McKee v Shahid: Duty of Care to Non-Patient Family Members in Psychiatric Negligence

The duty of care in medical malpractice typically runs between the physician and the patient. The patient receives the medical care; the physician owes the duty to provide that care to the appropriate professional standard; where the duty is breached and the patient is harmed, the patient has a cause of action. The framework is straightforward in the great majority of cases. The framework becomes more complex in psychiatric and other contexts where the consequences of inadequate care may fall not just on the patient but on third parties whose connection to the patient places them in the foreseeable zone of risk. The Canadian law on duty of care to non-patient third parties in psychiatric contexts has developed in pieces over the past three decades, but the framework is far from settled. McKee v Shahid is a recent appellate articulation of where the framework currently sits.

McKee v Shahid, 2025 ONCA 666, released by the Court of Appeal for Ontario on September 25, 2025, addresses a tragic underlying case. In February 2019, a 27-year-old man with a long history of serious addiction and mental health issues killed his father in a stabbing. The man’s mother (wife of the deceased) commenced a civil action against the psychiatric providers who had been treating her son, alleging that they had negligently discharged him from long-term psychiatric care when discharge was contraindicated, had failed to adequately assess the risk he posed, and had failed to warn her and her husband of that risk. The motion judge struck the negligence claim on the basis that any duty of care to the family members would conflict with the duty of care owed to the patient. The Court of Appeal allowed the appeal, finding that the conflict analysis was premature on the available record and that the claim should be permitted to proceed to a trial-level determination on a proper evidentiary record.

The case is doctrinally important for several reasons. It is one of the clearest recent appellate articulations of the framework for novel duty of care analysis in the Canadian medical malpractice context. It addresses the high threshold for a motion to strike and the framework for distinguishing pleadings that are doomed to fail from pleadings that raise genuinely difficult questions warranting trial-level determination. It engages the Canadian framework for duty of care to non-patient third parties (related to but distinct from the duty to warn articulated in Smith v Jones). And it adds an Ontario appellate authority to the limited body of Canadian case law on the interface between psychiatric malpractice and family members’ claims in the wake of catastrophic violent outcomes.

The legal framework — duty of care, novel categories, and the motion to strike

A brief overview of the legal framework is useful for the analysis.

The duty of care framework. Canadian negligence law requires the plaintiff to establish, among other elements, that the defendant owed them a duty of care. The framework for establishing duty of care proceeds along two paths:

• Established categories. Where the relationship between the parties falls within an established category previously recognized by Canadian courts (physician-patient; manufacturer-consumer; occupier-visitor; and so on), the duty of care is recognized without the need for further analysis. The framework permits straightforward analysis in the vast majority of cases.
• Novel categories. Where the relationship does not fall within an established category, the framework requires a structured analysis under the Anns/Cooper framework, modified by the Supreme Court of Canada in Cooper v Hobart, 2001 SCC 79. The analysis proceeds in two stages: (1) is there sufficient proximity between the parties and is the harm reasonably foreseeable to support a prima facie duty of care?; and (2) are there residual policy considerations that should negate or limit the prima facie duty?

The framework operates conservatively. Canadian courts do not lightly recognize new duties of care, particularly where the recognition could have far-reaching implications for the framework of liability in a particular field.

The duty to warn framework. Distinct from the duty of care in treatment, Canadian law recognizes that physicians (including psychiatrists) can have a duty to warn third parties of a serious threat posed by their patient. The framework derives from the foundational US decision in Tarasoff v Regents of the University of California, 17 Cal 3d 425 (1976). The Canadian framework was articulated by the Supreme Court of Canada in Smith v Jones, [1999] 1 SCR 455, in the criminal law context of solicitor-client privilege. The framework permits (and in some circumstances requires) the disclosure of confidential information where:

• A clear, serious, and imminent risk of harm exists
• The risk is to an identifiable person or group
• The disclosure is necessary to prevent the harm

The duty to warn is distinct from the duty of care in treatment. The duty to warn is about specific information disclosure where a serious threat exists. The duty of care in treatment is about the broader framework of professional standards in clinical practice.

The motion to strike framework. Where a defendant moves to strike a claim on the basis that it discloses no reasonable cause of action, the framework applies the test articulated in Hunt v Carey Canada Inc, [1990] 2 SCR 959 and reaffirmed in R v Imperial Tobacco Canada Ltd, 2011 SCC 42. The framework asks whether it is plain and obvious that the claim has no reasonable prospect of success. Where the answer is yes, the claim can be struck. Where the answer is no (or where the claim raises a genuinely difficult question that warrants further development on an evidentiary record), the framework requires the case to proceed.

The threshold is high. The framework is conservative because the motion to strike framework operates without the benefit of evidence (the facts pleaded in the statement of claim are typically taken as true for purposes of the motion). A motion to strike is not the appropriate venue for resolving genuinely contested questions of law or for predicting the outcome of complex policy analysis.

The interaction. Where a defendant moves to strike a claim that proposes a novel duty of care, the framework requires the court to consider whether the proposed duty is plainly and obviously not available under the Anns/Cooper framework. The framework recognizes that the Anns/Cooper analysis often requires evidence about the proximity of the parties, the foreseeability of the harm, and the policy considerations that bear on whether the prima facie duty should be recognized. Where the relevant analysis cannot be completed without evidence, the framework supports the case proceeding to a trial-level determination.

The clinical context — psychiatric care, discharge, and risk assessment

A brief clinical overview is useful for the analysis. Mental illness and risk of violence are a sensitive area; the framework presented here is the standard clinical framework, not commentary on the broader social discussion.

Mental illness and violence. Most people with mental illness are not violent. The framework for assessment recognizes that severe mental illness, particularly when not adequately treated, can in a subset of cases be associated with elevated risk of violence to self or others. The framework includes formal risk assessment tools, clinical judgment, family input where appropriate, and ongoing monitoring.

Discharge from psychiatric care. Discharge decisions in long-term psychiatric care are clinically complex. The framework requires consideration of:

• The patient’s current clinical status and treatment response
• The trajectory of the illness over time
• The available support systems (family, community mental health, supportive housing)
• The patient’s insight into their illness and willingness to engage with continuing care
• Any specific risk factors (history of violence, current ideation, access to means)
• The framework for involuntary care under the Mental Health Act (Ontario) or equivalent provincial legislation

A discharge decision that is clinically premature or inadequately supported can have catastrophic consequences. The framework recognizes that not every adverse post-discharge outcome reflects a breach of the standard of care; the framework asks whether the discharge decision was within the range of reasonable clinical judgment given the available information.

Risk assessment in psychiatric practice. Formal risk assessment is a component of psychiatric practice for patients with relevant risk factors. The framework includes structured tools (HCR-20, VRAG, others) along with clinical judgment. The output of risk assessment informs treatment decisions, level of supervision, family involvement, and (in appropriate cases) communication with potential third parties at risk.

Family involvement in psychiatric care. The framework for family involvement in adult psychiatric care navigates the tension between patient confidentiality and the practical realities that family members are often the principal support system. The framework typically supports:

• Sharing general information with family where the patient consents
• Receiving information from family where it bears on assessment or safety
• Specific communications about risk where the Smith v Jones framework applies
• Engagement of family in safety planning where appropriate

The framework does not require the psychiatric provider to make treatment decisions to benefit family members at the expense of the patient. The framework does require careful integration of family considerations into clinical decision-making where appropriate.

The discharge / family / risk intersection. The intersection of discharge decisions, risk assessment, and family involvement is particularly delicate. A patient who is being discharged after long-term psychiatric care may continue to have risk factors that affect the family members who will be supporting them after discharge. The framework includes structured assessment of the post-discharge environment, communication with the family where appropriate, and ongoing supports.

The facts

The patient. Bradley McKee was 27 years old at the time of the events. He had a long history of serious addiction and mental health issues.

The catastrophic event. On February 11, 2019, Bradley McKee killed his father, William McKee, in a stabbing. Bradley was subsequently prosecuted in the criminal courts and is now serving a life sentence.

The civil action. Ms. McKee (Bradley’s mother and William’s wife) commenced a civil action against the psychiatric providers who had been treating Bradley. The claim alleged negligence in his psychiatric treatment, including specifically:

• Discharging Bradley from long-term psychiatric care when discharge was contraindicated
• Failing to adequately assess the risk that Bradley posed
• Failing to exercise reasonable care to warn and protect third parties regarding that risk
• Failing to use all due care and skill throughout his treatment

The claim sought damages on behalf of Ms. McKee (under the Family Law Act, RSO 1990, c F.3, s 61) and on behalf of the estate of William McKee (under the Trustee Act, RSO 1990, c T.23).

The motion to strike

The respondent psychiatric providers brought a motion to strike the claim on the basis that it disclosed no reasonable cause of action.

The motion judge granted the motion. The reasoning addressed the two strands of the claim differently:

The negligent treatment claim. The motion judge found that the proposed duty of care to Ms. McKee and William (as non-patient family members) would conflict with the duty of care owed to Bradley as the patient. The reasoning was that any duty to make treatment decisions with a view to protecting the family members could place the respondents in an impossible conflict with their duty to treat the patient in the patient’s best interests. The motion judge struck the claim on this basis without granting leave to amend.

The failure to warn claim. The motion judge found that the claim for failure to warn did not plead sufficient material facts to support the cause of action. The claim was struck with leave to amend.

Ms. McKee appealed the order striking the negligent treatment claim without leave to amend. She did not appeal the order striking the failure to warn claim (which had been struck with leave to amend and could be repleaded).

The Court of Appeal’s analysis

The Court of Appeal allowed the appeal. The reasoning proceeded along several principal axes.

The duty of care category. The Court of Appeal agreed with the motion judge that the proposed duty of care to non-patient family members was not within an established category of duty of care. The framework therefore required the analysis to proceed under the Anns/Cooper framework for novel categories.

The Anns/Cooper analysis on a motion to strike. The Court of Appeal addressed the framework for conducting the Anns/Cooper analysis on a motion to strike, as distinct from a trial-level determination. The framework recognizes that the Anns/Cooper analysis is often evidence-dependent: the proximity assessment, the foreseeability analysis, and the policy considerations frequently require evidence that is not available at the motion-to-strike stage. The framework therefore supports caution before concluding at the motion-to-strike stage that a proposed novel duty of care is doomed to fail.

The conflict of duties analysis. The Court of Appeal rejected the motion judge’s conclusion that there was an impossible conflict between the duty to Bradley and the proposed duty to his family members. The court characterized the motion judge’s conflict reasoning as speculative, particularly in the context of a motion to strike.

The Court of Appeal’s reasoning emphasized that Ms. McKee’s claim was not framed as a claim that the respondents should have made treatment decisions for Bradley with a view to preventing harm to her and her husband. The claim was framed as a claim that the respondents fell below the standard of care in their treatment of Bradley and that Ms. McKee and her husband were harmed as a foreseeable consequence of the substandard treatment.

On the facts as pleaded, the framework supports the conclusion that Bradley and his parents had the same interest, not conflicting interests. All three had an interest in Bradley receiving appropriate psychiatric treatment, including treatment that would have addressed the mental health and addiction issues that, on the plaintiff’s theory, contributed to the catastrophic outcome.

The shared interest framework. The Court of Appeal’s reasoning on the shared interest is doctrinally important. The framework recognizes that the patient’s interest in appropriate treatment and the family’s interest in being supported through the patient’s illness can be (and frequently are) aligned rather than conflicting. The framework treats the conflict analysis as fact-specific rather than categorical. Where the patient and the family share the interest in appropriate treatment, the framework does not categorically negate the possibility of a duty of care to the family member.

The conclusion. The Court of Appeal held that the motion judge’s conclusion that the negligent treatment claim was doomed to fail was not supported on the available record. The conflict question should be decided on a proper evidentiary record at trial rather than on a motion to strike. The appeal was allowed and the claim was reinstated.

The framework is significant because it permits the case to proceed to a stage where the evidence about the specific clinical circumstances, the proximity of the parties, the foreseeability of the harm, and the relevant policy considerations can be developed and properly assessed.

The doctrinal anchors

Several doctrinal anchors emerge from the case.

The novel duty of care framework. Where a proposed duty of care does not fall within an established category, the Anns/Cooper framework applies. The framework requires structured analysis of proximity, foreseeability, and policy considerations. McKee v Shahid applies the framework specifically in the psychiatric malpractice context with proposed duty to non-patient family members.

The Anns/Cooper analysis on a motion to strike framework. The Anns/Cooper analysis is often evidence-dependent. The framework therefore supports caution before concluding at the motion-to-strike stage that a proposed novel duty of care is doomed to fail. McKee v Shahid is the principal cluster authority on the motion-to-strike interaction with novel duty of care.

The “doomed to fail” / plain-and-obvious motion to strike threshold. The framework for motions to strike applies a high threshold. The court must conclude that the claim has no reasonable prospect of success. Where the claim raises a genuinely difficult question that warrants further development on an evidentiary record, the framework supports the case proceeding.

The “shared interest” framework. The framework recognizes that the patient’s interest in appropriate treatment and the family members’ interest in being supported can be (and frequently are) aligned rather than conflicting. The framework treats the conflict analysis as fact-specific rather than categorical. The framework is doctrinally important because it does not allow a categorical conflict-of-duties argument to defeat the novel duty of care analysis at the threshold stage.

The duty of care to non-patient family members in psychiatric malpractice framework. Whether the duty exists in any given case remains to be determined on the evidence at trial. The framework does not categorically exclude the duty. McKee v Shahid keeps the door open for the framework to develop through specific cases.

The duty to warn framework. The Canadian duty to warn framework articulated in Smith v Jones applies to specific disclosure obligations where a clear, serious, and imminent risk to an identifiable person exists. The framework is distinct from the duty of care in treatment. McKee v Shahid clarifies the distinction: the duty to warn claim was struck on insufficient material facts (with leave to amend), while the negligent treatment claim was reinstated by the Court of Appeal.

The discharge from long-term psychiatric care framework. The framework for discharge decisions in long-term psychiatric care is clinically complex. The Court of Appeal’s reasoning permits the framework to be explored in the trial context, including consideration of whether the discharge was clinically supported and whether the post-discharge planning addressed the relevant risk factors.

The risk assessment in psychiatric practice framework. Formal risk assessment is a component of psychiatric practice for patients with relevant risk factors. The framework includes structured tools and clinical judgment. The Court of Appeal’s reasoning permits the framework to be explored in the trial context, including consideration of whether the risk assessment was adequate.

The Family Law Act s 61 framework. The Family Law Act permits family members to recover for their own losses arising from injury to a relative. The framework is engaged in cases like McKee v Shahid where the family member’s claim is for damages arising from the catastrophic outcome to the parent. The framework supports recovery of pecuniary and non-pecuniary losses related to the family member’s death.

The Trustee Act estate claim framework. Where the original victim of the tort has died, the framework permits the action to continue through their estate. The framework operates alongside the Family Law Act claim and supports recovery of the deceased’s own losses up to the time of death.

The mental illness and violence framework. The framework recognizes that most people with mental illness are not violent. The framework for assessment in cases where violence has occurred is clinically structured and does not stigmatize mental illness as a category. McKee v Shahid permits the framework to be explored in the specific case context.

The “family member as victim and survivor” framework. Where a family member is both a victim of the catastrophic outcome (their relative has been killed by another relative) and a survivor with a continuing relationship with the surviving relative (who is also a victim of inadequate care), the framework supports the family member’s standing to bring a claim. The framework treats the complex family dynamics as fact-specific rather than categorical.

Why this case matters

For families affected by psychiatric malpractice. The case is an important precedent that keeps the framework open for family members to bring claims in catastrophic outcome cases.

Some practical observations:

The duty of care question is unresolved but not categorically foreclosed. The Court of Appeal did not decide whether the duty of care to non-patient family members exists in psychiatric malpractice contexts. The court decided only that the question should be decided on a proper evidentiary record rather than at the motion-to-strike stage. Families with relevant claims have a viable framework for proceeding to discovery and (if warranted) trial.

The conflict of duties argument is not categorical. The motion judge’s reasoning that any duty to family members would conflict with the duty to the patient was rejected by the Court of Appeal. The framework treats the conflict question as fact-specific rather than categorical. Where the family and patient share the interest in appropriate treatment, the framework does not foreclose the family’s claim at the threshold.

The clinical and procedural records will matter. As the case proceeds to discovery and trial, the records of the discharge decision, the risk assessment, the family communications, and the post-discharge support arrangements will be the central evidence. The framework supports careful preservation and analysis of these records.

The Family Law Act and Trustee Act framework permits multiple claims. Family members and the estate of the deceased can both bring claims arising from the catastrophic outcome. The frameworks support recovery of different components of the loss.

For more on the general framework for evaluating medical malpractice cases, see Suing for Medical Malpractice in Ontario: What You Need to Know.

For mental health practitioners. A few practical observations:

The framework does not categorically expose practitioners to family member claims. The case keeps the framework open for these claims, but the substantive question (whether the duty of care exists in the specific case) remains to be decided. The framework is not a categorical expansion of liability.

The framework for clinical care remains the same. The case does not change the underlying clinical framework for psychiatric practice, including discharge decisions, risk assessment, and family involvement. The framework continues to operate on the principles of clinical judgment supported by structured assessment tools.

The clinical record matters. Where a discharge decision is being made for a patient with a complex history, the clinical record of the reasoning, the risk assessment, the available support systems, and the post-discharge plan supports the standard of care analysis. Where the record is detailed and the reasoning is transparent, the framework is more easily defended.

The duty to warn framework remains distinct. The Canadian duty to warn framework articulated in Smith v Jones continues to apply to specific disclosure obligations where a clear, serious, and imminent risk to an identifiable person exists. The framework is distinct from the duty of care in treatment.

Family involvement and safety planning are part of best practice. Where a patient is being discharged from long-term psychiatric care and the family is expected to be part of the post-discharge support system, the framework supports structured engagement with the family in safety planning. The framework recognizes the family’s role in supporting the patient’s recovery and managing post-discharge risk factors.

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Decision Date: September 25, 2025

Jurisdiction: Court of Appeal for Ontario

Citation: McKee v Shahid, 2025 ONCA 666 (CanLII)

Outcome: Appeal allowed. The Court of Appeal reinstated the appellant’s claim in negligence based on the respondents’ treatment of her son. The court agreed with the motion judge that the proposed duty of care to non-patient family members was not within an established category of duty of care. However, the court disagreed with the motion judge’s conclusion that there was an impossible conflict between the duty of care owed to the patient and any proposed duty of care to the patient’s family members. The court found the motion judge’s conflict analysis to be speculative on the available record. The court emphasized that the appellant’s claim was not framed as a claim that the respondents should have made treatment decisions for the patient with a view to preventing harm to the family members; the claim was framed as a claim that the respondents had fallen below the standard of care in their treatment of the patient and that the family members had been harmed as a foreseeable consequence of the substandard treatment. On the facts as pleaded, the patient and the family members had the same interest, not conflicting interests: all three had an interest in the patient receiving appropriate treatment. The court concluded that the conflict question should be decided on a proper evidentiary record at trial rather than on a motion to strike. The reinstatement of the claim does not resolve whether the duty of care to non-patient family members exists in psychiatric malpractice contexts; it permits the case to proceed to discovery and (where warranted) trial-level determination of that question. The separately pleaded failure to warn claim, which had been struck by the motion judge with leave to amend, was not the subject of the appeal.

Key authorities: Cooper v Hobart, 2001 SCC 79 (modified Anns/Cooper framework for novel duty of care); Anns v Merton London Borough Council, [1978] AC 728 (original two-stage test); Smith v Jones, [1999] 1 SCR 455 (Canadian framework for duty to warn in psychiatric context); Hunt v Carey Canada Inc, [1990] 2 SCR 959 (motion to strike threshold); R v Imperial Tobacco Canada Ltd, 2011 SCC 42 (plain and obvious test on motion to strike); Family Law Act, RSO 1990, c F.3, s 61 (family member damages); Trustee Act, RSO 1990, c T.23 (continuation of action through estate).