The Canadian Supreme Court overwhelmingly decided last November that a patient’s right to privacy is just as important as the accused’s right to a fair trial in sexual assault cases. The 7-to-2 ruling upheld a 1997 law that requires trial judges to decide whether a request to examine the plaintiff’s or defendant’s psychiatric records is relevant to the case.

The Canadian Psychiatric Association (CPA) applauded the Supreme Court decision for recognizing that patients expect their therapy records to remain private and that confidentiality is essential to the therapeutic relationship, according to Philip Beck, M.D., chair of the CPA’s Professional Standards and Practice Standing Committee, in a written statement.

Beck collaborated on the CPA testimony presented to the Supreme Court in oral arguments and as a brief in January 2000 in the case of R v. Mills. The plaintiff, R, a minor, alleged that Mills sexually assaulted her in 1995 when she was 12.

Graham Glancy, M.D., a board member and past-president of the Canadian Academy of Psychiatry and the Law (CAPL), also collaborated on the testimony. He told Psychiatric News, "We tried to impress upon the judges the importance of psychiatric records to the therapeutic relationship."

The CPA also supported the 1997 law (C-46) that the Supreme Court upheld because it afforded psychiatric records greater protection than a 1995 Supreme Court decision (R v. O’Connor). "Attorneys no longer can see a patient’s psychiatric records just by saying they are likely to be relevant to the case," said Glancy. Now, they must meet certain criteria for relevancy, and a trial judge weighs the request against the patient’s privacy, added Glancy.

The purpose of the 1997 law is to protect the therapy records of sexual assault victims or witnesses from being routinely disclosed in court based on frivolous or speculative claims, said Glancy. Sexual assault victims’ advocacy groups that supported the 1997 law had reported that the broad O’Connor standard was deterring victims and witnesses from filing complaints or seeking treatment, according to an article in the 1998 CPA News Bulletin.

Indeed, Mill’s attorney obtained R’s records from a counseling agency prior to 1997 by simply arguing they were necessary for Mills to receive a fair trial, according to a history of the case.

Shortly after the law was passed, the case took an interesting turn. When the defense tried to obtain R’s therapy records from a psychiatrist and a child and adolescent services association, the judge said they had to show relevancy first, explained Glancy. The defense argued that it could not show relevancy without looking at R’s records. The judge agreed and struck down the law as unconstitutional, according to Glancy. The prosecution then appealed the judge’s decision to the Canadian Supreme Court.

The CPA took a unique approach to the case by not supporting the defendant or the plaintiff but focusing instead on the importance of confidentiality. Glancy explained that psychiatrists treat perpetrators as well as victims and that it is important to protect all patients’ psychiatric records.

"Although the law was aimed at protecting therapy records sought by defense counsel, it was applied recently to the prosecution seeking the defendant’s psychiatric records in an ongoing murder and rape trial (Regina v McDonald). The Crown had to prove relevancy to the case and the judge denied their request," said Glancy.

The CPA also recognized in its testimony that the individual’s right to confidential psychiatric records may be superceded by the interests of justice. For example, a person accused of assaulting or harassing someone may not be able to prove that the plaintiff has a delusional disorder without examining the individual’s psychiatric records, said Glancy.

The CPA was among 18 third parties allowed to present testimony to the Supreme Court when it heard the case. The others included the Canadian Mental Health Association, the federal government, most provinces, and representatives of sexual assault victims and defense lawyers.