The duty of confidentiality is often called the duty of “professional secrecy”. However, 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.
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, the insurer can obtain 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, you are waiving the confidentiality of your psychologist’s opinion.
In Case of Danger
In order to prevent a violent act, such as a suicide, a professional can reveal information that is normally protected by professional secrecy. The professional must believe that a person, or an identifiable group of people, is at imminent risk of death or serious injury. 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 protect those in danger (such as the police).
For example, a psychiatrist who treats a mentally ill patient and realizes the patient wants to hurt her parents is allowed to tell the parents and the police.
Committing a Crime
If a client asks a professional for an opinion that will help the client commit a crime, the content of the discussion is not protected by professional secrecy.
However, professional secrecy applies when a client who is consulting a lawyer confesses to a crime.
If a person has an illness that can be dangerous to the public, doctors must tell public health authorities and give these authorities certain information. This duty 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 requested by the professional order.
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 may order a psychologist to discuss what happened at a meeting with a parent so the judge can decide who gets custody of the child.