Privacy and human dignity are fundamental values of our society, and it is these values that are the basis of the existence of professional secrecy. In order to build a relationship of trust with his clients, and for them to provide him with all the information necessary to provide the requested help, the professional cannot disclose the confidential information entrusted to him, it is professional secrecy.
Professional secrecy is a right guaranteed by the Quebec Charter of Human Rights and Freedoms, and therefore benefits from quasi-constitutional protection. In addition, the Tribunal is required to reject any evidence obtained in breach of solicitor-client privilege. This obligation of confidentiality continues at the end of the professional relationship, and even after the death of the client.
Living conditions
In order to be able to benefit from the protection of professional secrecy, three cumulative conditions must be met.
- The person consulted must be bound by professional secrecy: any person who is a member of one of the forty-six professional orders existing in Québec is bound by professional secrecy. Moreover, this obligation also applies to priests and ministers of religion.
- It must be information disclosed by the client, which must be of a confidential nature: this means that the information relates to the client’s own privacy. These can be assessments, medical diagnoses, interview notes, legal opinions, or even just the client’s identity. This information must have been shared with the intention that it be kept secret.
- The communication must take place within the framework of a professional relationship.
This means that the disclosing client is seeking the professional’s assistance, expertise or services, i.e., disclosing it in the course of performing their duties.
Exceptions and limitations
However, professional secrecy is not absolute, and there are limits to it. There are three situations leading to the lifting of professional secrecy: when the client authorises it, when the law requires it or when the law expressly authorises it.
Disclosure authorized by the client
Professional secrecy is a right belonging to the client, so it is possible for the client to waive it, in whole or in part, in order to allow the disclosure of information of a confidential nature. The waiver can be:
- Explicit, i.e. the client formally authorizes it;
- Implicit, i.e. it is deduced from the customer’s gestures and actions.
For example, a client who is accompanied by a loved one to a professional appointment implicitly accepts that the latter has access to the confidential information that will be disclosed during the meeting. Regardless of whether the waiver is express or implied, it is not presumed and must be voluntary, clear, and unambiguous. A person who waives his or her right to professional secrecy must be aware of the existence of the right to professional secrecy. In addition, the professional will be required to comply with the conditions of renunciation desired by the client.
Disclosure required by law
In some cases, the law provides for an obligation for the professional to disclose certain confidential information without obtaining the client’s consent. Here are some situations where the professional will be forced to override professional secrecy:
- An investigation conducted by the syndic of a professional order: the syndic of a professional order may, as part of his investigation, have access to any information contained in a client’s file kept by a member of his professional order. The professional will not be able to invoke professional secrecy against his own syndic, and will be obliged to provide him with any relevant document or information (see the syndic’s power of investigation module).
- A situation where a child is in danger: The Youth Protection Act provides that if the professional has reasonable grounds to believe that the safety or development of a child is or may be considered to be compromised, he or she must report the situation to the Director of Youth Protection. This will be the case if, for example, the professional notices that the child’s parents are physically or psychologically abusing the child, or neglecting the child. In these cases, the best interests of the child will take precedence over professional secrecy.
- A situation of mistreatment of seniors or other persons considered vulnerable by law: in accordance with the Act to combat mistreatment of seniors and other persons of full age in vulnerable situations, a professional who has reason to believe that an older or incapacitated person is a victim of mistreatment must report it to the competent person.
Disclosure authorized by law
In certain situations, the law allows the professional to override the privilege to disclose a situation that poses a significant risk to the public or to the client himself. It will be up to the professional, in his or her good judgment, to decide whether or not to derogate from his or her obligation.
The professional may therefore derogate from his obligation to respect professional secrecy to prevent an act of violence if, in his opinion, there is a serious risk of death or serious injury to the client, a person or a group of persons. For example, a professional who fears that a suicidal client will act out, or that another client will immediately commit violence against another person, will be justified in reporting it.
However, the disclosure of this information, although it may be done without the client’s consent, must be done sparingly and restrictively: the professional may communicate only the information necessary for the prevention of the act to the persons concerned, their representatives and those whom he deems capable of assisting them, such as the police authorities.
Sanctions
When the professional reveals confidential information without legal authorization or without the consent of the client, he is in breach of professional secrecy. This results in penalties, including:
- Disciplinary sanctions: the violation of professional secrecy constitutes an ethical breach, and the syndic of the order could file a complaint against the professional. The latter could receive a warning, a fine, or a disbarment.
- Civil penalties: If a prejudice is suffered by the client, there may be civil lawsuits before the courts in order to be compensated.
Disciplinary complaint
At Lambert Avocats, we understand the complexity surrounding professional secrecy and its limitations. Whether you are facing issues related to its disclosure, a disciplinary complaint or legal concerns, our disciplinary lawyers can guide you with expertise.
Protect your career and your customers’ trust. Contact us today for a consultation on any questions relating to professional secrecy.