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

Noting that the claim was stated rather broadly, the court interpreted the plaintiff’s position as “a psychiatrist, treating a potentially violent patient with significant mental illness, owes two duties of care to the family members of that patient, with whom he resides: (1) to provide diligent and prudent care to that patient; and (2) to warn the family members if the patient presents a clear and imminent danger to them.”¹⁹

The court referred to Smith v. Jones and concluded that it may support a conclusion that one or both of the defendants were justified in releasing confidential information about Bradley’s condition to his parents or to the police, on the basis of public safety. However, it did not go as far as to establish a duty to warn on the part of the defendant physicians. The court noted that the duty to warn was a novel claim and was “dubious of its likelihood of success” but declined to strike the claim on the basis that it was plain and obvious that it could not succeed. While the court found that the claim had not been properly pleaded and struck it on that basis, the plaintiff was granted leave to re-plead the claim in relation to the duty to warn. The court advised that the claim should set out sufficient facts to support each of the elements of the test set out in Smith – clarity, seriousness, and imminence – and specifically that the pleading should state the factual basis to support how and when each defendant became aware of a specific threat to cause serious bodily harm to Anna or William, and clarify what specifically Anna and William ought to have been warned about. While no further decisions relating to McKee are available at this time, this decision leaves the door open for the duty to warn third parties to be recognized by Canadian courts in the future.

Conclusion

The duty to warn has not been specifically dealt with by Canadian courts. Although the Pittman case provides some indirect support of such a duty, any counsel pursuing such a claim would be prudent to sufficiently particularize the claim, including the facts detailing the clarity of the risk and the seriousness and imminence of the harm.

1. “CMPA – When to Disclose Confidential Information” (October 2023). Available at https://www.cmpa-acpm.ca/en/advice-publications/browse-articles/2015/when-to-disclose-confidential-information#ref
2. Motor Vehicle Act, RSBC 1996 c. 318, s. 230
3. Public Health Act BC 2008 c. 28, Reporting Information Affecting Public Health Regulation, BC Reg.167/2018
4. Child, Family and Community Service Act RSBC 1996 c. 46, s. 14.
5. 17 Cal. 3d 425 (1976)
6. Ibid, at page 343
7. Ibid, at page 340
8. Ibid, at page 347
9. 112 DLR (4th) 257
10. Ibid, at para 634
11. Gerald B. Robertson and Ellen I. Picard, Legal Liability of Doctors and Hospitals in Canada, 5th ed.2017, p. 47
12. [1999] 1 SCR 455
13. 1997 CanLII 12625 (BC SC)
14. 62 BCLR (3d) 198, 1998 CanLII 4689 (BC CA)
15. Ibid, at para. 76
16. Ibid, at para. 77
17. Ibid, at para. 83
18. 2024 ONSC 4258
19. Ibid, at para. 42