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Other Infosheets - Professionals

Professional Secrecy

Ariane, 17, is going steady with her boyfriend. Life is good. She decides that it is time for her to go on the pill and takes an appointment with her doctor. But…her doctor just happens to be her mother’s doctor too. Ariane is worried that he will tell her mother what she is planning before she is ready to tell her herself. Can her doctor do that? No. He is bound by professional secrecy.

In this Infosheet, Éducaloi explains the concept of professional secrecy that binds all members of a professional order such as doctors, lawyers, pharmacists and psychologists.

What is professional secrecy?

When a professional is bound by professional secrecy, it means that she is forbidden from revealing a piece of information received from a client. She can’t even give out this information if she is questioned before a judge!

The right to professional secrecy is enshrined in many ways. In Quebec, the Charter of Human Rights and Freedoms turns it into a right that a professional’s clients have. It also extends this right to those who confide in a priest, imam, rabbi, pastor, or any other minister of religion.

The Canadian Charter of Rights and Freedoms says that an accused has the right to a lawyer. The right to professional secrecy is included in the right to a lawyer. Otherwise, another person could get the lawyer to repeat everything confided by the accused making the right to a lawyer meaningless!

Be careful! Only certain pieces of information are protected by professional secrecy.

Also, for that protected information, the law foresees situations in which secrecy can no longer be absolute.

The next questions set out the limits to professional secrecy.

What advantages do I gain from the right to professional secrecy?

The right to professional secrecy sets a climate of confidence between you and the professional. In fact, you can disclose information you would not feel comfortable divulging to other people, even your best friends.

The right to professional secrecy is particularly reassuring in the context of a relationship with a legal professional (lawyer, notary), a medical professional (doctor, psychologist, nurse), or a professional who has access to your financial assets (accountant). These people often have access to very intimate or personal information concerning you, your business, or your family situation.

Who is protected by professional secrecy?

The client and only the client.

Contrary to popular belief, the secret was not put in place to protect a professional from her client.

A professional can never hide behind her secret to avoid answering to the inspector or to the syndic of her professional order.

In the event that her client sues her, a professional must answer all questions that are asked of her.

However, if someone else asks a professional to come to court and act as a witness, she cannot reveal her client’s secrets. Technically, she may not even have to refuse to answer the question because the judge should tell her not to answer.

Only the client can allow a professional to reveal information protected by professional secrecy.

There are extreme or urgent situations that allow a professional to reveal only what is strictly necessary to avoid something serious from happening. These exceptions are dealt with further on.

What kind of information is protected by professional secrecy?

For an information to be protected by professional secrecy, it must satisfy 2 main conditions:

1. The information must be confidential in nature.
   
   Suppose that you want to prove to your doctor that the strength of your knees hasn’t changed with age. You tell her that your bowling average is 225. This information is not protected by professional secrecy. It isn’t confidential in nature: you bowl in public every Tuesday; your team and your opponents are all too well aware of your superior bowling skills.
   
   There is an exception. All of what you say to your lawyer is generally protected by professional secrecy even if it is something that others know about or that seems to be an irrelevant detail in your file.
   
   In one case, the court decided that a person could refuse to hand in his lawyer’s bill, since that information was protected by professional secrecy!
   
   
2. The information must have been provided in the context of a service relationship between the professional and her client.
   
   Let’s assume that you and your dentist are both sports car fanatics and speak together about them for hours. Those conversations would not be covered by professional secrecy since the Studebaker 54 has nothing to do with your teeth, even if it brings a smile to your face.

The protected information may have been communicated verbally or in writing. The opinions or advice (written or oral) provided by the professional are also protected by professional secrecy.

In some cases, even your identity may be protected by professional secrecy if you give precise instructions to this end and you have legitimate reasons for seeking this protection.

What are the situations that allow a professional secret to be revealed?

There are many situations in which a professional secret may be revealed, for example:

• You clearly authorize a professional to reveal it.
  
  If you are taking out insurance and give your doctor permission to discuss your blood pressure with your insurer, you are relieving your doctor from her duty to keep your blood pressure a professional secret from your insurer.

• A professional can share relevant information covered by professional secrecy with her associates, an expert whose help she needs, or her staff. Otherwise, many a document would never get typed… Remember that the professional must make sure that these people keep the secret.
  
  
• A professional is a member of a professional order that must supervise her to ensure that she is competent and that her practice meets certain standards. This would be impossible if inspectors, syndics and members of a disciplinary council could not examine her files or question her freely. They are allowed to do so but they must take the necessary measures to ensure that the secret information stays secret.

• To protect the public against certain serious diseases, the law imposes a duty on doctors to report all probable cases to the public health director.
  
  Normally, the director will keep this information to himself. However, if you are probably a carrier of tuberculosis and health authorities are unable to reach you, they will do what is necessary to avoid an epidemic.

• A professional, other than a lawyer, who cares for or assists children in the practice of her profession, has certain legal duties that take priority over her professional secret.
  
  If she has reasonable grounds to believe that the security or development of a child might be in danger, she must report the situation to the director of youth protection.
  
  For example, a student tells the school psychologist that at home, his little sister is beaten. The psychologist must report it to the director of youth protection.

• A professional who has reason to believe that someone will be hurt or killed can communicate information covered by her professional secret but only what is strictly necessary to avoid a tragedy from occurring.

Can professional secrecy be used to help someone commit a crime?

No. To be protected by professional secrecy, the client must pursue a legal aim.

Imagine that a drug dealer obtained morphine from a pharmacist using false prescriptions. It would be absurd if the pharmacist had to keep quiet about what he knew because of professional secrecy.

Can I do something if a professional is not respecting my right to professional secrecy?

Yes.

A professional who does not respect your right to professional secrecy is committing a professional wrongdoing (fault). You can send the professional a demand letter. In it, you can ask her to stop spreading the information and to pay to you a sum of money for what happened as a result of her indiscretion. If this doesn’t work, you can take it to court.

You can also file a complaint with the professional order to which the professional belongs. The disciplinary council of a professional order can do many things ranging from a reprimand to a suspension of the professional’s right to practice.

For more information, consult our Infosheets:

The demand letter  (http://www.educaloi.qc.ca/en/loi/other_infosheets/31/)
Professional disciplinary councils: The complaint process  (http://www.educaloi.qc.ca/en/loi/other_infosheets/103/)

Can anyone who is not bound by professional secrecy freely tell all?

No. There are laws that protect people’s privacy that have nothing to do with professional secrecy. For example, your bank or your credit card company must keep your financial information confidential.

There are also laws that impose duties of loyalty and discretion. For example, an employee can’t reveal his employer’s client list to a competitor; a real estate agent can’t tell potential buyers that they can get a great price out of her client who is getting divorced (unless her client allows her to say this).

Sometimes, people or companies draw up contracts where they agree to keep things, like specific aspects of a financial deal, quiet.

The duty to be discrete or to keep something confidential is not as absolute as professional secrecy. For example, a person who is not bound by professional secrecy may be obliged to testify in court about something confidential.

Can a professional who stopped practicing reveal everything that she knows?

No. The obligation of professional secrecy lasts a lifetime. The professional’s former professional order will continue to make sure that she keeps your secrets.

Useful Links :

1. Office des professions du Québec  [http://www.opq.gouv.qc.ca/]