Exceptions to the Duty of Confidentiality

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The duty of confidentiality is often called the duty of "professional secrecy". This duty does not apply in all situations. Even if the information meets all the conditions for professional secrecy, it still might not be protected. Here are some examples of when professional secrecy does not apply:

Waiver

A person who confides in a professional can waive the protection of professional secrecy. This means to give up the protection. After professional secrecy is waived, the information can be shared with other people.

  • One way professional secrecy can be waived is for the client/patient to give clear permission to share the information. For example, if you sign an insurance contract authorizing your insurance company to see your medical records, then the insurer can have certain information about your state of health.   
     
  • A waiver can also be implied, that is, presumed from a person's actions. For example, if you ask your insurer for a disability benefit because of a work accident that affects your psychological well-being, then you are waiving the confidentiality of your psychologist's opinion.  

 

In Case of Danger

A professional can reveal information that is usually protected by professional secrecy to prevent a violent act, such as suicide. The professional must believe that a person or identifiable group of people risks death or serious injury in the very near future. The professional can share information needed to prevent the violent act with the people involved, with their representatives, or with people who are trained to rescue those in danger (such as the police).

For example, a psychiatrist who treats a mentally ill patient and realizes she wants to hurt her parents is allowed to tell the police.

 

Committing a Crime

If a client asks a professional for an opinion that will help the client commit a crime, professional secrecy does not protect the meeting or the information provided.

But keep in mind that professional secrecy applies when clients confess their crimes to their lawyers.

 

Infectious Diseases

If a person has an illness that can be dangerous to the public, doctors must tell public health authorities and gives these authorities certain information. This exception only applies to certain illnesses, such as smallpox, whooping cough, syphilis and measles.

 

Inspection and Investigation by Professional Orders

Professional orders must make sure their members have the skills necessary to practise their professions and that they are honest. (Professional orders are associations that oversee certain professions, such as doctors and lawyers.)  The orders therefore have a duty to inspect what their members do, investigate them, and deal with any complaints. When an order has to inspect, investigate and deal with complaints, a professional cannot claim professional secrecy and refuse to provide the information the order is asking for.

 

Search for the Truth

If there are important enough reasons, a judge can allow a professional other than a lawyer or notary to share information that is usually protected by professional secrecy. The judge can decide that the search for the truth and a person's right to a defence is more important than professional secrecy.

 

Protection of Children

A professional providing care for a child must notify the department of youth protection if the child's development or safety is in danger. In this type of situation, the interests of the child are more important than professional secrecy.

A judge can also cancel the protection of professional secrecy if the confidential information would be helpful in making a decision in the best interests of the child. For example, a judge can order a psychologist to discuss what happened at a meeting with a parent so the judge can decide who gets custody of the child.

Important !
This article explains in a general way the law that applies in Quebec. This article is not a legal opinion or legal advice. To find out the specific rules for your situation, consult a lawyer or notary.