Protecting the public from risk of harmBMJ 1998; 316 doi: https://doi.org/10.1136/bmj.316.7137.1033 (Published 04 April 1998) Cite this as: BMJ 1998;316:1033
Ontario's forthcoming regulatory law protects doctors, public, and the patient
- Lorraine E Ferris, Asssociate professor, faculty of medicine, University of Toronto
In autumn 1997 an expert panel representing five medical colleges and associations in Canada recommended unprecedented changes to the Ontario Medicine Act. These changes, now being implemented, will give the province's 20 000 doctors a mandatory duty to inform the authorities when a patient threatens serious harm to others and the doctor believes that violence is likely.1 This new duty clears up previous contradictions in the law and will benefit doctors, their patients, and potential victims of violence.
The recommendations stem from the panel's conclusion that protecting the public from serious risk of harm should override a patient's right to confidentiality. They are intended to (a) protect the public from serious harm, (b) prevent patients from harming themselves by carrying out a serious threat, and (c) protect doctors from legal and professional liability when they disclose information in good faith in line with the newly defined professional standards. Doctors are protected if they take every practical precaution to avoid inaccuracy and unfairness and assess the potential for violence using the criteria established for clear and imminent danger or, in less clear cases, use a method for assessing the risk that meets the new standard of practice.
Doctors are accountable for using due care in assessing the risk, not for the accuracy of their predictions. If, after considering all the circumstances, a doctor remains in doubt the recommended new standard says that he or she should inform—because of the potential seriousness of the consequences of not informing. In addition, the panel has recommended that doctors should be able to consult their professional college or association, a solicitor, or their defence association when making the decision. The panel also recommended that medical school and postgraduate training programmes should teach about clinical assessments for risk of violence.
In Canada patient confidentiality is protected by law. However, this protection is not absolute: doctors should not disclose information obtained from a patient unless they are specifically authorised by (or on behalf of) the patient or required or permitted to do so by law. For example, current Ontario law requires doctors to provide information about a patient without consent when reporting suspected child abuse, certain infectious diseases, and medical unfitness to drive; making reports related to aviation safety or to the Workplace Safety and Insurance Board; completing certificates under the Vital Statistics Act; and responding to a court subpoena. At present, however, no federal or provincial statute specifically requires or permits doctors to report patients who make plausible threats to harm others, although provincial mental health legislation provides for confining these patients to psychiatric facilities if appropriate.
As well as statutory requirements, there are common law duties. The legal definition of the duty to warn about potentially violent patients was first introduced in 1976 in a landmark decision by the California supreme court.2 In Canada the common law duty to warn about potentially violent patients has been used in several cases: one case specifically mentioned that California case3 and another used the British “neighbour principle,” where a judge held that the rule to love your neighbour becomes in law: you must not injure your neighbour.4
Thus, in Canada there seems to be a common law duty that obliges doctors to inform the authorities, the threatened party, or both, if violence is threatened. However, the medical profession's regulations prohibit doctors from providing such information without the consent of the patient—and no statutory law permits or requires disclosure in these circumstances either. Until now doctors who ignored this prohibition were subject to disciplinary action by their regulating college.
The new recommendations state explicitly what is expected of doctors and provide the necessary regulatory changes for them to meet this new standard of practice. Crucial to the recommendations is the principle of duty to inform rather than permissive reporting. All parties benefit under this principle. Potential victims benefit because they can take precautions and protect themselves; if the duty to inform were permissive, doctors would vary in their weighing of confidentiality versus public safety and, as a result, some potential victims would not be informed. Doctors benefit because if they meet the new standard of practice they will be held accountable only for not informing; a permissive duty would leave doctors open to litigation whether they informed or not. The patient benefits because a mandatory duty may make it easier to accept care from a doctor who informs to fulfil a regulatory requirement rather than at his or her discretion. Also, the mandatory duty protects patients from carrying out criminal acts that lead to police investigations, legal proceedings, and convictions.
By taking a proactive stance, defining the duty to inform explicitly, and making the duty mandatory, the Canadian medical profession has set an international precedent and, in the process, made a strong statement about preventing violence in our society.
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