In a recent decision, the Ontario Superior Court refused to order the production of an applicant’s psychiatric records when he challenged his father’s testamentary capacity. The respondent sought production of the records in order to demonstrate that the applicant had knowledge of the existence of the will in question and missed the limitation period for filing a claim.
In Kinnear v. Kinnear, the deceased testator, Russell Barr Kinnear (the “Deceased”), executed a will (the “Will) in August 2015 appointing his son, Christopher (the “Respondent”), as estate trustee and sole beneficiary of his estate and Christopher’s wife as his attorney for property and personal care. At the time of the Deceased’s death, the applicant’s brother, Russell (the “Applicant”), and his daughter had been living with the Deceased for several years and had been caring for the Deceased prior to his death.
The Respondent’s wife had arranged the Deceased’s consultation with a lawyer to prepare the will, drove the Deceased to the appointments with the lawyer and participated in the meeting in which the Deceased gave his instructions to the lawyer.
The Applicant challenged the will on the basis of undue influence and on the grounds that the Deceased lacked testamentary capacity when he made the will.
The Deceased had previously suffered a severe brain injury and in a report by a physician dated September 2015 the Deceased scored 13/30 on a mini-mental state examination and was determined incompetent to make financial decisions.
In June 2016, the Applicant wrote an email to the Respondent mentioning his psychiatrist’s name and claimed their father wanted to make changes regarding his will.
Respondent Sought Order for Production of Medical Records
The Respondent sought an order for production of the Applicant’s medical records and files in possession of his psychiatrist, arguing that the psychiatric records may include evidence that would support his position that the Applicant’s challenge to the will was statute-barred as it was filed beyond the applicable two-year limitation period, which started to run from the date of the Deceased’s death.
In cross-examining both the Applicant and his psychiatrists refused to answer questions about the email during the cross-examination stage. The psychiatrist signed Form 15 under the Mental Health Act, claiming that disclosing, transmitting, or examining the psychiatric records would likely harm the applicant’s treatment or recovery.
The Court considered whether the production of the Applicant’s psychiatric records should be made in the interests of justice. The Court noted that it is entitled to make an order for production for inspection of a document that is in the possession of a non-party and is not privileged, under if: a) the document is relevant to a material issue in the action; and b) it would be unfair to require the moving party to proceed to trial without having discovery of the document.
The Requirements to Support a Claim for Privilege
The Supreme Court of Canada has set out four necessary requirements to support a claim for privilege over communications between a patient and their psychiatrist:
- the communication at issue originated in a confidence that it would not be disclosed
- the element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties
- the relation must be one which in the opinion of the community ought to be sedulously fostered
- the interests served by protecting the communications from disclosure outweigh the interest of pursuing the truth and disposing correctly of the litigation
In considering the evidence of the psychiatrist, the Court found that the first three requirements were met. The psychiatrist “confirmed that confidentiality is the foundation of the relationship between a psychiatrist and his or her patient and must be fostered to create an environment in which proper diagnosis and proper treatment can occur.”
In considering the fourth requirement, the Court found that the Respondent did not produce any evidence to show that the Applicant’s psychiatric records include discussions pertaining to the Deceased and his estate planning generally, or the will specifically. The Respondent also failed to show that the psychiatric records were likely to include such information.
The Court found that the Respondents could obtain information in support of their alleged limitation period defence from other sources such as evidence of the drafting solicitor, their own email exchange with the Applicant and other evidence provided by the Applicant. Reliance on sources other than psychiatric records would protect the Applicant’s privacy responding to the confidential psychiatric records. It further noted that it would address the risks raised by the Applicant’s psychiatrist of the potential serious harm to Applicant’s mental health and future treatment, which could arise as a consequence of permitting the Respondent access to the psychiatric records.
Should the Applicant’s Privacy Be Protected?
In considering the evidence, the Court found the Applicant’s privacy interest to be compelling and found there to be persuasive reasons for protecting the psychiatric records in this case.
If production were ordered, others seeking psychiatric attention may feel less secure about whether their medical records would, in fact, be kept confidential. This insecurity could lead to less open communication with their mental health professionals and could prove detrimental to their treatment. Given the essential importance of confidentiality to the psychiatric relationship and the Applicant’s relationship with the psychiatrist that spanned more than 20 years, the Court denied the request to order production of the psychiatric records.
Most notably, the Court considered the future impact of ordering production of psychiatric records in cases such as these, stating:
“…an order for production in a case such as this could have an effect beyond this case. If production were ordered, others seeking psychiatric attention may feel less secure about whether their medical records would, in fact, be kept confidential. This insecurity could lead to less open communications with their mental health professionals and could prove detrimental to their treatment”
At Derfel Estate Law, our experienced team of estate lawyers are always up to date on estate litigation cases and can assist in contesting a will. Contact us by phone at 416-847-3580 or reach us online to discuss your estate needs.