The Ottawa Citizen published an article today called “Lessons to learn” on the student-university duty of care as a follow-up to the Nadia Kajouji suicide at Carleton University. Pauline Tam does a very good job of going deep into some of the complexities, and even received some input from American expert Peter Lake. I’m also quoted on the duty of care issue and the limits of privacy law.
As Anne Cavoukian has recently written in response to some commentary on the Carleton suicide, privacy law is not absolute. From how I was quoted it’s not exactly clear what the precise standard for disclosure is and, in fact, there are two standards for “health and safety” disclosures under Ontario law. Under FIPPA – which governs personal information a university or college manages in its ordinary administration – there is a “compelling circumstances” standard. Under PHIPA – which governs health care relationships, including health care services provided by universities and colleges – the standard is higher, essentially a “serious and imminent” harm standard.
One of the things that has been lost in some of the recent commentary is that there are two different standards, the latter standard creating a special and important “zone of privacy” within which a health care relationship is situated. There’s very good reason for this. After all, we want students at risk and others who need care to seek treatment, and a strong guarantee of confidentiality is a necessary, indeed fundamental, part of making treatment accessible. Outside of health care (think of information known by a residence don, faculty members or members of the administration) the standard for disclosing information to prevent harm should be taken seriously, but is lower and should be lower.
I’ve spoken and written recently about the need for objective threat assessment procedures to balance the duty to provide a safe campus environment against the duty to protect individual privacy. For more on my view see this post here and its attachments.