Letters / Correspondance

Legal limits to physician­patient confidentiality

Canadian Medical Association Journal 1996; 155: 859-860
The article "Physician­patient privilege: the legal assault continues" (CMAJ 1996; 154: 1760-3 [full text / résumé]), by Marilou McPhedran, limited its scope by concentrating on the criminal aspects of sexual abuse. As we have recently seen in the O.J. Simpson case, a criminal case can lead to a civil action, with demands for punitive damages from the accused. Victim-impact statements, in which factual evidence is not corroborated, can deprive the accused of a major element of his or her defence. There are many examples. I was involved in a case in which the victim-impact statement had already influenced the court. However, the hospital records showed that the statement was a gross distortion of what had happened. Anyone with experience with insurance claims can cite many instances in which access to medical records provided the court with the facts, which were very different from the plaintiff's statement. Use of the plaintiff's statement alone would have misled the court.

All witnesses in court are obliged "to tell the truth, the whole truth and nothing but the truth," although this constraint is not applied to the lawyers or the judge. A criminal case has civil-suit implications. There are cases in which people have sued their parents as a result of "false memory syndrome," which has been thoroughly reviewed by Merskey.[1] Medical authorities must therefore be very careful in giving advice to physicians. By emphasizing confidentiality they may encourage physicians to conceal relevant information, which may lead to perjury charges against the physician. It is not ethical to lie in court. I have dealt more fully with this aspect in my book.[2] This point needs emphasizing; because of medical collusion, several unreasonable and fraudulent claims have been successful.

Absolute confidentiality for physicians does not exist. The requirement for notification of infectious diseases has been recognized for more than a century. Similarly, a patient's right to drive a vehicle or control machinery is subject to invasion of physician­patient confidentiality. In these instances, personal privilege yields to public peril. The medical profession should not become the handmaiden of the legal profession, which is draining enormous sums from compensation settlements and from damages awarded by the courts through its collusion and its withholding of essential information. An honest plaintiff should have nothing to hide. Confidentiality should not be used to obstruct justice, and innocent parties should not be punished because essential information is withheld as "confidential." The College of Physicians and Surgeons of Ontario has recently adopted the principle set through the Tarasoff case,[3] that psychiatrists are expected to warn intended victims of their patients' threatened conduct. Although the Tarasoff decision was strongly criticized by psychiatrists on the grounds of breach of confidentiality, it is surely not in patients' best interests to be accused and convicted of murder. Preventing this outcome alone justifies a breach of confidentiality.

Myre Sim, MD, FRCP (Ed), FRCPsych, FRCPC, FAPA
Victoria, BC

References

  1. Merskey H. The manufacture of personality: the production of multiple personality disorders. Br J Psychiatry 1992; 160: 327-40.

  2. Sim M. Compensation claims: insurance, legal and medical aspects. Victoria (BC): Emmess Publications, 1992.

  3. Tarasoff v. Regents of the University of California et al (1976), 551 P 2d 334 (Sup Ct)

| CMAJ October 1, 1996 (vol 155, no 7) |