Professional Secrecy

Disclosing Information to Third Persons: Medical Certificates

Under review

Ms. Louise L., a young lawyer, works in a prestigious law firm in Montreal. In less than 21 months, she has accumulated an impressive number of work hours, refusing holidays and vacations, so great is the pressure to win a permanent position. You quickly recognize that she is suffering from burnout. Since she fears being fired, Ms. Louise L. asks you to say nothing about the burnout diagnosis and gives you a form to complete so that the insurer will agree to pay salary compensation.
What do you do?

While the physician must respect professional secrecy, in the interests of the patient, the physician must also respect his or her own integrity, in keeping with sections 84 and 85 of the Code of Ethics of Physicians:

“A physician must refrain from entering,  producing or using data that he knows to be erroneous in any document, particularly in any report, medical record, or research record.”
(sec. 84).

“A physician must refrain from issuing to any person or for any reason whatsoever a false certificate or any information, either verbal or written, which he knows to be erroneous.”
(sec. 85).

While the general principle that a patient’s state of health is an integral part of her private life still holds, a patient who requests a medical certificate attesting to her state of health implicitly consents to the disclosure of pertinent confidential information concerning her. She may not invoke her right to confidentiality so as to oblige the physician to conceal, for example, the reason for a work leave, or its duration, from those who employ her and with whom she has taken a job.

On the other hand, the employer who asks  for a medical certificate (attesting to absence) must be able to demonstrate that the information is necessary to execute the work contract. More precisely, he must demonstrate that the legitimate interests of the enterprise take precedence over the rights granted to persons by the Quebec Charter of Human Rights and Freedoms, in cases of frequent absenteeism or for a long-term absence, for instance. But when the employer acts as insurer, he has a right to demand all the pertinent information he needs to determine whether or not to compensate his employee for her absence. In fact, if the employee’s work stoppage follows a work accident, the employer will receive a copy of the medical certificates related to the accident, in accordance with the laws and regulations governing the Commission de la santé et de la sécurité du travail (CSST).

A medical certificate must therefore attest to the state of health of the patient and contain pertinent information only. It must indicate the date on which the disability began and, if possible, the date on which it  will end, as well as the nature of the disability. The diagnosis justifying the inability to work must be included, provided the disclosure of the information is authorized by the patient and is necessary for the employer’s execution of the work contract or pertinent to the insurer.

Whether the information is disclosed to family members or in the context of a medical certificate, one must keep  in mind that “active listening” and dialogue will help the physician and patient maintain a professional relationship that considers their respective points of view. The physician must avoid the “compliant certificate” pitfall. Rather, it is up to the patient to use the means at her disposal in this process. If necessary, the physician can testify as the attending physician (not as an expert).

You reassure Ms. Louise L. and clarify with her the request to the insurer. You agree to complete the form, but in a discreet, albeit frank, way. The patient accepts this option.

Thanks to your treatments, Ms. Louise L. recovers her health and gradually returns to work. The first weeks of reintegration go well, allowing Ms. Louise L. to quickly return to full-time work. She receives a favorable appraisal confirming that she has recovered all of her capacities. You think she has made a good recovery.