British Columbia Medical Journal, January/February 2010 issue Please download or visit this entire issue online at http://bcmj.org/january-february-2010

1. Derryck H. Smith, MD, FRCPC
Swirski-type interviews:
An ethical dilemma for
physicians
The doctor-patient relationship may be jeopardized if physicians
do not inform patients before speaking to a third party.
s Swirski was injured in a allowed for informal discussions
M
ABSTRACT: In 1995 the Supreme
Court of British Columbia ruled that motor vehicle accident and between defence counsel and the
the treating physicians for a plaintiff subsequently developed epi- plaintiff’s treating physicians if the
were free to take part in discus- leptic seizures. She was assessed by physicians were willing to participate.
sions with counsel for the defence. four neurologists who opined that the More recently, in MacEachern v.
Recently, another case confirmed seizures resulted from a brain injury. Rennie, Mr Justice Ehrcke affirmed
that physicians may take part in such After a period of time, some of the the application of the Swirski deci-
discussions without obtaining their neurologists changed their opinion sion.2 In this particular case, a physi-
patients’ permission. While confi- and were of the view that the seizures cian (Dr D.) was treating the plaintiff,
dentiality between doctors and pa- were the result of a conversion disor- Ms MacEachern. Her lawyer took the
tients may not be recognized in law, der, a psychiatric condition arising position that as a treating physician,
physicians are responsible for main- from the accident. Ms Swirski’s Dr D. owed Ms MacEachern a duty of
taining the trust inherent in the lawyers did not rely on the reports of confidentiality not to divulge her per-
doctor-patient relationship. This the neurologists or put them forward sonal information without her con-
may require that physicians careful- to the court as experts. Instead, they sent. In fact, Dr D. met with defence
ly consider whether to take part gave notice of their intention to call counsel even after receiving a letter
in such third-party discussions and Ms Swirski’s family doctor as an from Ms MacEachern’s lawyers
that they inform patients in writing expert witness at trial. Counsel for advising that their client did not wish
when they decide to do so. the defence wished to interview the the meeting to proceed if they were
four neurologists and the matter was not present. Her lawyers were of the
placed before the court in Swirski v. opinion that Dr D. breached his duty
Hachey.1 of confidentiality to his patient when
Mr Justice Wilkinson of the British he spoke with counsel for the defen-
Columbia Supreme Court held that the dants in their absence.
defendant’s counsel was at liberty to
discuss medical matters with Ms
Swirski’s treating physicians in the Dr Smith is a clinical professor in the
absence of Ms Swirski and her coun- Department of Psychiatry at the University
sel. This ruling did not compel Ms of British Columbia. He is currently presi-
Swirski’s treating physicians to take dent of the Medical Legal Society of British
part in such discussions, but allowed Columbia, but in this article he is not speak-
them to participate in such a meeting ing on behalf of the society or any other
subject to conditions set by them. In organization. This article represents his per-
other words, the Swirski decision sonal opinion.
32 BC MEDICAL JOURNAL VOL. 52 NO. 1, JANUARY/FEBRUARY 2010 www.bcmj.org

2. Swirski-type interviews: An ethical dilemma for physicians
Mr Justice Ehrcke ruled other- should only engage in a medicolegal 31. Protect the personal health
wise: “I have found that there was no interview with signed permission from information of your patients.
impropriety in the meeting between their patients. If I am aware my patient 35. Disclose your patients’ per-
Dr D. and counsel for the defendants.” is represented by counsel, I would sonal health information to third
strongly urge the patient to discuss this parties only with their consent, or
Confidentiality concerns entire matter with his or her legal as provided for by law… In such
In the first instance, it must be noted counsel or would request permission cases take all reasonable steps to
that when our patients commence legal to contact the patient’s lawyer myself. inform the patients that the usual
actions, the courts recognize no right requirements for confidentiality
to confidentiality or privilege over rel- will be breached.
evant medical records, particularly 36. When acting on behalf of a
when there is an issue of injury or ill- third party, take reasonable steps
ness before the courts. Many patients to ensure that the patient under-
and doctors believe that their records stands the nature and extent of your
are private and confidential. This is responsibility to the third party.
not the case in law. Many patients It is my opinion that since Swirski
In the Swirski decision, the court and doctors allows, but does not compel, inter-
held that it is proper for defence coun- views with third parties (defence coun-
believe that their
sel to contact the plaintiff’s treating sel), that section 35 would ethically
physicians and to invite them to an records are private compel a physician to seek the con-
interview. However, the court has not and confidential. sent of the patient before proceeding
provided guidance for the physicians with a Swirski-type interview.
This is not the
in terms of protecting the doctor-patient
relationship or obtaining consent from case in law. Position of the College of
the patient for such a meeting. Physicians and Surgeons
In the past, doctors approached by of British Columbia
defence lawyers for a Swirski-type The College notes in its Resource Man-
interview have agreed to these for sev- ual, under “Requests from Defence
eral reasons, including the following: Lawyers,” that “when a person puts
• They have misread the Swirski deci- his or her health in issue in litigation,
sion and believe they are compelled I recognize that these interviews there is an implied waiver of confi-
to attend such an interview. may prove useful for all parties in- dentiality with respect to all relevant
• They believe that by attending such volved, by getting factual material information pertaining to the matters
an interview they will avoid a sub- before the courts, but I would only in issue in the lawsuit.”3 The manual
poena and court appearance later. agree to participate in such an inter- goes on to say that some medical treat-
• They know they may be able to bill view in the presence of my patient and ments may be totally irrelevant and
medicolegal rates for such a meet- his or her legal counsel. that the issue of relevance is one for
ing and are responding to this finan- There may be some cases in which the lawyers in the action to determine.
cial incentive. the physician should engage separate This issue “should be resolved prior to
In my opinion, the above-noted legal counsel to represent him or her the physician being involved in any
court decisions may jeopardize the and arrange to have fees for such interviews with defence counsel.” The
relationship between doctors and pa- counsel covered by the other parties. College’s view is that the onus is on
tients. I would never consider talking Doctors are well advised to seek the plaintiff’s counsel to obtain agree-
to any third party concerning details advice from CMPA. ment from defence counsel regarding
of my patient’s medical file without the conditions for a Swirski-type
his or her permission. The Swirski- CMA Code of Ethics interview or to apply to court for
type interview strikes me as being no Under the heading “Privacy and Con- restrictions to be placed upon the
different. Even though in Swirski the fidentiality,” three relevant sections interview. They conclude, “This court
court allowed such discussions to take of the CMA Code of Ethics read as decision states that treating physicians
place, it is my opinion that doctors follows: are like any other witnesses and can
www.bcmj.org VOL. 52 NO. 1, JANUARY/FEBRUARY 2010 BC MEDICAL JOURNAL 33

3. Swirski-type interviews: An ethical dilemma for physicians
If patients become aware that treating counsel to represent your interests
in such an interview.
physicians will be meeting with defence I offer these recommendations in
counsel and giving potentially damaging order to protect our patients’ confi-
dentiality in the face of a legal deci-
expert opinion that will undermine or sion that in my view does not fully
compromise their legal case, they will address the nature of the doctor-
patient relationship. It is all well and
rightly lose confidence in the doctor- good for courts to establish rules on
patient relationship. matters that are before them, but it is
up to physicians to be primarily con-
cerned with the doctor-patient rela-
tionship.
Competing interests
be interviewed by defence counsel patient relationship. I understand that None declared.
without the consent of patients.” confidentiality between doctors and
In a 1996 comment on the Swirski patients is not recognized in law, but it References
decision in the College Quarterly, the is my view that we have a higher duty 1. Swirski v. Hachey (1995), Supreme Court
College suggests that if you refuse to to our patients than that which is of British Columbia. Vancouver Registry
take part in a medicolegal interview, “allowed” by a court ruling. We have No. B940415. www.courts.gov.bc.ca/
your patient’s lawyer can ask you a a duty to be advocates and champions jdb-txt/sc/95/18/s95-1808.htm
series of questions in a letter. If the for our patients. With this in mind, I (accessed 6 November 2009).
responses are deemed adequate, that suggest the following: 2. MacEachern v. Rennie (2009), BCSC
may eliminate the need to have a for- • If you are approached by defence 252. www.courts.gov.bc.ca/jdb-txt/SC/
mal interview; however, if the defence counsel about medical matters con- 09/06/2009BCSC0652.htm (accessed 6
lawyer is unhappy with the responses, cerning your patient, you should not November 2009).
he or she may apply to the court for feel obligated to meet with them as 3. College of Physicians and Surgeons of
the right to interview you.4 a treating physician, although you British Columbia. Resource manual.
In July 2009, I wrote to the Col- may choose to do so. 1997. www.cpsbc.ca/files/u6/Requests-
lege regarding MacEachern v. Rennie • Before proceeding with any such from-Defence-Lawyers.pdf (accessed 6
and they reaffirmed their position as meeting or discussion, you should November 2009).
described in the Resource Manual and obtain written permission from your 4. Swirski v. Hachey. College Quarterly
College Quarterly. patient and may wish to discuss this 1996;13:6. www.cpsbc.ca/files/u6/1996-
matter with your patient’s legal summer.pdf (accessed 6 November
Protecting the doctor- counsel. I would only agree to such 2009).
patient relationship a meeting with defence counsel if
It is my view that although the Swirs- the patient or the patient’s legal
ki decision allows for interviews counsel were present at the meeting.
between defence counsel and a plain- • You may wish to consider whether
tiff’s treating physicians, it is contrary you will answer questions that go
to the CMA Code of Ethics to proceed beyond the scope of care you pro-
with such an interview without a pa- vided to your patient, particularly if
tient’s written permission. If patients your answers may be detrimental to
become aware that treating physicians your patient.
will be meeting with defence counsel • Although I have never taken this
and giving potentially damaging step, if you are concerned about your
expert opinion that will undermine or legal rights, as distinct from issues
compromise their legal case, they will concerning your patient, you may
rightly lose confidence in the doctor- wish to call CMPA or engage legal
34 BC MEDICAL JOURNAL VOL. 52 NO. 1, JANUARY/FEBRUARY 2010 www.bcmj.org