ASSERTION OF PRIVILEGE IN THE CIVIL CONTEXT

Patient-Physician Clinical Notes

Class Privilege

The most well-known forms of privilege are “legal advice privilege” and “litigation privilege”. ¹ The grounds of privilege are not firmly closed however. ²

1. Wigmore Test - No Class Privilege

In 1991 a decision of the Supreme Court of Canada, ³ considered the issue of whether privilege may attach to communications between a parishioner and both a pastor and a lay counsellor of a fundamentalist Christian church. The case is important in setting out the distinctions between a privilege which is defined as a class or blanket privilege and the second category of privilege which is determined on a case-by-case.

In the latter instance, a court will apply the four components of the Wigmore test which are as follows:

1.  The communications must originate in a confidence that it will not be disclosed;
2. The elements of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties;
3. The relation must be one which in the opinion of the community ought to be sedulously fostered; and
4. The injury which would inure to the relationship by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of the litigation.

A class privilege or blanket privilege or prima facie privilege or common law privilege, the court stated, allowed a prima facie presumption of inadmissibility, once the relationship has been shown to fit into the class. It is the onus of the party seeking that the evidence be admitted as an exception to the general rule.

In applying the Wigmore test, the policy reasons for excluding otherwise relevant evidence be weighed in each instance, this being the fourth and often the most difficult branch of the test to meet.

Patient-Physician & Wigmore Revised

The common law rejection of patient-physician privilege has been revised by a liberal use of the Wigmore test . ⁴ These cases showed respective applications of the case-by- case analysis and hence did not create, in either instance, a new class privilege.

When a potential for privilege has been found by the successful application of the first three criteria, the court will then struggle to find a fair balancing of the competing interests on the fourth aspect of the test.

The court will look to affirmative evidence to show that there is likely, and rationally so, expected to be a serious psychological or other harm suffered by the plaintiff in the event of disclosure of the contested material.

Where the fourth branch is satisfied, a court will often order production of the contested material on terms designed to protect the inherent privacy interests and allow for the relevant facts to be put before the decision maker.

If the plaintiff can show the contested information in the disputed materials can be proven independently without the disputed materials being produced, this will improve the likelihood of the materials being fully protected from production.

Confidentiality Conditions

This conclusion, is, however, unusual. The pattern of the case law is to allow the production of the notes, if relevant, and then to attach terms designed to protect the confidentiality of their contents. This is also so for diary or journal entries which are not covered by a blanket privilege.

The historical common law view has been that there is no privilege in information passing from a patient to his medical care provider. ⁵

The Supreme Court of Canada ⁶ considered the issue of disclosure of medical records of the communications between a psychiatrist and the victim of a sexual assault by a prior treating psychiatrist ⁷ and concluded that the relationship between the plaintiff and her psychiatrist met the traditional fourfold test. The court also noted that as a policy issue, the common law must be updated to reflect Charter values of privacy and equality before the law.

Once a privilege has been established, it must be found that the benefit of protecting the privilege outweighs the interest of production, this being the fourth branch of the test: ⁸

These criteria, applied to the case at bar, demonstrate a compelling interest in protecting the communications at issue from disclosure. More, however, is required to establish privilege. For privilege to exist, it must be shown that the benefit that inures from privilege, however great it may seem, in fact outweighs the interest in the correct disposal of the litigation.

Partial Privilege

The balancing of the conflicting interests, the court determined, will in most cases, result in an order which qualifies the production of documents, reflecting a “partial privilege”.

The court essentially concluded that a relationship between a patient and psychiatrist could lead to a privileged relationship, given the above tests, after which the parties may debate the need to produce individual documents, reflective of the competing interests.

The need for the examination of each document may not be required, when affidavit evidence describing the general nature of the information may suffice.

The Ontario Court of Appeal reviewed the impact of this decision ⁹ in a case in which the plaintiff and her two children commenced a civil action against the defendant following his conviction for sexual assault. The defendant sought production of the plaintiff’s psychiatric records, which was refused at first instance on the grounds of privilege.  In this instance, there was not the required evidence of the promise of, or the need for confidentiality, to uphold the claim for privilege, in that the requested records related to the pre-assault medical history.

A similar order was sought in case involving a plaintiff who sought psychiatric treatment as a patient of the defendant in 1976. The two parties established a 16 year sexual relationship which began when the plaintiff was patient and continued when she was an employee and later a tenant of the defendant, ending about a year after she ceased being an employee or tenant, which was two and a half years after the patient relationship had ceased.

The defendant sought counselling from a psychiatrist with respect to the end of this relationship and the allegations made in the claim in this proceeding. The plaintiff sought production of these clinical notes, arguing that a confidential report may contain some observation or finding which may assist her in the case.

The court noted that this request differed from the usual production motion. Nonetheless the same considerations of determining relevance and privilege should be applied, as the court concluded. The notes were examined and found to be irrelevant to the issues. ¹⁰

Conditions are often attached to the production of the disputed medical records. In one arbitral case, the union was allowed to redact communications alleged to be privileged, but allowed the employer to be advised why any deleted materials were refused and that any dispute would be determined by him.

The arbitrator had ordered pre-hearing disclosure of medical records, including psychological records, in a case involving a disputed short and long term disability benefits, subject to strict conditions on the use of such records. The conditions attached were that (1) only employer counsel and its medical experts may view all the records; (2) any person viewing such records must keep them confidential; (3) the documents may be used only for the hearing; (4) only one copy could be made and (5) the medical documents must be destroyed at the end of the hearing. The order also allowed either party to re-apply to him in the event that the order prove to be unworkable. The employer appealed.

The Court of Appeal noted that the standard of review was correctness. The Court of Appeal agreed that the making of the Ryan order was not limited to facts which paralleled those of Ryan and agreed that the documents in question were subject to a privilege. That finding, however, as the court stated, would not end the analysis, as the court must also consider the terms which will protect the privilege as much as possible, yet interfere with the employer’s right to defend as modestly as possible.

The Court agreed that the order in question could not survive the appellate challenge as it was not “outside the scope of acceptability”. ¹¹

The Supreme Court ¹² considered in 2005 an issue involved the right of the defendant to access a psychiatric record kept by a physician. The action was brought by the plaintiff against the manufacturer of a metal prosthesis and her physicians, one of whom used the device to perform a reduction on her fractured femur.

The initial court had ordered production of the psychiatric record, on which the Court of Appeal reversed. The Supreme Court restored the initial order. The court recalled that all parties and counsel are deemed to undertake not to use the information which has been received for purposes external to the litigation.

The Court also noted the options available to the judge to ensure a fair disposition of the matter in dispute and protect the contested material. These include requiring the objector to file an affidavit explaining the basis for the objection and list and describe the documents in controversy. This would allow the judge to review the evidence privately. The judge could also order the documents be produced subject to conditions of confidentiality or order counsel not to disclose documents to third parties or to the immediate parties in the litigation.

In practice, the common law courts typically will attach privacy terms to materials which are clearly relevant to the issues in dispute. ¹³ The plaintiff had suffered injuries in a car accident and sought damages not only for the physical injuries but also for emotional and psychiatric injuries. The complicating issue was that the plaintiff had sought treatment prior to the accident due to sexual abuse by a close relative when she was an infant of five years.

The defence sought production of the medical records of the psychiatrist and, needless to say, argued that the damages claimed in the action were not the fault of the driver but rather due to the prior childhood abuse.

The court ordered the records be produced on certain terms, noting that “I have not been provided with any medical evidence that this will in fact result in any significant physical or mental harm to A.Y.”, which led to the balancing process on the fourth test. The court noted an absence of any evidence of harm which the plaintiff would suffer due to the production of the documents which were ordered with similar conditions attached.

A similar issue was brought to the New Brunswick Court of Appeal ¹⁴ again involving the fourth test. The motions judge, the court ruled, erred in basing his analysis on what the plaintiff and her counsellor perceived as the likely consequences flowing from the production of the notes of the counsellor.

The motion judge, the Court of Appeal ruled, must assess the reasonableness of the fears, in the full light of the implied undertaking rule and the impact of privacy protections which are typically provided as conditions to the order allowing for production.

Protective Order Qualifiers

The protective order must “ensure the highest degree of confidentiality and the least damage to the protected relationship, while guarding against the injustice of cloaking the truth”, as the Court of Appeal noted was stated in Ryan. The Court of Appeal set aside the order of the motions judge and ordered production on comparable terms.

This issue was again raised on this occasion to protect the identity of third parties whom the plaintiff referenced in her discussions with her physician. The redactions were allowed and performed by the judge hearing the motion. ¹⁵

Personal Journals

This issue is raised in the context in which there is absence of litigation privilege or solicitor client privilege in the notes.

In action asserting sexual abuse by her physician, the plaintiff sought privilege on the contents of her personal journal which she had kept on the advice of her counsellor. The fourth branch of the test failed and the notes were ordered to be produced. ¹⁶

Similar journals were ordered to be produced with redactions. ¹⁷

Such journals were refused when it was determined that there was other evidence available to lead to the same end and that the journal was not “critical to the truth-finding process”. Ironically, such other evidence included clinical notes of the family GP and the psychiatrist, both of whom prepared histories and reports. ¹⁸

Just as in the case with privilege asserted in the medical file, the person seeking the privilege in this instance must lead evidence to show the damage that he or she will suffer should the order be made. ¹⁹