal with the terms and circumstances of the dilemmas when they occur. No one seriously doubts in a social democracy that privacy is a highly valued commodity, but the issue of whose privacy should be protected and for which purpose is in fact an area of deep controversy, not only among mental health professionals and participants in the judicial system, but in the society at large. In the legal literature there is discomfort about what.. to do with respect to according privacy a distinctive category in law. Although there is right to privacy per se in the American constitutional process, which has been translated into a common law right, in many different jurisdictions in the Commonwealth, including Canada, there is no nominate right to privacy. Common law judges have been cautious in approaching privacy, for, in the light of the American experience, it may be seen that privacy evolved as a tort without a clear definition of its meaning. Insofar as privacy is intrinsically bound to a continuum of sentiments and perceptions about its moral and aesthetic ingredients and reflects a synthesis of cultural and individual conditioning, judges lack the certainty of being able to express privacy as a concept which can be applied coherently and predictably. The common law's concern with privacy, while resisting an expansive definition of the concept, has nonetheless been felt in the application and interpretation of more
319
320
CANADIAN PSYCHIATRIC ASSOCIATION JOURNAL
Vol. 22, No.6
narrowly defined categories. It has recog- courts will reconcile these competing duties nized, unofficially, that privacy represents satisfactorily? the genus around which arguments about The ad hoc method of the common law is confidences are made, and has undertaken said to encourage judicial arbitrariness in in its view of specific relationships, such as administering the grey area between disclothe one that exists between physicians and sure in the public interest and protection of patients, to treat breach of confidence as a the patient's confidence. The courts have species of violation of trust that deserves not put forward a set of guidelines around protection in law. The judiciary thereby has which all the cases that have been adjudibeen encouraged to take a stand on certain cated may be grouped, nor have they types of information which are acknow- provided a checklist against which mental ledged to be detrimental to the patient's health professionals might plan their inforinterests. mation transactions. The common law has There are many places where in the only been able to measure its responses out-of-court practices of mental health according to the set of moral criteria, professionals the question of which infor- which, when sufficiently strong, make it mation to transact, with whom, in which necessary for the law to apply a remedy. circumstances, and with what utilization of Matters, which in the public view are de resources, (mechanical, professional, or minimus, cannot be expected to invite a institutional), becomes an issue of pruden- judicial award. Therefore it can be argued tial judgment. Insurance companies, private that common moral sense has been the investigators, employers, researchers, au- directive of legal prescription. thors, and film-makers routinely make Where the activity of a psychiatrist has requests to professionals about the treat- not been malicious or "intentional", where ment that patients 'have received. There it cannot be proven that there has been any have been instances of the breach, ulterior gain, either monetary or psychologdocumented by courts of law, which have ical, the common law has generally been argued that the break-down of trust can be careful to accord respect to mental health met with legal remedies from the standpoint professionals. However, liability has someof the relationship defined as a contractual times been attached to even innocent and one; the malpractice response which views well-intentioned actions. the duty owed to the patient as one No sure set of rules can be contrived stemming from standards known to the which will cover the host of unique facts profession through its custom and self- which may be part of a specific case. The regulating ordinances; the analogy brought principle may be stated, nonetheless, that from the corporate sphere of the fiduciary the mental health professional stands in a trustt; breach of confidence as a. separate relationship of trust which imposes a duty to heading of tort (where ethical codes of be scrupulously cautious to avoid unjustifiprofessional discipline might serve as giv- able breaches of confidence. It is expected, ing rise to a new duty), or an appeal to for example, that measures be taken to equity. This range of legal possibilities has assure that waivers of the duty of conficaused fear among mental health profes- dence be very carefully dealt with, and that, sionals, especially since there are cir- where patients' cases are used for the cumstances where positive duties of disclo- advancement of the public good, identities sure have been imposed on them by statute, be disguised. It is not sufficient that a pro common law decisions and professional forma consent be obtained from a patient in regulations. How can they be sure that the the midst of therapy, where' 'transference" t" A person is said to stand in a fiduciary relationship to to the professional can interfere with the genuineness of consent. Professionals are another when he has rights and powers which he is bound to exercise for the benefit of that other; hence he is not allowed duty-bound to protect the patient's interests, to derive any profit or advantage from the relation between even in instances where he might display them, except with the knowledge and consent of the other person." (Jowitt, Dictonary ofEnglish Law) exhibitionist tendencies. Although on some
October, 1977
CONFIDENTIALITY
occasions co-workers should be given special access to a patient's records or to sharing therapeutic experiences with him in an educational forum, it is still imperative that the professional advance knowledge with deference to minimizing exposure of the patient's vulnerabilities. Mental health professionals should take great care to document any release of information which is forwarded to a third party. Where there is no clear-cut legal duty to disclose there should be a refusal to release evidence gathered in the fiduciary relationship. Consent must be received from the patient directly, and in the event that the patient is incapable of giving informed consent, such release should be obtained from the legal guardian. The guiding principle must remain that the professional's ultimate responsibility lies with the relationship, and that any record or information derived from the therapy is the property of that trust. Where the relationship involves only an imperfect or conditional trust, for example, where the patient is being assessed rather than treated, or is a participant in a research experiment, a party to a group therapeutic experience, has been explicitly referred for reason of obtaining evidence for a judicial procedure, or is present at the request of an employer or for security clearance, it is essential that the therapist immediately acknowledge the imperfection of the trust and inform the patient of the parameters of confidentiality involved. The burden placed upon mental health professionals reaches sharpest focus with the prospect of advancing a confidentiality shield in the courtroom. Despite the fact that the common law has provided precedents on the course of action to be followed in out-of-court disclosures, it has historically avoided affording a strict "privilege" before judge and jury. It is assumed that such a move can only be made through a statutory enactment, and although in the Province of Quebec there exists a qualified privilege, the statutory laws, both federal and provincial, are silent in all the other common law provinces.
321
The fate of privileged communications between physician and patient was established some 200 years ago in Lord Mansfield's proclamation in the Duchess of Kingston's trial, where he stated that what would be regarded as an indiscretion in a physician's sharing of information would never be imputed in the event that such information was given in a court of justice. This position has been reaffirmed in subsequent decisions to the point that it is well established that the common law recognizes no inviolable communications between physician and patient, so far as courtroom disclosures are concerned. In order to guarantee the fair administration of justice, any witness may be compelled to testify as to confidential information except a lawyer as to his client's confidences, and, in some situations, a spouse with respect to marital communications. In his classical treatise on the law of evidence Wigmore laid down a set of criteria which, although, in his opinion, demonstrative of sufficient reasons for denying a therapeutic privilege to a physician, have, in discussions on privilege, been employed for its justification. His first three points, that the communication should originate in confidence, that the inviolability of that confidence be necessary to achieve the purpose of the professional involvement, and that the relation be one that should be encouraged, would appear to be applicable to most mental health professionals. The fourth criterion set forth by Wigmore concentrates on the balancing difficulty that is at the crux of the privilege doctrine. That is, does the injury likely to result from the apprehension about disclosure or apprehension of disclosure outweigh the benefit to justice if the testimony is obtained? On this question the opinions of lawyers and mental health professionals can be expected to differ. Justice is understandably the concern of lawyers and judges, but, to the mental health professional, it can represent a frustration and a detriment to the best interest of the patient. Indeed, there are many cases where psychiatry regards itself as an innocent victim of judicial injustice,
322
CANADIAN PSYCHIATRIC ASSOCIATION JOURNAL
when, for example, the employment of treatment techniques is thwarted by a hostile third party who may be associated with the patient's unfortunate condition. Where no privilege is available the psychiatrist should instruct the patient at the outset of therapy that his knowledge and opinion could become fair game in open court in the event of litigation. In spite of this, the majority of psychiatrists in Canada probably continue to refrain from discussing legal niceties in the introductory stages of treatment, for to do so would be to undermine the essential intimacy required for the patient's benefit. They face a difficult dilemma: on the one hand it is unwise to permit the possibility of future litigation to prejudice their therapeutic effectiveness; but, on the other, _if they should be required to testify later about the confidences of an unwarned patient, it could wreak havoc on the relationship at the very moment when, due to the intensity of the courtroom experience, the patient has the most to lose qua his mental health from a breach of trust by his therapist. Mental health professionals are wont to view this state of affairs as a zero sum game. Irksome to the mental health professional, in addition, are situations where a legally "proper" reconstruction of facts may look like a lawyer's phantasy to him, having little relevance to the patient's psychiatric history framed from a therapeutic perspective. The psychiatrist's approach to the patient is to elaborate on repressed or unconscious motivations and perceptions which bear little resemblance to his actual behaviour patterns. The legal system repeatedly requests facts not opinion, but, to the mental health professional, this distinction may appear spurious, insofar as it may be only in the realm of interpretation that facts may be joined to present the patient in a sympathetic light. Once again the psychiatrist may be seen to be at the mercy of a predetermined set of norms and references which have little in common with his craft and the parameters of his acknowledged professional obligation. Forensic specialists are generally at an advantage in dealing with the law, because
Vol. 22, NO.6
they are trained to gather information in the process of making a diagnosis or assessment tailored to the needs of the court, and therefore are adept at the art of responding to legal questions in terms which are attractive to lawyers and judges. This reality raises some deeper questions about the accumulation of data by psychiatry and its exposure in the courtroom. There are subtle dangers which relate both to oral testimony and the keeping of psychiatric records. Although it might be appealing, from the point of view of courtroom lawyers, that psychiatrists be educated in the gamesmanship of the legal extraction of psychiatric evidence, psychiatrists should be continually on guard to say as little as they feel professionally comfortable with and as much as properly serves the trust invested in them by the patient in question. The extremities of being a record-keeping expert highly suitable for lawyerly chores and the position of absolute denial of the court's right to call evidence should both be discouraged. In addition, the psychiatrist should reflect on his particular _investment as a status-member of a professional body and his emotional connection to the patient and the surrounding facts of the case. It is not always immediately clear what reactions in the psychiatrist might be stimulated in the face of cross-examination and an attack on professional integrity. Here the psychiatrist, indeed, should have an advantage, in that his training enhances the prospects of being aware of the psychodynamics of the courtroom, including his own participation in the drama. Finally, psychiatrists may anticipate potential courtroom experiences by taking care to edit highly interpretative or very detailed notes in their records, keeping only that information which clearly documents the treatment in progress for therapeutic purposes. Where details are extensive, special categories within the documents, which earmark the controversiality of the opinions, will serve to register with the court the strict reluctance of the practitioner to have his evidence misinterpreted. It is hoped that the recourse to keeping a double set of records, the destruction of documents, or
october, 1977
CONFIDENTIALITY
the decision to keep no records at all will be seen as unwarranted in the Canadian context.
Summary Although the Canadian common law provides neither a courtroom privilege to psychiatrists nor a general right of privacy, it is argued that the traditional approaches to the issue are defensible. The confidential relationships between the therapist and his patient are so diversethat simple or general solutions are to be discouraged. The fiduciary relationship is sufficiently well defined that where serious breaches of
323
confidence occur the courts may be expected to afford a just remedy. Resume La loi traditionnelle canadienne ne reconnait aux psychiatres, ni privileges en cours, ni droit general au secret professionnel. Cependant, on soutient que les approches traditionnelles a cette question sont defendables. Les relations confidentielles entre Ie therapeute et son malade sont si variees qu'on ne doit pas encourager des solutions simples ou generales. La relation du fiduciaire est assez bien definie pour qu'on s'attende a ce que les cours trouvent une solution equitable, lorsqu'il y a de serieux bris du secret professionnel.
