The Duty to Warn – When Can a Physician Breach Patient Confidentiality to Protect a Third party?

The trial judge ruled that Dr. Smith was under a duty to disclose both the statements made by Mr. Jones and his opinion based on them to the police and the Crown.¹³ The BC Court of Appeal changed the mandatory order to one permitting Dr. Smith to disclose the information. Mr. Jones further appealed this decision to the Supreme Court of Canada.¹⁴

Before the SCC, both parties made their submissions on the basis that Dr. Smith’s report was protected by solicitor-client privilege – the highest privilege recognized by the courts – and should be considered on that basis. The court recognized that there are limits on solicitor-client privilege, including the public safety exception, stating that “… society recognizes that the safety of the public is of such importance that in appropriate circumstances it will warrant setting aside solicitor-client privilege.”¹⁵ By extension, the public safety exception would apply to physician-patient privilege, a lower form of privilege than that between solicitor and client.

A majority of the SCC held that there were three factors to be considered in determining when public safety will outweigh the presumption of privilege:

1. Is there a clear risk to an identifiable person or group of persons?
2. Is there a risk of serious bodily harm or death?
3. Is the danger imminent?¹⁶

Of note, the court considered that serious psychological harm may constitute serious bodily harm for the purposes of the test.¹⁷ The Court found that the circumstances in the case permitted Dr. Smith to reveal information that is necessary to alleviate the threat to public safety but did not impose a duty on him to do so.

McKee v. Shahid

The recent Ontario case of McKee v. Shahid¹⁸ dealt with the duty of a physician to warn third parties. Bradley McKee, who had a history of addiction and mental health challenges, stabbed his father, William, to death. The plaintiff, Anna McKee, Bradley’s mother and William’s widow, brought a claim against two psychiatrists who assessed and treated Bradley close to the time of the murder, taking the position that the defendants owed a duty of care to both her and her husband to appropriately treat their son and warn them of any dangers he posed to them.

The plaintiff argued that the duty to warn was recognized in Canada, or, in the alternative, if such a duty was not already recognized, the court ought to recognize the alleged duties in the particular circumstances of this case. The defendants brought a motion to strike the claim in its entirety, asserting the Canadian tort law does not recognize the alleged duty.

The court noted that Bradley’s mental health issues began to emerge in 2008 at 16 years of age, and over the course of subsequent years, he was diagnosed with a number of conditions including depression, anxiety, substance abuse, and personality disorders. He had a history of self-harm and aggressive behaviour towards others and was charged with assaulting a police officer and both his parents in 2016.

In November of 2018, Bradley was admitted to Waypoint Centre, a mental health and addictions hospital, for the fifth time in less than three years. In December of 2018, Bradley’s parents wrote a letter to the centre, urging that he be admitted to Waypoint for a prolonged period due to his deteriorating mental health, including increasing paranoia and delusions. Dr. Shahid was the attending psychiatrist at Waypoint on December 12, 2018, and he discharged Bradley the same day. Although Bradley continued to have weekly appointments with another psychiatrist through a different hospital following discharge, on February 11, 2019, he experienced a psychotic episode at home in which he fatally stabbed his father in the neck.