Previously, I blogged about per se fiduciary relationships and ad hoc fiduciary relationships in Barker v. Barker, 2022 ONCA 567. Barker is a case involving 28 claimants who were patients of a maximum-security Oak Ridge Division of the Mental Health Centre in Penetanguishene (“Oak Ridge”) between 1966 and 1983. The defendants were the Province of Ontario (the “Province”), because the Province is ultimately responsible for administering Oak Ridge, and two doctors who were the Clinical Directors of Oak Ridge during the 1960’s and the 1970’s (the “Physicians”).
The Court of Appeal in Barker affirmed the trial judge’s finding that the Physicians were categorically, per se fiduciaries because “the physician-patient relationship has long been considered to be a fiduciary one”. The relationship between doctor and patient is one of “trust and confidence” to which the principles applicable to cases of breach of a confidential or fiduciary duty extend (para. 104).
While a fixed set of rules and principles may not apply in all circumstances of every doctor-patient relationship, the Court of Appeal continues to rely on the Supreme Court of Canada’s comment in McInerney v. MacDonald, [1992] 2 S.C.R. 138, that certain duties are always present from the special relationship of trust and confidence between doctors and their patients and they are the duty of the doctor to act with utmost good faith and loyalty, and to hold information received from or about a patient in confidence (para. 105).
In Barker, the panel rejected the Physicians’ argument that they are not fiduciaries as doctors who were employed by the Province to work in a maximum-security psychiatric facility. As you will have read from my previous blog, the duty of the psychiatric facility (as imposed by the Mental Health Act) was the observation, care and treatments of patients suffering from mental disorders. This duty was obviously meant to be implemented by the Physicians as the Clinical Directors of Oak Ridge.
Here the Physicians were found to be in breach of their fiduciary duty to the patients even though they were not found to have acted with intentions that were as bad as the program themselves, nor were they found to have benefited from Oak Ridges’ programs:
“the fiduciary obligation protects interests at the core of the doctor-patient relationship. A commitment to the best interests of the patient may be violated by causing, or exposing the patient to, harm without any basis to expect a benefit from the harmful treatment, depending on the circumstances.
As the Physicians point out, the fact that harm results from a medical procedure or treatment cannot on its own indicate that the doctor has breached a fiduciary obligation. Many procedures are painful and involve risks of bad consequences, and those risks are sometimes realized while hoped for benefits from the treatment or procedure are not. The fiduciary obligation is not a guarantee of no harm or of successful outcomes.
What the fiduciary obligation does require is that treatment be undertaken with a view to the best interests of the patient. On the facts found by the trial judge, this was not a case of treatments that were undertaken with that view. This was not a cost-benefit analysis that went wrong. Nor did it involve an informed choice by a patient to accept the risk of harm for an uncertain benefit. What the trial judge found was that the treatments had a known certainty of harm to the respondents, and of exposure of them to likely abuse, with no reasonable basis for a belief that any benefit would be achieved, nor informed consent to that harmful mixture. The trial judge was entitled to find that a breach of fiduciary duty had occurred.”
Thanks for reading!