GARDNER v. RUSCH – CASE COMMENTARY
"PROTECTING COUNSELLOR-CLIENT CONFIDENTIALITY"

By George K. Bryce
legal counsel for the BC Association of Clinical Counsellors
Published in Vol 11:3 of Insights (Winter 2000)

On July 27, 1999, the Hon. Madam Justice Beames handed down her reasons for judgment in a chambers application in the civil action of Gardner et al v. Rusch et al. Judge Beames' decision is a landmark Canadian case which protects the confidentiality of communications between a counsellor and a client. In this article, I will summarize the history of the civil action and discuss Judge Beames' reasons. As the name of the counsellor involved in this case is not relevant for the purposes of this summary, I will refer to him as "RF".

RF is registered clinical counsellor and member of the BCACC. In the early 1990s, RF provided counselling services to an adult female with the initials JC. During their sessions, JC disclosed to RF that, as a child, she had been sexually abused by a member of her family and in turn that others in her family had been abused by or had themselves abused other members of her family. JC later reported these allegations to the police. At no time were the members of JC's family involved in her therapy sessions with RF.

The police undertook a criminal investigation of JC's allegations, which extended over the course of five years. For reasons that need not be detailed here, criminal charges were never filed against the members of JC's family.

When the investigation ended, the members of JC's family who had been accused initiated a law suit against the police and RF. They did not involve JC in their legal action; their focus was on her counsellor and the police. Under the professional liability insurance plan the BCACC has established for its members, legal counsel was provided to RF to defend him against these claims.

The family's statement of claim argued that RF owed them a fiduciary duty and a duty of care. The specific elements of their claim can be summarized as:

• that repressed memory is a questionable theory and practice;
• that RF should have questioned and sought out independent confirmation of JC's repressed memories of abuse (by talking to the accused family members);
• that RF should have known that JC's allegations would cause severe damage to her family and their health and well-being.

RF's lawyer initiated a chambers application to strike-out the family's claim against the counsellor. The basis of this application was that Canadian law does not recognize that counsellors owe any duty of care to third parties who clients may have been accused of sexually abusing them.

RF's lawyer also contacted the BCACC, inviting the Association to intervene in the chambers application in support of RF's position. Through my office, the Association retained senior counsel to consider this option. After considering the legal issues and factual constraints, the Association's legal team recommended against an intervention during the chambers application. Instead, the Associations lawyers provided logistic and legal research support to RF's lawyer "behind the scenes".

The chambers application was heard before Judge Beames and, as noted above, she handed down her decision at the end of July. In brief, Judge Beames granted the application to strike-out the claim against RF. This has the effect of removing RF from the family's law suit. The police remain as defendants in this action.

I believe that Judge Beames' ruling is a landmark decision because, as best as I could ascertain, there have been no reported Canadian cases where our courts have found that a counsellor owes a duty of care to the parents or family of a client who is expressing memories of childhood sexual abuse at the hands of those family members. This may become the first reported case on this legal issue in Canadian jurisprudence.

It is useful to review Judge Beames' judgment in some detail. As I have noted above, the plaintiffs' had framed their action against RF on two grounds:

1. that RF breached a fiduciary duty to them;
2. that RF owed a duty of care to the plaintiff's and negligently breached that duty.

Judge Beames had little problem in dismissing the plaintiffs' claim of a fiduciary duty. In fact, she spent no more than one paragraph to strike out that claim and, in doing so, she undertook no legal analysis and presented no detailed reasons. That is not surprising, however, because it is difficult to conceive of the existence of a fiduciary duty when there is no relationship between the parties upon which such a duty of trust could be framed. As Judge Beames notes in her decision, JC was RF's client; the parents and the rest of the family were never his clients. Therefore, RF's primary and only fiduciary duty was to JC exclusively.

The second ground of the plaintiff's claim required Judge Beames to consider the American jurisprudence that has evolved on the issue of so called repressed memory syndrome. There have been a few Canadian cases which have considered related situations. In striking out this basis of the claim, Judge Beames observed that, if it could be said as a matter of law that RF owned a duty of care to the plaintiff family in these circumstances, such a conclusion would put RF in a direct conflict with the primary duty that he owes to his client, JC. This observation became the major theme throughout her reasons.

In considering the anatomy of the duty of care claimed by the plaintiffs, Judge Beames applied the general principles of tort law, such as foreseability and the relationship between the parties. She also considered the societal interest that need to be protected, and the policy issues raised by the plaintiffs' claim.

Judge Beames noted that it is in society's interest to prevent persons being falsely accused of child abuse, but pointed out that it was not possible for her to ascertain whether JC was or was not experiencing false memories. As Judge Beames stated, however, it was not necessary for her to make any findings on this point. The only question before her was whether, as a matter of law, RF owed a duty of care to JC's family arising from her disclosures of childhood sexual abuse.

Judge Beames went on to explain why, as a matter of policy, a counsellor should not be burdened with a duty of care owed to third parties who may be falsely accused of abuse by a client. In doing so, Judge Beames quotes with approval from Professor Bala's article "False Memory 'Syndrome' : Backlash or Bona Fide Defence?". In that paper, Professor Bala reviews the change that has taken place in society's views of and responses to child sexual abuse since the 19th century.

Judge Beames also refers to a number of American cases where the courts have recognized that, if a counsellor owed a duty of care to accused third parties, that duty would conflict with the counsellor's primary duty to the client. These cases explain that to recognize a duty of care in such circumstances would detract from or restrict the counselling services that need to be provided; such a duty would become a powerful disincentive to the detection and treatment of sexual abuse. Judge Beames again notes that imposing a duty on a counsellor would inevitably lead to a breach of the duty of confidentiality upon which the trust between a counsellor and client is based. Such a duty is central to professional codes of ethics. Breaching the duty of confidentiality would most likely harm the client.

Judge Beames also dealt with the plaintiffs' claim that RF should have obtained independent corroboration of FC's statement (at page 11):

In my view, it is clearly not the role of a counsellor to seek independent corroboration of statements made by his or her patient. There is no doubt that if this is part of the duty of care which should be imposed upon [RF], he would be forced into a position where he would be breaching his duty to his patient by breaching confidentiality.

Judge Beames began her review of the Canadian and American cases that were submitted by the plaintiffs' lawyer by observing: "for a court to find the potential for a duty of care owed by a therapist to a third party, the circumstances must offer an extremely compelling reasons for doing so." Examples of situations when a duty of care may arise would be when, if reporting an instance of alleged abuse of a child, a therapist acted in bad faith or maliciously, or knowingly gave false information to the authorities. Or if a therapist actively made public false accusations of sexual abuse against the alleged perpetrator.

The plaintiffs' lawyer has filed a notice to appeal Judge Beames' decision. This may be no more than a technicality, because an appeal must be initiated within 30 days of the decision. It remains to be seen whether the plaintiffs will keep their appeal alive and, in particular, what errors of law they will claim Judge Beames made. As of the date of this writing, I have received no information that further steps have been taken on this appeal.

Should the appeal proceed, the BCACC has instructed its legal team that the Association wishes to intervene at the appeal hearing. While this intervention would support RF, the Association would be speaking on behalf of all clinical counsellors to uphold Judge Beames' decision and reasons.