WHEN THE CORONER COMES CALLING

By: George K. Bryce, BCACC legal counsel

Originally published in 16:3 Insights pages 14, 31 – 32 (Winter, 2004)

INTRODUCTION

From time to time, a clinical counsellor may be faced by a request from a coroner1 to provide all the counsellor’s clinical records concerning a former client. Such a request would typically be made in the context of the coroner investing the death of that client. As such, the counsellor could not turn to the former client and seek his or her consent to the counsellor releasing what remains otherwise confidential information.2 The counsellor is therefore faced with a dilemma. On the one hand, the counsellor’s duty of confidentiality to the client continues even after the death of that client. On the other hand, the counsellor faces possible prosecution under the Coroners Act if the counsellor does not comply with the coroner’s order.

In this article, I will discuss what a counsellor should do when the Coroner comes calling. I will begin by considering the question: Does the Coroners Act provide some procedural safeguards for the counsellor who discloses confidential client information to the coroner without the benefit of the estate’s consent?

THE CORONERS ACT

There is no provision in the Coroners Act that expressly states that a counsellor’s duty of confidentiality takes precedence over or – on the other hand - that the duty is supplanted by a duty to cooperate with the coroner during an investigation or inquiry under the Coroners Act in the absence of a consent. It is therefore necessary to consider the Act in more general terms and what the courts have said in relation to the duty of confidentiality in light of the Act’s provisions.

The Coroners Act does provide some degree of protection for counsellors in relation to the counsellor’s participation at formal inquests, but simile protections do not exist in relation to general investigations that are conducted under the Act. The distinction between an inquest and an investigation is important in terms of providing counsellors with some degree of statutory protection.

Subsection 15(2) of the Coroners Act sets out the coroner’s authority during an investigation, which includes the power to inspect information or seize any records relating to the deceased or the deceased's circumstances.  If as a result of an investigation the coroner concludes that an inquest is required, under section 18 of the Act the coroner can then initiate an inquest.3 

Many sections of the Coroners Act set out detailed requirements that govern inquests. For example, section 37 of the Coroners Act provides the authority for a coroner to issue a summons to someone to attend or give evidence during an inquest. This section includes the authority for the coroner to compel the attendance of witnesses and to punish a witness for disobeying a summons to appear, refusing to be sworn, or refusing without lawful excuse to give evidence.

But what protections exist if a counsellor receives a summons to attend and give evidence at an inquest? Section 39 of the Act provides some immunity from subsequent legal proceedings. Subsection 39(2) states: “An answer given by a witness at an inquest must not be used or admitted in evidence against the witness in any trial or other proceedings against the witness, other than a prosecution for perjury in giving that evidence.” Therefore, if a counsellor was later sued by the estate of a former client for breach of the counsellor’s duty of confidentiality and the estate attempts to use the counsellor’s evidence gathered during a coroner’s inquest in that law suit, the counsellor should be able to turn to subsection 39(2) to stop that use. Unfortunately, this subsection does not go further and state that the counsellor would not be liable for breaching the duty of confidentiality; it only raises a barrier that prevents the counsellor’s earlier testimony from being used in a later proceeding arising from such a breach.

Subsection 39(3) allows a coroner to limit or warn a witness who is about to give incriminating evidence, notwithstanding the protections offered under subsection 39(2). Coupled with subsection 39(2), therefore, this subsection provides further protection to counsellors giving evidence at an inquiry.4

But what if, notwithstanding the protections provided by subsections 39(2) and (3), the counsellor refuses to answer the coroner’s questions during an inquest? Subsection 41(2) appears to recognize the ability of a counsellor to object to answering such questions where the answers would reveal privileged information. If a counsellor asserts a claim of privilege during the inquest, the coroner would then have to ascertain the merits of such a claim (in a separate proceeding), no doubt applying the so-called Wigmore Test.5

Unfortunately, it is not clear if the recognition of privileged found in clause 41(2)(a) of the Coroners Act during an inquest also applies to a claim of privilege that may be raised by a counsellor during an investigation, even if that investigation later results in an inquest. The language of this clause refers only to “inquest”, it does not include or refer to an “investigation”. Therefore, it does not appear that the Act automatically recognizes the ability of a counsellor to claim privilege during an investigation, as opposed to raising this claim during an inquest.6

WHAT IS A COUNSELLOR TO DO?

If a counsellor has not taken a specific step at the start of the clinical relationship with the now deceased client (I will have more to say on this step later), the counsellor could be facing a difficult decision.

Because of the lack of clarity in the Coroners Act, if a counsellor is asked by a coroner during an investigation (as opposed to during a more formal inquest) to disclose confidential information about a deceased client without the consent of the client’s estate, the counsellor should inform the coroner of the existence of the duty of confidentiality and thus claim privilege not to disclose that information. The counsellor should then ask for a written decision from the coroner on the claim of privilege, applying the Wigmore Test. This request can be made whether or not the claim of privilege is expressly recognized pursuant to clause 41(2)(a) of the Act in the context of an investigation. In the absence of expressed statutory language to the contrary, a claim of privilege can be raised as a matter of common law.

If, after considering the counsellor’s submission on a claim of privilege applying the Wigmore Test, the coroner decides that the counsellor must disclose the requested information during the investigation, the counsellor should then be able to use that written decision to defend against any later legal proceedings the estate may initiate against the counsellor for the breach of the continuing duty of confidentiality. Without such authority or directive, however, the counsellor could be exposed to a potential legal action from the deceased client’s estate, much as would be the case if a counsellor disclosed information to the coroner during an inquest without consent.

Of course if the claim was raised and adjudicated in the context of an inquest, the above noted statutory provisions provide the counsellor with clearer protection.

OBTAINING INFORMED CONSENT

Fortunately, there is something that all counsellors can do to avoid facing the apparent problem caused by the inability of the Coroners Act to provide them with statutory protection in the face of an order for disclosure of confidential client information during an investigation (as opposed to an inquest). The solution can be found in a simple step that every counsellor should take at the start of clinical sessions with all his or her clients.

Before providing counselling services, a counsellor should seek the informed consent of their client. As part of obtaining that informed consent, the counsellor should explain to the client that the counsellor might have to make disclosures to third parties about otherwise confidential information when the counsellor is required by law to do so. There are a number of such mandatory disclosure requirements, and responding to a coroner's order for release of information (i.e. an Order To Seize) under the Coroners Act is one example.

To document the client’s consent to the “as required by law” exception to the duty of confidentiality, a counsellor should have a client signed a consent form that documented that agreement. Such a signed consent form should then provide the counsellor with sufficient protection should the deceased client's estate later sue the counsellor for breach of the duty of confidentiality by disclosing confidential information to the coroner.

To ensure that the exception is sufficiently broad to cover coroner’s orders, I would suggest the wording of this exception should be something like the following: “I may be required to disclose your confidential information if that disclosure is for the purpose of complying with a subpoena, warrant or order issued or made by a court, person or body with jurisdiction to compel the production of personal information, or the disclosure is otherwise required or authorized by law.”

If a client has signed a consent form that recognized that the counsellor might be required by law to make disclosures, then the counsellor should respond positively to the coroner's order for release of information without fear of later legal action from the estate. More importantly, the counsellor can provide the ordered information without the need to ask for the estate’s consent or to raise the claim of privilege. This is because the client would have agreed when he or she was alive to allow for the release confidential information to an appropriate legal authority, even if that request was not made [by the estate until] after the client’s death. It is the coroner’s common practice to issue an order for release of information, therefore a counsellor should ask for such an order if one is not provided automatically.

NEW PIPA AUTORITY

There appears to be new legislative provisions that a counsellor could also rely on when faced with a coroner’s order for release of confidential client information during an investigation. These provisions may be helpful if the counsellor did not obtaine the now deceased client’s fully informed consent.

Section 18(1)(a) of the new Personal Information Protection Act allows a counsellor to disclose otherwise confidential personal information about a now deceased client without the consent of the estate if that disclosure would be in the interest of the client and consent cannot be obtained in a timely fashion. If the coroner is investigating the circumstances of a client’s death, then arguable that process is in the client’s interest even if the client is no longer alive.

Section 18(1)(c) of PIPA also allows counsellor to disclose personal client information without the consent of the estate if trying first to obtain that consent could compromise an investigation by the coroner and the requested disclosure is related to a coroner’s investigation. Depending on the circumstances, a counsellor could rely on this provision to defend a decision to respond positively to a request for information from a coroner.

Finally and perhaps most importantly, section 18(1)(i) of PIPA authorizes a counsellor to make a disclosure if that disclosure is required for the purposes of complying with an order issued by an authority with the jurisdiction to compel the production of personal information (which the Coroner has under the Coroners Act). In a similar fashion, section 18(1)(o) says a counsellor may disclose client information if that disclosure is required or authorized by law.

In summary, if the coroner issues an order to a counsellor for disclosure of confidential client information during an investigation under the Coroner’s Act, that order should fall within any one of the four “authorized disclosures without consent” provisions of PIPA. Therefore, even if the counsellor did not obtain the client’s agreement at the start of counselling that the counsellor may be required by law to disclose otherwise confidential information, the new PIPA appears to provide counsellors with some back-up protection.

CONCLUDING COMMENTS

This article reveals the importance counsellors should place in obtained the full and informed consent of their clients at the start of counselling therapy. The process of obtained informed consent should include discussions on the possible duty the counsellor may later face to disclose otherwise confidential information to authorities authorized under law, such as to the coroner during an investigation or inquest. And, of course, that consent should be documented in an appropriately worded consent to treatment form.

The BCACC Board will be considering a revised practice standard for obtaining client consent to clinical counselling services, which will include model language for a consent form. Counsellors should visit the Association’s website to read this new standard.

¹ In this article I will refer to the coroner, but that reference should also be viewed as including a coroner’s investigator, unless the context otherwise requires.
² At common law, a counsellor’s duty of confidentiality to a client survives the death of that client. Indeed, that duty can be enforced or waived by the client’s estate on behalf of the deceased client. Therefore, after a client has died, a counsellor cannot disclose information obtained from the client while the client was alive, with two exceptions. First, the counsellor could release the information with the approval or consent of the client’s estate. Second, a counsellor may be required by law to make an ordered disclosure, whether or not the estate objects to that release.
³ The Act also specifies the specific circumstances of certain types of death when an inquest must be held without a preliminary investigation.
⁴ If a counsellor believes that his or her interests may be adversely affected by evidence likely to be adduced at an inquest, the counsellor has the right under section 36 of the Act to also call evidence, cross-examine witnesses and be represented by legal counsel.
⁵ The Wigmore Test has been recognized by the Supreme Court of Canada in Slavutych v. Baker, [1976] 1 S.C.R. 254 (SCC) and has thus been applied by many courts and tribunals since that time in assessing the merits of a claim of privilege; see for example Pacific Press Ltd. v. Cain [1997] B.C.J. N0. 1061), (1997) 147 D.L.R. (4th) 339, (1997) 35 B.C.L.R. (3d) 350, (1997) 47 Admin. L.R. (2d) 128 (BCSC).
⁶ The narrow scope of the privilege granted under clause 41(2)(a) of the Coroners Act can be contrasted to the much broader privilege granted under the Canadian Transportation Accident Investigation and Safety Board Act, R.S.C. 1989, c. 3; see Canadian National Railway Co. v. Canada, [2002] B.C.J. No. 2519, 2002 BCSC 1562, (2002) 8 B.C.L.R. (4th) 316 (BCSC).