Originally published March 2011 / Revised October 2016
Physicians interact with the police in a variety of clinical settings involving investigations and inquiries relating not only to patients, but perhaps directed toward the physician personally.
Confidentiality and privacy
While it may be natural to want to cooperate with the police, generally physicians should refrain from disclosing patient information to the police or any other third party unless there is patient consent or the disclosure is required by law.
The physician's duty of confidentiality is both an ethical and a legal obligation. As described in the Canadian Medical Association's Code of Ethics, to promote a relationship of confidence and trust, physicians have traditionally protected their patients' personal health information.
The legal duty to keep patient health information confidential originates from this fiduciary (trust) relationship between doctors and patients. Privacy legislation, which applies in all provinces and territories, reinforces this duty and requires an individual's consent before his or her personal information can be collected, used, or disclosed. Some provinces also have health-specific privacy legislation.
There are a few exceptions when the disclosure of patient information is permitted without express patient consent. These exceptions can include when the physician receives requests from the police in the course of certain investigations or when the physician receives a subpoena, court order, or search warrant. Physicians may also disclose patient information without consent when the law requires the disclosure, which includes a mandatory duty to report, such as when a child is in need of protection or when there are other important interests at stake that justify breaching patient confidentiality. For example, the Supreme Court in Smith v. Jones recognized that a physician may be authorized to disclose patient information to the police in circumstances when he or she has reason to believe there is an imminent risk of serious bodily harm or death to an identifiable person or group.
Search warrants and subpoenas
A search warrant grants the police broad legal authority to search for and seize evidence.
Before disclosing or permitting the police access to any patient information, physicians should ask to inspect the warrant. When faced with a valid search warrant that specifies the seizure of a patient's records or information, a physician must release the information to the police. Only the patient information listed in the warrant should be disclosed.
The police may contact the physician before a search warrant is issued. Physicians should be aware that this may be an attempt to gather the necessary grounds for obtaining the search warrant and that patient information should not be disclosed.
Physicians should also be mindful of the distinction between a search warrant and a subpoena. A subpoena alone is not sufficient reason for a physician to breach patient confidentiality. In most jurisdictions, a subpoena or summons is only a command for the physician to attend a criminal or other court proceeding. The subpoena may direct the physician to bring "any documents or materials which are relevant to the action," but it typically does not require the physician to speak to anyone, even the police, about the contents of those records or any aspect of a patient's health before being ordered to do so by the presiding judicial body (e.g. judge) in the hearing room. Unless the patient has given the physician specific authority to disclose the records in advance, the physician should take them in a sealed envelope to the location and at the time indicated in the subpoena. They should be released only when the court or tribunal so orders.
Police investigations of patients
Treating a patient who is under arrest or the subject of a police investigation can be challenging.
The Supreme Court of Canada has confirmed that confidentiality obligations apply even when a patient is under arrest or otherwise being detained. Without this protection, these individuals may be deterred from seeking necessary medical care if they perceive healthcare providers as agents of the police.
Unless required by law (including a legislative provision, search warrant, or other court order) or given consent by the patient, a physician cannot be required to perform an invasive service on a patient (such as taking blood from a suspected impaired driver for the purpose of confirming his or her blood alcohol content) or to provide any other information or evidence about a patient.
Physicians may find themselves pressured by police to provide information about a patient who is deceased, unconscious, or otherwise impaired beyond having the capacity to consent. In any of these circumstances, a physician's duty to maintain the confidentiality of a patient's personal health information persists.
Physicians may also receive a request from the police for information about a patient who is suspected of criminal activity, such as prescription fraud (double doctoring) or dangerous behaviour toward others. Physicians do not have a duty to provide information to the police concerning cases of suspected prescription fraud. As a result, physicians may respond to questions about the patient's health only if presented with valid legal authority compelling disclosure (e.g. legislative provision, search warrant, or court order) or in the rare event that the police have the patient's consent. That said, some police questions may not require that the physician disclose the patient's personal health information. For example, a physician can verify whether a specific prescription in the possession of the police is authentic (i.e. whether the handwriting and the signature are those of the physician).
In some jurisdictions, privacy legislation may require that physicians disclose personal health information when police are conducting a criminal investigation. In other jurisdictions, privacy legislation may give physicians discretion on whether or not to disclose patient information without consent. When a physician has discretion, he or she should make a decision bearing in mind the duty of confidentiality and the facts of the case. Any disclosure made to the police should be documented by the physician in the patient's medical record. The documentation should include the information the physician relied on to make the disclosure.
Duty to report to the police
In some common situations, reports must be made directly to the police.
Hospitals and healthcare facilities in some provinces (currently British Columbia, Alberta, Saskatchewan, Manitoba, Ontario, Québec, Nova Scotia, Newfoundland and Labrador, and Northwest Territories) must report gunshot wounds to the police. Although the reporting obligation in British Columbia, Alberta, Saskatchewan, Manitoba, Newfoundland and Labrador, and Northwest Territories also includes stab wounds, the legislation in all these provinces is similar. The obligation to report typically falls to the institution or facility, not the individual physician. In some jurisdictions, the obligation placed on facilities to report could also include physicians' private medical offices and walk-in clinics.
There may be other circumstances where physicians are required by law to report suspected criminal activity to authorities, and in some provinces those authorities include the police. The most common is when a person (including a physician) has reasonable grounds to believe a child is being abused. Generally speaking, under the legislation anyone who believes a child is in need of protection must report it promptly to a designated person or agency. In light of the potentially serious consequences of reporting and not reporting, physicians should carefully consider the obligations in their province and territory. In addition, some provinces and territories have enacted a similar mandatory reporting obligation for elder abuse.
All provinces and territories have legislation that requires anyone (including physicians) to report certain deaths, including those that the person has reason to believe are violent, suspicious, or unexplained. In some jurisdictions, physicians medically assisting a patient to die are required to report certain information about the patient’s death to the coroner or another authority. The nature and circumstances of the deaths that must be reported varies from jurisdiction to jurisdiction. While most legislation requires the report to be made to the chief coroner, several provinces allow the report to be made to the police. The police may attempt to solicit additional information from a physician in accordance with his or her duty to report. Physicians in these circumstances must carefully consider whether they are under a duty to report and, if so, what information must be provided to the police.
Physicians under investigation
In the course of their medical practices, physicians may become the subject of police investigations. CMPA experience has included situations such as allegations of sexual assault, assisting in a patient's suicide, narcotic fraud, or billing issues.
In these situations, any statements or documents provided by the physician to the police can be tendered as evidence in subsequent proceedings. When receiving a request from the police, physicians should decline to make any statement or respond to any questions until they have received advice from the CMPA or appropriate legal advice.
Physicians may be tempted or intimidated into providing information or a statement in the hopes of averting any further proceedings. In fact, a spontaneous voluntary statement or disclosure of information may have the opposite effect and could seriously compromise a physician's future defence.
As well, in these situations physicians are still subject to their obligation to maintain patient confidentiality.
More detailed information available
The CMPA has articles with more detailed information on subpoenas ("Subpoenas — What are a physician's responsibilities?"), and on assisting police with investigations of prescription fraud and double doctoring ("Suspect unlawful activity with prescriptions or medications? Here’s how to respond").
Contact the CMPA
CMPA members uncertain about their obligations to provide information to the police are encouraged to contact the Association.