Professional Secrecy and Access to the Medical Record

Overview

A patient tells a physician things that would be told to no one else, and the physician observes things the patient may not even know. Quebec law treats everything gathered in that relationship as confidential. (secret professionnel) is a fundamental right under the Charter of Human Rights and Freedoms (Charte des droits et libertés de la personne), a statutory obligation under the Professional Code (Code des professions), a disciplinary duty under the Code of Ethics of Physicians (Code de déontologie des médecins), and a rule of evidence under the Civil Code of Quebec (Code civil du Québec, CCQ). This tenth note in the Medical Liability series covers the content of the secret, the exceptions that lift it, the civil consequences of a breach, the unsettled question whether a physician may or must warn a third party endangered by a patient, and the patient's right to consult and correct the medical record.

Learning Objectives

Distinguish the two functions of professional secrecy: the and the evidentiary .
Explain why Quebec law recognizes a power, not a duty, to warn third parties, using Smith v. Jones and Watters c. White.
State the patient's to and of the record under arts. 35 to 41 CCQ, and the grounds on which access may be refused.

The Principle of Professional Secrecy and the Confidential Record

Two Dimensions of Professional Secrecy

Professor Catherine Piché describes professional secrecy as serving a double purpose. In its first sense, it protects the confidentiality of the professional-client relationship against the public in general. This is a duty of discretion: the professional generally may not reveal the client's confidences to third parties. The duty may flow from a statute, a regulation, or the mere existence of a contract, and its violation exposes the professional to sanctions.

In its second sense, professional secrecy is the right or obligation of a person not to disclose, before a court, confidential information received in the exercise of their functions. Courts treat this dimension as an immunity or privilege that restricts the admissibility of evidence and stands as an obstacle to the discovery of truth. Quebec law accepts that cost because the right to privacy prevails and because the patient-physician relationship cannot survive without it. The physician therefore has both an obligation to remain silent and a right to remain silent. Piché adds that democratic societies accept such limits on evidence because privacy and human dignity rank among their fundamental values.

Legislative Foundations

The Quebec Charter. Article 9 provides that every person has a right to non-disclosure of confidential information. A person bound by law to professional secrecy may not disclose confidential information revealed by reason of their profession, even in judicial proceedings, unless authorized by the person who made the confidence or by an express provision of law. The court must, of its own motion, ensure that professional secrecy is respected.

The Civil Code. Article 2858 CCQ requires the court, even of its own motion, to reject evidence obtained in violation of fundamental rights and freedoms where its use would tend to bring the administration of justice into disrepute. The second paragraph removes that second criterion where the violation concerns professional secrecy: the breach alone suffices to exclude the evidence.

The health services statute. Article 19 of the Act respecting health services and social services (Loi sur les services de santé et les services sociaux) provides that the record of a user is confidential and that no one may have access to it except with the consent of the user or of the person who may consent on the user's behalf, subject to the cases the provision lists in which information may be communicated without consent.

The Code of Ethics. The Code of Ethics of Physicians (RLRQ c. M-9, r. 17) translates the principle into concrete professional conduct.

Scope of the Secret

The secret is broad. Professors Philips-Nootens and Kouri write that it extends to everything that comes to the physician's knowledge in the course of the therapeutic relationship: the facts reported by the patient, and equally the physician's own findings on examination, investigation, or laboratory testing. Although the Charter uses the word "revealed," the Code of Ethics covers the whole of what comes to the physician's knowledge in the exercise of the profession, and its reach is as wide as possible. The secret is not confined to what is said.

Under art. 20 of the Code of Ethics, the physician, in order to preserve the secret:

must keep confidential what has come to their knowledge in the exercise of the profession;
must refrain from holding or participating in indiscreet conversations about a patient or the services rendered, including on social networks, and from revealing that a person has sought their services;
must take reasonable means, with respect to the persons who collaborate with them, to ensure that professional secrecy is preserved;
must, when practising with a couple or a family, safeguard the right to professional secrecy of each member;
may not disclose facts or confidences of which they had personal knowledge, except where the patient authorizes it, where the law authorizes or orders it, or where there is a relating to the health or safety of the patient or of those around the patient.

The duty to supervise collaborators reaches into the ordinary clinic: Philips-Nootens and Kouri note that calls about appointments or test results must be handled discreetly, and that the waiting room must allow staff to record the reason for a visit without informing everyone present.

Liability for Breach

Civil actions for breach of confidentiality are rare, because the damages recovered are usually so modest that victims do not sue. The reported decisions nonetheless treat a breach as a fault (faute) giving rise to reparation.

In Droit professionnel - 1, [1992] R.R.A. 11 (C.S.), a psychologist retained by a father during divorce proceedings to assess the family, after the mother alleged sexual abuse, disclosed her conclusions at the hearing once the court had released her from her secret. She had, however, earlier revealed the report to the former spouse and her lawyer without judicial authorization, which contributed to part of the father's injury.

In Héroux c. Huard, 2009 QCCQ 13639, the Court of Québec (Cour du Québec) set out three conditions for invoking professional secrecy: the person consulted must be bound by professional secrecy; the information must have been revealed by the client and be confidential in nature; and the communication must have taken place within a professional relationship. The defendant physician, who was following the plaintiff during treatment for alcohol dependence, revealed the plaintiff's extramarital relationships to the plaintiff's daughter. The court found the breach clearly proven, held that the plaintiff had suffered an injury and was entitled to reparation, and noted that he had never waived the right or the privilege.

In Jaime c. Concordia Physiosport DDO inc., 2018 QCCQ 7991 (Small Claims Division), the defendant disclosed information from the patient's SAAQ file to her employer without consent. The court found an infringement of her dignity, privacy, and right to professional secrecy, fundamental rights protected by the Charter and reflected in the Professional Code and the Civil Code. The disclosure also revealed that she had consulted the clinic before, itself a protected fact.

The Exceptions

The Charter and the Code of Ethics open the same two gateways: authorization by the patient, and an express provision of law. Case law adds implied , and the Professional Code adds the examined in the next section.

Statutory Exceptions

Several statutes require or permit disclosure, and the distinction between "must" and "may" matters for liability.

Youth protection. Article 39 of the Youth Protection Act (Loi sur la protection de la jeunesse) obliges every professional who provides care or assistance to children and who, in the exercise of that profession, has reasonable grounds to believe that the security or development of a child is or may be considered to be in danger within the meaning of arts. 38 or 38.1, to report the situation to the director of youth protection without delay. The same obligation binds institutional employees, teachers, childcare workers, and police officers. This is a true .

Fitness to drive. Article 603 of the Highway Safety Code (Code de la sécurité routière) permits any health professional to report to the Société de l'assurance automobile du Québec the name, address, and state of health of a person aged 14 or over whom the professional considers unfit to drive, and expressly authorizes disclosure of information revealed by reason of the profession. Article 605 bars any action in damages against a professional who relies on it. This is a power coupled with an immunity.

Public health. The Public Health Act (Loi sur la santé publique) requires the reporting of certain diseases and infections to the public health director; art. 4 of the Regulation under the Public Health Act lists them, including cholera, viral hepatitis A and B, human papillomavirus infection, influenza, Lyme disease, and shingles. Reporting is a partial breach of the secret, accepted because it serves public health, and it does not license disclosure to anyone else.

The Professional Code. Article 60.4 applies to every professional in Quebec and is the most important exception. Its first two paragraphs restate the rule and the two classic gateways (client authorization and express provision of law). The third paragraph adds the public safety exception. The professional may communicate protected information in order to prevent an act of violence, including a suicide, where the professional has reasonable grounds to believe that an imminent danger of death or serious bodily injury threatens a person or an identifiable group of persons. The communication may be made only to the person or persons exposed to the danger, their representative, or the persons who can come to their aid, and only the information necessary for that purpose may be communicated.

Two features stand out. The professional may communicate; nothing obliges them to. And secrecy remains the rule: the exception is confined to imminent danger, identifiable victims, appropriate recipients, and necessary information. Article 21 of the Code of Ethics adds that the physician must record in the patient's file, for each such communication, the date and time, the person or group exposed to the danger, the recipient and their capacity, the act of violence to be prevented, the danger identified, its imminence, and the information communicated.

Patient Authorization

Paragraph 5 of art. 20 of the Code of Ethics allows disclosure where the patient authorizes it. The authorization is a waiver (renonciation), and it may be contractual.

The leading illustration is Frenette v. Metropolitan Life Insurance Co., [1992] 1 S.C.R. 647. When applying for life insurance, the insured signed an authorization giving the insurer unlimited access to his medical records during his lifetime and upon his death, for risk assessment and claims investigation. The Supreme Court of Canada held that the hospital was not justified in refusing to communicate the records; given the authorization and the nature of the information sought under art. 402 of the former Code of Civil Procedure, the courts had no choice but to grant the request. The stakes were real: the policy carried an accident benefit, and the insurer wanted the record to show suicide rather than accident. A person who takes out life insurance thus waives professional secrecy over their medical records for the rest of their life, to the extent the contract provides.

Waiver may also be inferred from everyday conduct. Philips-Nootens and Kouri observe that a patient who is accompanied by a relative or friend at the consultation, or who tolerates that person's presence at the hospital bedside, implicitly waives the secret with respect to that person. A patient who authorizes the physician to leave a voicemail on a given device waives the secret to that extent, and the physician must then use the authorization restrictively. Email raises the same questions.

Implied Waiver and Judicial Proceedings

A patient who sues a physician cannot at the same time prevent the physician from using the medical record: the right to a requires access to the file. Whether the waiver arises as soon as proceedings are instituted depends on the claim. A suit about a remark the physician made will not require the record; a suit about a surgical operation will. In general, the institution of proceedings carries an .

The Quebec Court of Appeal (Cour d'appel) settled the principle in Coffey c. Tran, 1991 CanLII 3804 (QC CA): persons who claim reparation for injury caused by health professionals and hospital institutions must waive the privilege of confidentiality of their records, but only where the records sought are relevant and connected to the litigation, and relevance and connection must be shown before the documents are communicated.

In Frenette, the Supreme Court extended the reasoning: if an implied waiver may be found automatically in professional liability actions, the concept should apply equally in life insurance matters, even though waiver for the future is interpreted restrictively.

A related difficulty is publicity. Judgments in medical liability cases are published with information drawn from the record, and a party who goes to trial cannot do so anonymously.

Power or Duty to Warn Third Parties of Danger

Outside the cases where a statute compels reporting, the physician is not obliged to break the secret, though the physician may do so under art. 60.4 Professional Code and art. 20(5) Code of Ethics. The harder question is whether the physician owes a duty to a third party to warn them of a danger, such that a failure to warn could ground an action by that third party.

Public Safety and the Professional Code

The American reference point is Tarasoff v. Regents of the University of California, 551 P.2d 334 (1976). A Berkeley student confided to his psychologist an intention to kill a young woman and did so two months later. The Supreme Court of California held that, the victim being identifiable, the psychologist had a duty to take the measures necessary to have her warned or protected. American law since then requires reasonable steps to warn the victim or the authorities.

Canadian law took a different path in Smith v. Jones, [1999] 1 S.C.R. 455. The accused, charged with aggravated sexual assault on a sex worker, was referred by his lawyer to a psychiatrist on the assurance that the consultation was privileged. During the interview, the accused described in detail a plan to kidnap, rape, and kill sex workers. After the accused pleaded guilty to an included offence, the psychiatrist learned that his concerns would not be considered at sentencing and sought a declaration that he was entitled to disclose the information in the interest of public safety.

The chambers judge held that the public safety exception released the psychiatrist from confidentiality and obliged him to disclose to the police and the Crown. The British Columbia Court of Appeal varied the order so as to authorize disclosure rather than compel it, and the Supreme Court of Canada affirmed. Three factors determine whether public safety overrides the privilege:

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

The psychiatrist could therefore call the authorities but was not obliged to, and any disclosure had to satisfy the three conditions. Article 60.4 Professional Code was adopted directly after this decision, which remains the leading authority. Residents and trainees are bound by the same standard because they must sign an undertaking to comply with the Code of Ethics. In Canada, warning third parties is a power and not a duty.

Genetic Risk and the Watters Case

The question resurfaced in Liss c. Watters, 2010 QCCS 2628, reversed by Watters c. White, 2012 QCCA 257, with leave to appeal to the Supreme Court of Canada refused. The patient, Corey, had a genetic disease known to his physician, Dr. Watters, and to a researcher, Dr. Fitch, who knew the family well. The plaintiffs were relatives who were not patients of either physician and who argued that they should have been told the disease ran in the family.

The trial judge weighed the protection of third parties against professional secrecy and, relying on the gravity of the disease and the proximity of the relationship (the identifiability of the persons at risk and the intensity of the relationship), concluded that the physician should have told the mother and therefore had a duty to inform the family. One child, Jacob, was awarded six million dollars on the reasoning that, had his parents known, there would have been no birth. Another child, Yochai, received nothing because the chain of causation (lien de causalité) was broken.

The Court of Appeal set the judgment aside. The conduct had to be assessed as of the 1970s, when the practice was to inform the patient and no one else; informing the family would have implied a violation of confidentiality, and Dr. Watters had behaved as a prudent and diligent physician. There was no duty. The central criticism was methodological: the trial judge had drawn on common-law notions of proximity and danger, whereas the correct question in Quebec civil law is what a prudent and diligent physician would have done in the same circumstances.

After Watters, commentators asked whether the reasoning should be limited to genetic conditions or extended to threats of death against third parties. The strong tendency is that Smith v. Jones settled the matter at common law and that the Court of Appeal, in the name of the importance of professional secrecy, has set a very high bar for proving that a physician had a duty to speak.

Doctrine agrees. Jean-Pierre Ménard writes that third parties who might be affected by a genetic disease have no action in professional liability based on the treating physician's failure to inform; the genetic counsellor's duty exists only toward the patient, and change will have to come from the Supreme Court or the legislature. Philips-Nootens and Kouri conclude that there is no duty at general law to notify the patient's relatives without consent. They ask, however, whether a physician who also treats the patient's spouse owes that second patient a special obligation of protection: art. 20 of the Code of Ethics requires the physician to safeguard each family member's right to secrecy, but paragraph 5 would permit disclosure for a compelling and just reason relating to the health or safety of those around the patient, so the second patient's interest could prevail.

The Canadian Medical Protective Association summarizes the position: courts have not expressly imposed on physicians an obligation to alert a third party that a patient represents a danger. The Supreme Court has authorized a physician to warn the police of a serious and imminent danger to an identifiable group, but expressly declined to address whether physicians bear a reporting obligation within the physician-patient relationship.

Comparative Perspectives

France reaches a similar position. Mikaël Benillouche notes, in the context of intentional HIV transmission, that no French statute compels a physician to reveal a patient's condition. Doctrine holds that the practitioner must first try to persuade the patient to disclose; opinions diverge on what follows if persuasion fails, but the prevailing view treats disclosure as a mere possibility.

England has come closest to a duty. In ABC v St George's Healthcare NHS Trust, the claimant, who was pregnant, attended family therapy with her father, who had Huntington's disease, a fatal genetic condition with a fifty percent chance of transmission, and who opposed disclosure to her for fear she would terminate the pregnancy. She later learned of the diagnosis, tested positive, and sued for failure to warn. The Court of Appeal ([2017] EWCA Civ 336), reversing [2015] EWHC 1394 (QB), held that the therapist owed her a duty of care. At trial ([2020] EWHC 455 (QB)), the action was nonetheless dismissed: the defendant had followed reasonable practice, and causation failed because she would not have terminated the pregnancy even had she known earlier. A duty can thus exist in principle and still fail on the facts. For Quebec, the comparison confirms the conclusion: the power to disclose is well established; a duty to disclose has not been recognized.

Access to and Rectification of the Medical Record

Confidentiality protects the patient against the world; it does not protect the record against the patient. The Civil Code's provisions on respect of reputation and privacy (arts. 35 to 41 CCQ) give the person concerned a right to see and correct the information held about them, and they apply to the medical record as to any file kept on a person.

Article 35 CCQ prohibits invading a person's privacy without consent or legal authorization, and art. 37 CCQ requires anyone who establishes a file on another person to have a serious and legitimate reason, to gather only relevant information, and not to communicate it to third parties without consent or legal authorization.

Article 38 CCQ gives the person concerned the right, subject to the other provisions of the law, to examine and obtain a copy of the information in a file about them and to cause it to be rectified. Article 39 CCQ defines the limits on access: the person keeping the file may not deny access unless there is a serious and legitimate reason for doing so, or unless the information could cause serious harm to a third person. Article 40 CCQ sets out the right of rectification: the person concerned may have inaccurate, incomplete, or equivocal information corrected, may have obsolete information or information not justified by the purpose of the file deleted, and may file written comments in the file. Under art. 41 CCQ, where the law does not fix the conditions for exercising the right of access or rectification, or where a difficulty arises in exercising it, such as a refusal, the court determines or settles the matter on application.

Confidentiality under art. 19 of the health services statute runs in favour of the user, whose consent is what opens the file to others; the user's own consultation of the record rests on the Civil Code's right of access. The record's content is not the physician's to withhold or edit at will: the patient may correct it, and a court may order correction. The evidentiary consequences of an altered or incomplete record are examined in the series note on medical records and proof of fault.

Worked example: Marc's file

Marc, 42, consults Dr. Lavoie, a family physician, for insomnia and anxiety. He mentions that he has been drinking heavily, that his licence was once suspended, and that he recently threatened his former business partner in a heated phone call. Three weeks later, Marc's employer receives an anonymous email calling Marc "an alcoholic under psychiatric care," and Marc learns that Dr. Lavoie's receptionist has been discussing his file with her sister, who works in Marc's office.

The disclosure breaches the duty of discretion. The receptionist's indiscretion engages Dr. Lavoie under art. 20(3) Code of Ethics, and the fact that Marc consulted the clinic is itself protected under art. 20(2). On the reasoning of Héroux c. Huard and Jaime, Marc has an action for moral injury, though the modest amounts recovered in comparable cases explain why few such actions are brought.

Dr. Lavoie's own choices are different. Marc's threat opens the door to art. 60.4 Professional Code only if she has reasonable grounds to believe that an imminent danger of death or serious injury threatens an identifiable person; even if the three Smith v. Jones factors are met, she may disclose but is not obliged to, and must document the communication under art. 21 Code of Ethics. His driving history engages art. 603 Highway Safety Code, under which she may report him to the SAAQ with immunity but need not. If Marc sues her, he impliedly waives the secret only for the portions of the record relevant to the claim (Coffey c. Tran). And if he finds the note "patient admits alcoholism" in his file, he may demand rectification under art. 40 CCQ and, if refused, ask the court to settle the difficulty under art. 41 CCQ.

Practice Checklist

Identifying the secret

Confirm that the person consulted is bound by professional secrecy, that the information is confidential, and that it was communicated within a professional relationship (Héroux c. Huard).
Remember that the secret covers the physician's own findings and the fact of the consultation, not only what the patient said.

Before disclosing

Identify the gateway relied on: patient authorization, express statutory provision, compelling and just reason relating to health or safety, or public safety under art. 60.4 Professional Code.
Distinguish provisions that compel reporting (art. 39 Youth Protection Act, public health reporting) from those that merely permit it (art. 603 Highway Safety Code, art. 60.4 Professional Code).
For a public safety disclosure, verify the three Smith v. Jones factors, limit recipients and content to what is necessary, and record every element required by art. 21 Code of Ethics.

Litigation and insurance

In an action against a health professional or institution, expect an implied waiver limited to records relevant and connected to the claim (Coffey c. Tran).
Review any insurance authorization clause; it may waive the secret over the entire medical record for life (Frenette).
Ask the court, even of its own motion, to reject evidence obtained in breach of the secret (art. 2858 para. 2 CCQ; art. 9 Quebec Charter).

Third parties and access

Advise that Quebec law recognizes a power, not a duty, to warn third parties of a danger linked to a patient, assessed against the prudent and diligent physician (Watters c. White).
Confirm the patient's right to examine and copy the record and to have it rectified (arts. 38 and 40 CCQ); test any refusal against art. 39 CCQ and consider an application under art. 41 CCQ.

Glossary

Compelling and just reasonraison impérative et juste: The ground in art. 20(5) Code of Ethics permitting disclosure where the health or safety of the patient or those around the patient requires it.
Confidential recorddossier confidentiel: The user's file in a health institution, accessible only with the consent of the user or of the person who may consent on the user's behalf (art. 19 Act respecting health services and social services).
Duty of discretiondevoir de discrétion: The professional's obligation not to reveal a client's confidences to third parties outside judicial proceedings.
Duty to reportobligation de signalement: A statutory obligation to disclose, such as the duty under art. 39 Youth Protection Act to report a child whose security or development may be in danger.
Full and complete defencedéfense pleine et entière: The right of a defendant professional to rely on the patient's record when sued, which grounds the implied waiver.
Implied waiverrenonciation implicite: The release of the professional from secrecy inferred from the patient's conduct, notably from instituting proceedings against a health professional (Coffey c. Tran).
Privilegeprivilège: The evidentiary dimension of professional secrecy, restricting the admissibility of confidential communications before a court.
Professional secrecysecret professionnel: The obligation of a person bound by law to secrecy not to disclose confidential information received by reason of their profession (art. 9 Quebec Charter). It operates both as a duty of discretion toward third parties and as an evidentiary privilege.
Public safety exceptionexception relative à la sécurité publique: The authorization, recognized in Smith v. Jones and codified at art. 60.4 Professional Code, to disclose protected information to prevent imminent death or serious bodily harm to an identifiable person or group.
Rectificationrectification: The correction, completion, or deletion of information in a file that is inaccurate, incomplete, equivocal, obsolete, or unjustified by the purpose of the file (art. 40 CCQ).
Right of accessdroit d'accès: The right of the person concerned to examine and copy the information held in a file about them (art. 38 CCQ), subject to the limits in art. 39 CCQ.
Waiverrenonciation: The act by which the holder of the secret releases the professional from it, expressly, by contract, or implicitly by conduct.

References and Further Reading

Civil Code of Quebec: arts. 35, 37, 38, 39, 40, 41, 2858.
Charter of Human Rights and Freedoms (Charte des droits et libertés de la personne), RLRQ c. C-12: art. 9.
Professional Code (Code des professions), RLRQ c. C-26: art. 60.4.
Code of Ethics of Physicians (Code de déontologie des médecins), RLRQ c. M-9, r. 17: arts. 20, 21.
Act respecting health services and social services (Loi sur les services de santé et les services sociaux), RLRQ c. S-4.2: art. 19.
Youth Protection Act (Loi sur la protection de la jeunesse), RLRQ c. P-34.1: arts. 38, 38.1, 39.
Highway Safety Code (Code de la sécurité routière), RLRQ c. C-24.2: arts. 603, 605.
Public Health Act (Loi sur la santé publique), RLRQ c. S-2.2, and Regulation under the Public Health Act, RLRQ c. S-2.2, r. 1: art. 4.
Selected case law: Droit professionnel - 1, [1992] R.R.A. 11 (C.S.); Héroux c. Huard, 2009 QCCQ 13639; Jaime c. Concordia Physiosport DDO inc., 2018 QCCQ 7991; Coffey c. Tran, 1991 CanLII 3804 (QC CA); Frenette v. Metropolitan Life Insurance Co., [1992] 1 S.C.R. 647; Smith v. Jones, [1999] 1 S.C.R. 455; Liss c. Watters, 2010 QCCS 2628, reversed by Watters c. White, 2012 QCCA 257 (leave to appeal to the Supreme Court of Canada refused); Tarasoff v. Regents of the University of California, 551 P.2d 334 (1976); ABC v St George's Healthcare NHS Trust, [2015] EWHC 1394 (QB), [2017] EWCA Civ 336, [2020] EWHC 455 (QB).
Doctrine: Piché, Catherine; Philips-Nootens, Suzanne and Kouri, Robert P. (paras. 420 to 430); Ménard, Jean-Pierre; Benillouche, Mikaël, "Les incertitudes juridiques entourant la contamination volontaire par le VIH," AJDP Dalloz, vol. 7, 2012, pp. 388 to 392; Canadian Medical Protective Association, "Quand faut-il divulguer des informations confidentielles?"

Disclaimer

This article is for informational purposes only and does not constitute legal advice. Quebec civil law may evolve through legislation and judicial interpretation. For advice on a specific situation, consult a qualified Quebec lawyer or notary.