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The Need to Know—Therapeutic Privilege: A Way Forward

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Abstract

Providing patients with information is fundamental to respecting autonomy. However, there may be circumstances when information may be withheld to prevent serious harm to the patient, a concept referred to as therapeutic privilege. This paper provides an analysis of the ethical, legal and professional considerations which impact on a decision to withhold information that, in normal circumstances, would be given to the patient. It considers the status of the therapeutic privilege in English case law and concludes that, while reference is made to circumstances when information (primarily in relation to risk disclosure) may be withheld, further clarification is required on the status of therapeutic privilege. I suggest there has been shift in English law relating to the standard of information disclosure towards one set by the test of the reasonable, prudent patient. It is this shift that necessitates the existence of a therapeutic privilege which enables doctors to withhold information that would usually be given to the patient in order to prevent serious harm. I then explore the professional guidance in relation to information disclosure and how this relates to the legal position. There are strong ethical arguments in favour of disclosure of information to patients. In light of these, further clarification is required to identify and define the grounds on which this exception exists, the information that could lawfully be withheld and how this exception extends to rest of the health care team, particularly nurses. As such, explicit ethical and legal scrutiny of therapeutic privilege is needed in order to consider how this concept might be articulated, constrained and regulated.

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Notes

  1. Withholding information is linked to the dialogue on truth-telling. For a literature review on truth-telling see [75]. For an overview of notions of trust and honesty in medicine see [46] and for an overview of the ethics of truth-telling see [37].

  2. For further discussion of the related concepts to the notions of information disclosure and definitions of each of these terms see [8] and [46]. In particular see Chap. 7 ‘Deceptions and concealments in medical and nursing practice’ in [46, p 94].

  3. See [14] for further discussion. A summary of Buchanan’s arguments critiquing the potential harm resulting in disclosure is provided by [59, pp 84–85]. For a more detailed discussion of these issues see [58].

  4. Although Beauchamp and Childress caution that justifying paternalistic actions by assigning an overriding status to either respect for autonomy or beneficence is overly simplistic and can be seriously misleading’ [4, p 187].

  5. Mr Justice Bristow emphasises that ‘if the information is withheld in bad faith, the consent will be vitiated by fraud’ [17 per Mr Justice Bristow at 265].

  6. Interestingly, Mr Justice Rougier in [56] repeats this passage of Lord Templeman’s and refers to this as therapeutic privilege. He goes onto define this as a situation where, ‘a doctor may be genuinely and reasonably so convinced that a particular operation is in the patients best interests that he is justified in being somewhat economical with the truth where recital of dangers are concerned’ [56 per Mr Justice Rougier].

  7. Lord Bridge did, however, make the case for the role of judicial intervention in this process in [70 per Lord Bridge at 663]. Ruling in favour of the professional standard of information disclosure Lord Bridge entered an important caveat, ‘[a] judge might in certain circumstances come to the conclusion that disclosure of a particular risk was so obviously necessary to an informed choice on the part of the patient that no reasonable prudent medical man would fail to make it’. However, Jones [49, p 116] identifies the difficulty has been that there are very few instances where a court has been willing to do this. One example of such an instance is [56].

  8. This willingness to assess and challenge the medical profession has been analysed by Lord Woolf in [79].

  9. However, Devany in [22] comments on Chester v Afshar and notes that this ‘case has not altered the duties of surgeons’ [22, p 104] and ‘the responsibilities of the courts and doctors remain the same as they ever were’ [22, p 107].

  10. For a discussion of the criticisms of this test (along with the criticisms of the professional standard of information disclosure) see [45, p 280].

  11. The High Court of Australia took the opportunity to demonstrate its commitment to the standard of information disclosure established in Rogers v Whitaker [68] in 2001 in Rosenberg v Percival [69].

  12. For legal authorities see [9]. For consideration of liability of junior and inexperienced hospital staff in addition to a rejection of the concept of team negligence see [77].

  13. The use of the phrase ‘logical analysis’ refers Lord Browne-Wilkinson’s ruling in Bolitho [10 per Lord Browne-Wilkinson at 243]. Within this ruling his Lordship also states that ‘in cases of diagnosis and treatment there are cases where, despite a body of professional opinion sanctioning the defendants conduct, the defendant can properly be held liable for negligence’ [10 per Lord Browne-Wilkinson at 243]. He follows this with ‘(I am not here considering questions of disclosure of risk)’ [10 per Lord Browne-Wilkinson at 243]. The emphasis of this exception is relevant when considering the standard of care in relation to risk disclosure and needs to be viewed in the context of Lord Browne-Wilkinson’s entire ruling. The significance of this phrase has been considered by Brazier and Miola [12, p 108]. They conclude that, ‘Either, his Lordship was simply and correctly flagging up the fact that questions of information disclosure were simply not relevant on the facts of Bolitho, or, more probably, Lord Browne-Wilkinson considered that restraining Bolam in the context of information disclosure has already been achieved’.

  14. For an illustration of the retention of individual accountability by a doctor and a pharmacist in circumstances of a prescription error see [65]. In addition there may be shared liability when several practitioners are involved in an incident that causes harm to a patient see [24].

  15. This guidance has a very particular use of the terms ‘should’ and ‘must’. ‘You must’ is used as an overriding duty or principle. ‘You should’ is used when providing an explanation of how to meet the overriding duty. ‘You should’ is also used where a duty or principle will not apply in all situations or circumstances, or where there are factors outside ones control that effect whether or how to comply with the guidance’ [35, p 1].

  16. See endnote 15.

  17. The subjective particular patient standard of information disclosure has been criticised. Mason and Brodie argue that dependence on the particular patient standard ‘opens the door to hindsight to such an extent that its use becomes unreasonable’ [54, pp 298–9]. Maclean [52, p 394] comments that ‘the courts have always rejected a subjective standard’. However, despite identifying that a subjective test would be almost impossible to enforce, Jackson [45, p 282] acknowledges that it should not be totally dismissed as an impractical moral ideal as it is valuable for the doctor to attempt to discover the individual patient’s subjective priorities by means of inquiry. Heywood [43, p4] considers the position of the individual patient arguing that there, ‘must be at least some room to consider the position of the individual patient in relation to risk disclosure’.

  18. Maclean [52, pp 411–413] is referring to the 1998 GMC guidance [34] ‘Seeking patients consent: the ethical considerations. London. GMC. But the point stands for the GMC ‘Consent: patients and doctors making decisions together’ [35].

  19. Forvargue and Miola [32] discuss the relationship between the GMC guidance [35] and the law pertaining to the legal standard of information disclosure. They conclude that if the law requires doctors to act ‘reasonably’ in terms of information disclosure then the GMC guidance may be seen by a court as the definition of how the reasonable doctor would act. In this respect, the law would essentially be drafted by the medical profession [32, p 15].

  20. For a full discussion on notions of trust and honesty in medicine see [46].

  21. For a comprehensive discussion of lying see [8] in particular Chap. 15 ‘Lies to the sick and the dying’ [8, pp 220–242].

  22. However, it is acknowledged in [44] that there is uncertainty as to the extent to which the practitioners studied recognised any withholding of information as therapeutic privilege, but rather using professional judgement in tailoring information to the needs of individual patients.

  23. The abolition of therapeutic privilege in relation to informed consent is discussed in [7]. Berg et al. [7, p 85] conclude that ‘if there is any room at all for therapeutic privilege, it must be framed narrowly in terms of interference with patients decision-making capabilities and applied only in extreme cases’.

  24. Although there is recognition within the recommendations that there might be circumstances when a delayed disclosure could be considered. For further comment on this report see [64]. Others have called for even more specific guidance, for example defining the harm or ‘medical contraindication’ which would justify withholding treatment see [71].

  25. For examples of scenarios which illustrate additional information disclosure dilemmas and exploration of how to practically apply the American Medical Association guidelines see [71].

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  1. Bioethics and Medical Jurisprudence, School of Law, University of Manchester, Oxford Road, Manchester, M13 9PL, UK

    Kate Hodkinson

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Hodkinson, K. The Need to Know—Therapeutic Privilege: A Way Forward. Health Care Anal 21, 105–129 (2013). https://doi.org/10.1007/s10728-012-0204-5

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