An article for physicians by physicians
Originally published December 2001 / Revised July 2008
Considerations in responding to patients' requests for support in acquiring firearms.
Of interest to physicians who fill out forms
Family physicians and psychiatrists in particular may face a dilemma when patients, as part of the application process to possess firearms, ask for a letter assessing their potential for causing harm.
Causes for concern
Thoughtful and prudent physicians should think carefully about providing such a letter. For example:
Do physicians have a duty to respond to such requests?
Is it possible for patients to claim damages or complain against physicians for not providing such a letter?
Do physicians have liability if patients, having obtained a licence on the basis of such a letter, subsequently harm another person with the licensed firearm? Could physicians be liable to patients or to individuals (or relatives of individuals) harmed by patients?
The CMPA recognizes that the current lack of clarity in the federal Firearms Act about the obligation to provide such information may place some physicians in an awkward position.
For example, the Act does not specifically require physicians to provide an assessment of patients' potential for causing harm. An argument can be made, however, that physicians should not refuse to complete medical forms requested by patients unless there is reasonable cause to do so. In fact, some regulatory authorities (Colleges) may deem such a refusal of a patient's request without reasonable cause to be professional misconduct in certain circumstances.
An argument could also be made that physicians should respond to such patient requests in order to assist the chief firearms officers (who are designated by the province /territory) in discharging their responsibility.
What the law says
Subsection 5(2) of the Act states that in determining whether a person is eligible to hold a licence, a chief firearms officer must consider whether the person, within the past five years:
(a) has been convicted or discharged under section 730 of the Criminal Code of [certain listed offences];
(b) has been treated for a mental illness?that was associated with violence or threatened or attempted violence on the part of the person against any person; or
(c) has a history of behaviour that includes violence or threatened or attempted violence on the part of the person against the person.
Section 55 of the Act goes on to specify that the chief firearms officer may require an applicant (i.e., the patient) to submit information "as may reasonably be regarded as relevant for the purpose of determining whether the applicant is eligible to hold the license or authorization." Subsection 55(2) provides the chief firearms officer with broad investigatory powers in making that determination:
"Without restricting the scope of the inquiries that may be made with respect to an application for a licence, a chief firearms officer may conduct an investigation of the applicant, which may consist of interviews with? whomever in the opinion of the chief firearms officer may provide information pertaining to whether the applicant is eligible under section 5 to hold a license."
The question then becomes whether physicians are required to respond to such requests. The legislation is not clear in that regard. However, section 106 of the Act makes it an offence to knowingly fail to disclose any information that is relevant to the application for a licence. There is currently no reported case law on this issue. As mentioned above, some Colleges provide that a physician refusing to respond to a patient's request to complete a form without reasonable justification could be committing an act of professional misconduct.
Physicians should refer to their provincial or territorial regulatory authority (College) for any guidelines or policies concerning the completion of such third-party reports.
What should physicians do?
If physicians respond to such a request, it could be argued they are only required to provide information relevant to the eligibility criteria in subsection 5(2) as described above. To protect against a possible allegation of breach of patient confidentiality, physicians should obtain written authorization from patients prior to releasing this information and limit such disclosure to only relevant information.
The bottom line
There is no express duty under the Firearms Act to provide the chief firearms officer with a prediction of patients' potential for causing harm if in possession of a firearm.
However, physicians may be under a professional obligation to reasonably respond to a patient's request to complete a form or to provide information to the chief firearms officer concerning a patients' history of violent behaviour. Physicians should obtain written authorization from patients prior to releasing this information.
Physicians should be careful not to simply provide a copy of the patients' records, but rather provide only factual information that is directly relevant to the eligibility criteria in section 5.
It would be useful to consult any relevant College guidelines or policies regarding third-party reports.
Members with questions about how to respond to such a request should contact the CMPA for advice.