A physician’s duty to maintain patient confidentiality is at the core of the doctor-patient relationship. It is this requirement of confidentiality that allows patients to share deeply personal information with their physician, with the goal of optimizing health outcomes.
The duty of confidentiality is a professional, ethical and legal obligation. However, there are specific circumstances where physicians are either required, or permitted, to breach their duty of confidentiality, and report events or conditions to the appropriate government or regulatory body. For example, courts have determined that imminent and serious danger to the safety of an identifiable person or group of people can be sufficient justification for the disclosure of confidential patient information.1 This permission to warn is also recognized in applicable privacy legislation in all provinces/territories.
These situations are challenging for physicians, who find themselves conflicted between their duty of confidentiality to patients, and a duty to report or concern for public safety. These situations can result in significant medico-legal risk, and stress for physicians if not appropriately managed. Physicians may struggle with a decision to report a patient, for fear of impacting the doctor-patient relationship and causing the patient emotional distress, or for fear of failing to satisfy the specific conditions of the duty to report.
While it is generally advisable to inform the person who is the subject of the report (or their family, when applicable) that the physician’s has decided to make a report, this may not always be appropriate, depending on the facts and circumstances of the situation. Physicians must consider their own safety as well as the safety of their staff, of the person who is subject of the report, and of their family members as appropriate.
Good practice guidance
A duty to report arises when a statute, regulation, by-law or policy dictates that a physician disclose confidential information. A duty to report can be mandatory, or discretionary. Mandatory reports are considered necessary for the public interest. Discretionary reports, as the name implies, are made at physicians’ discretion in certain circumstances.
Although the circumstances that trigger mandatory and discretionary reporting are relatively uniform across Canada, specific nuances exist between the requirements in individual provinces and territories. Physicians should familiarize themselves with the relevant requirements in their jurisdiction.
The decision whether to make a discretionary report should be based on the particular circumstances of each case, the threshold for reporting, and the physician’s clinical assessment of the risk posed by the patient. Physicians must use their clinical judgment to determine whether a patient’s medical condition or circumstances meet the criteria for reporting.
A mandatory duty to report may arise in many different circumstances, such as the following:
- child in need of protection
- communicable diseases
- elder abuse
- fitness to drive
- gunshot and stab wounds
- drug diversion and prescription pad theft or fraud
- reportable deaths
- workers compensation / workplace health and safety insurance board / commission cases
Physicians may also have a duty to self-report, or report colleagues to their College in particular circumstances. Conditions requiring self-reporting and reporting of colleagues differ between Colleges; physicians should become familiar with their College’s policies and regulations.
Failure to make a mandatory report may result in accusations of professional negligence or misconduct. However, the law generally protects physicians from liability when a report is made in good faith. When making a report, physicians should be careful to disclose only the minimum amount of information required to address the risk of harm, and only under the specified circumstances. When deciding whether a report should be made, physicians should carefully document their rationale for the decision in the patient’s medical record.
Under certain circumstances, physicians may be legally and ethically permitted to disclose confidential information for purposes of warning a third party (e.g. police) to prevent harm (i.e. have permission to warn), based on their professional, ethical, and clinical judgment. For example, privacy legislation may allow physicians to disclose an individual’s personal health information, without consent, to avert an imminent risk of serious bodily harm to an identifiable person or group. In addition, the Canadian Medical Association (CMA)’s Code of Ethics states that a physician may disclose a patient’s personal health information to a third party without consent where “the maintenance of confidentiality would result in a significant risk of substantial harm to others or, in the case of incompetent patients, to the patients themselves.”
Many Colleges have echoed this principle in policies and guidelines. Physicians should familiarize themselves with the relevant rules of their regulatory body.
Physicians should disclose only sufficient information to prevent the harm. It is advisable to document any disclosure you make, along with your reasoning.
In all provinces and territories, physicians generally have an obligation to report when they have reasonable grounds to believe that a child is being abused or is otherwise in need of protection. Physicians should consult their provincial/territorial legislation to determine to whom the report should be made. In most jurisdictions, reports must be made to child protection authorities or the police.
Physicians may also choose to report to the police in circumstances where they have reason to believe there is an imminent risk of serious bodily harm or death to the child. The definition of “child” varies depending on jurisdiction.
In British Columbia,2 New Brunswick,3 Nova Scotia,4 and the Yukon,5 a child is defined as a person under 19 years old. In Alberta,6 Manitoba,7 Quebec,8 and Prince Edward Island,9 a child is defined as a person under 18 years old. In Saskatchewan,10 Ontario,11 Newfoundland and Labrador,12 the Northwest Territories13 and Nunavut,14 a child is defined as a person under 16 years old. Ontario allows for discretionary reporting where the child is 16 or 17 years. Saskatchewan imposes a separate duty to report sexual abuse of children under the age of 18 years.
Physicians should also be mindful of any mandatory reporting obligations in their jurisdiction related to child pornography.
Reporting obligations may also be triggered when a physician learns that a minor patient may be engaged in sexual activity with a person who is considerably older. The Criminal Code of Canada15 defines sexual assault as all sexual activity without consent. Across Canada, the age of consent for non-exploitative sexual activity is 16 years. The age of consent for exploitative activity (prostitution, pornography, or sexual activity in the context of a relationship of trust, authority or dependency) is 18 years.
This age of consent does not, however, prohibit consensual sexual activity between youth. The Criminal Code permits consensual sexual activity between:
- Youth of 14 or 15 years of age and a person less than 5 years older
- Youth of 12 or 13 years of age and a person less than 2 years older
Children under the age of 12 are considered incapable to provide consent for any sexual activity, with any person, regardless of age of the other person. Although the Criminal Code does not mandate physicians to report non-consensual sexual activity, physicians must consider whether they have a duty to report under the relevant legislation.
Physicians should be familiar with the public health legislation in their province or territory specifying which diseases must be reported. Some statutes also require reporting when a patient is not following treatment advice related to a communicable disease.
Currently, Alberta,16 Manitoba,17,18 Ontario,19,20 Quebec,21 Nova Scotia, 22 Prince Edward Island,23 and Newfoundland and Labrador24 have legislation mandating the duty to report elder and/or vulnerable person abuse depending on circumstances. British Columbia,25 New Brunswick,26 and Yukon27 allow for discretionary reports. Physicians should familiarize themselves with the relevant provincial/territorial legislation to determine their reporting duties.
In most jurisdictions, including Saskatchewan,28 Manitoba,29 New Brunswick,30 Prince Edward Island,31 Newfoundland and Labrador,32 the Northwest Territories,33 Yukon,34 and Nunavut,35 physicians have a mandatory duty to report conditions impacting fitness to drive. In British Columbia,36 a report is mandatory only if a patient continues to drive after being warned not to. Ontario37 has a mandatory duty to report a list of conditions determined by the Ministry of Transportation.38 Physicians may use their discretion to report conditions that fall outside that list.
Physicians must make a report even if a patient says they will not drive, or if another physician has already reported. In most jurisdictions, a report must be made irrespective of whether the patient has a valid licence; it is sufficient that the patient is of driving age.
Making a report is discretionary in Alberta,39 Quebec,40 and Nova Scotia.41 In Quebec, however, the Collège des Médecins du Québec considers that, if the physician has reason to believe the patient will continue to drive despite being warned not to and the patient represents a serious risk to public safety, the physician must make a report42.
Physicians should familiarize themselves with the conditions triggering a mandatory report in their jurisdiction. Physicians may find the CMA’s Driver’s Guide: Determining Medical Fitness to Operate Motor Vehicles43 helpful in determining whether a reporting obligation exists and to whom the report should be made.
In addition, there are federal laws (Aeronautics Act,44 Canada Shipping Act,45 and the Railway Safety Act46) that mandate the reporting of patients with a medical condition that could affect aeronautics, railway, or maritime safety. Determining if a patient holds one of these occupations may be an important part of a clinical encounter.
The obligation to report gunshot and stab wounds is typically imposed on healthcare facilities, and not on individual physicians. In some jurisdictions, the obligation imposed on facilities could also extend to physicians' private medical offices and walk-in clinics.
Physicians are expected to take reasonable steps to help prevent drug diversion (the transfer of controlled substances from lawful sources to the illicit marketplace) and related fraudulent activities. Controlled drugs and substances are those that are listed in the Controlled Drugs and Substances Act.47 These drugs are prescribed by licensed medical practitioners and sold through pharmacies and dispensaries for medical treatment. Possession of these substances is legal only with a prescription or other lawful authorization.
Physicians must report to Health Canada’s Office of Controlled Substances theft or loss of a controlled substance from their office supply no later than 10 days after the discovery of the event.47-49 While Health Canada’s Office of Controlled Substances suggests that forged prescriptions for controlled substances also be reported, there is no legal requirement for physicians to do so.
Some Colleges recommend that physicians notify appropriate authorities of any type of fraudulent prescription.
- In British Columbia, the Registrar has stated that physicians should promptly report lost or stolen duplicate prescription pads to the College.50
- In Alberta and in the Yukon, if a Triplicate Prescription Program (TPP) Alberta pad or any of the forms are missing or stolen, the College requires physicians to contact the police and notify TPP Alberta immediately.51
- In Ontario, the College has published guidelines on steps to be taken following prescription pad theft or forged prescriptions.52
- In Quebec, physicians may report prescription pad theft or fraud to the Alert Program of the Ordre des pharmaciens du Québec and may report to the police if the individual is not a patient. If the fraud was committed by a patient, the College suggests discussing the issue with the patient to determine a therapeutic plan.53
- In Nova Scotia, physicians must report any missing or stolen prescription forms to the Administrator of the Prescription Monitoring Program. Physicians may also report possible theft of any prescription forms to appropriate law enforcement authority, licensing authority, pharmacies and other prescribers.54
- In Newfoundland and Labrador, the College’s Tamper Resistant Prescription Pad Program55 requires that the theft of a tamper resistant prescription pad be reported immediately to both the Newfoundland and Labrador Pharmacy Board and the Pharmaceutical Services Division of the Department of Health and Community Services. The College also recommends that the theft be reported to the Royal Canadian Mounted Police (RCMP).
When reporting prescription pad theft or fraud, physicians should carefully consider their duty of confidentiality toward their patient. Improper disclosure of identifying patient information to police or to Health Canada’s Office of Controlled Substances could expose physicians to complaints to regulatory authorities or privacy commissioners.
In all provinces and territories, physicians have a mandatory duty to provide the workers compensation/safety Board or Commission with a medical report on an injured worker. Physicians should familiarize themselves with their provincial/territorial legislation, as the timing of the reports varies across jurisdictions.
Physicians have a mandatory duty to report a death when it falls within specific circumstances. In all provinces and territories, physicians have a mandatory duty to report death attributed to violence. Other circumstances in which death must be reported vary across jurisdictions. Physicians should familiarize themselves with the conditions triggering a mandatory reporting obligation in their province or territory.
In British Columbia, Saskatchewan, Ontario, New Brunswick, Prince Edward Island, Northwest Territories, Yukon, and Nunavut, conditions for reportable deaths are outlined in each jurisdiction’s Coroners Act.56-62 In Alberta, Manitoba, Nova Scotia, and Newfoundland and Labrador, reportable deaths are listed in the Fatality Inquiries Act.63-66 In Quebec, physicians should consult the Act respecting the determination of the causes and circumstances of death.67
Physicians may have ethical and professional duties to self-report to their regulatory authority (College) in certain specified circumstances (e.g., where they have a specified medical condition, are subject to criminal charges, are subject to findings of negligence, etc.). Physicians are encouraged to consult their College’s policies to familiarize themselves with their ongoing and annual self-reporting duties. Physicians finding themselves in need of help should consider accessing their provincial or territorial physician health and wellness program.68
Physicians may be required to report their reasonable concerns that another physician or healthcare professional is not competent to practise, is suffering from a physical or mental ailment impairing the ability to practise, or that continuing to practise might constitute a danger to the public. Physicians should become familiar with their jurisdiction’s legislation and College policies related to the reporting of colleagues. Physicians should also be aware that the CMA Code of Ethics and Professionalism69 states that physicians have a responsibility to “avoid impugning the reputation of colleagues for personal motives; however, report to the appropriate authority any unprofessional conduct by colleagues”. Similar responsibilities apply under Québec’s Code of Ethics of Physicians.70
Reporting a colleague can be upsetting both for the person reporting and for the one being reported. It is generally advisable to discuss the need to report with the colleague being reported. Physicians may wish to contact their physician health and wellness programs,68 or can refer a colleague, for support through difficult situations.
Failure to report a physician who should be reported may result in disciplinary proceedings. It could also result in a legal action if patient harm arises from the unreported physician’s practice of medicine.
It is generally mandatory to report sexual misconduct of a physician colleague and sometimes other healthcare professionals to the relevant regulatory authority (College). Physicians’ duty to report may arise from legislation or College policy, depending on their jurisdiction. Physicians should become familiar with their jurisdiction’s legislation and College policies related to the reporting of physician colleagues and other healthcare professionals. Physicians should also be aware that the CMA Code of Ethics and Professionalism69 state that physicians have a responsibility to “avoid impugning the reputation of colleagues for personal motives; however, report to the appropriate authority any unprofessional conduct by colleagues”. Similar responsibilities apply under Québec’s Code of Ethics of Physicians.70
Depending on the jurisdiction, a report may not be required if the information relating to the sexual misconduct of the colleague was obtained in the course of the physician providing professional services to that colleague.
In British Columbia and the Yukon, if the information of sexual misconduct was obtained from a patient, consent of the patient, or their substitute decision-maker if the patient is not competent, must be obtained before making a report.71,72 In the Yukon, however, if the nature and significance of the violation is such that it should be reported, in the absence of the patient’s consent, the physician must report without providing the patient’s name.72 In Ontario and Prince Edward Island, the law specifies that, where the information was obtained from the patient, the physician must make best efforts to advise the patient of the requirement to report before doing so. The name of the patient must not be included in a report unless the patient or substitute decision-maker consents in writing to the inclusion of the patient's name.73,74
In situations where a duty to report is considered, physicians should document their rationale for their decision to report (or not report) in the patient’s medical record, if applicable, and in a personal and confidential file if the situation relates to a non-patient. The information recorded should be factual and objective, and should include information related to the situation leading up to making a report (or not reporting).
A note might contain the following information:
- condition or situation leading to a possible duty to report
- rationale for choosing to report, or choosing not to report
- whether the duty to report was discussed with the person being reported
- if the report was not discussed with the person being reported, reasons for choosing not to inform the person
- answers to questions raised by the person being reported
- who the report was made to, and the specific information disclosed