Duty to Report – A Sample

There are few and limited situations in which client confidentiality can be breached.  Under Canadian law, there is no general “duty to warn” the police if, as an example, a service provider comes to know that someone is at risk of HIV infection.

For non-regulated organizations (including most social service agencies) there is no legal obligation to warn third parties at risk of harm, including the risk of HIV infection.  Exceptions to this rule apply in the case of a child (under 16) “in need of protection” in which service providers have a duty under child welfare laws to report the situation to child protection authorities (but not to the police).  In addition, individuals who are members of certain professional associations (including those that govern social workers) may require that confidentiality be breached in certain circumstances.  Under no cirucmstances in information given to police.

Staff who are members of regulated professions  have a duty to be aware of the conditions under which they may be required to breach confidentiality, and inform their manager of those conditions.  For example, the Canadian Association of Social Workers says that the general expection of confidentiality does not apply when disclosure “is necessary to prevent serious, foreseeable and imminent harm” to others.

If the incident involves a minor, there is a duty to contact child welfare services

In either of the above situations, staff should consult with their manager to consider if all of the following criteria to consider a breach of confidentiality are met:

  1. There is a clear risk of harm to an identifiable person or group of persons;
  2. There is a significant risk of serious bodily harm or dealth; and
  3. The danger is imminent

If the answer is ‘no’ to any one of the questions above, there is no need to breach confidentiality.

If the answer is ‘yes’ to all of points 1-3 outlines above your manger or Executive Director should be consulted to assess the following:

  • What is the potential harm to a client, to the relationship with the staff member, and to the ability of the organization to carry out its mandate if confidentiality is to be breached?
  • Will a breach in confidentiality harm a client’s partner or other family member?

 

If the decision is NOT TO BREACH CONFIDENTIALITY:

  • Cointinue to consel the client about their legal obligation to disclose their HIV-positive status before engaging in sexual/injection drug-using activities, as well as steps that can be taken to reduce the risks of HIV transmission.
  • Keep clear notes on discussions regarding disclosure.

If the decision is to BREACH CONFIDENTIALITY:

  • Consider the steps the organization will take to report while continuing to focus on the individual’s well-being.
  • Once the organization has decided to breach confidentiality and report:
  1. Never reveal the client’s identity to the third party at risk of HIV infection
  2. Share as little information as possible; work out what details need to be shared.
  3. Decide who needs to be contracted (public health; child welfare authorities in the case of a child under 16).  Under no circumstances does this involve contactin the police.
  4. Tell the client what you are going to do and how, well before you do it.  Include an explanation of the details that will be released.
  5. Help develop a plan for the person to deal with this procedure.
  6. Start making contact.