Hostname: page-component-848d4c4894-2pzkn Total loading time: 0 Render date: 2024-06-03T23:16:51.171Z Has data issue: false hasContentIssue false
  • English
  • Français

Therapeutic Privilege: Variation on the Theme of Informed Consent

Published online by Cambridge University Press:  27 April 2021

Margaret A. Somerville
Get access Rights & Permissions [Opens in a new window]

Extract

Since 1980. the Supreme Court of Canada has handed down two judgments which have had a major impact on the law of informed consent in this country. These are Reibl v. Hughes and Hopp v. Lepp. The doctrine of therapeutic privilege, the subject of this article, was discussed in both cases. But, in order to examine this doctrine, first, a brief explanation of the Court's more fundamental ruling on the doctrine of informed consent is needed.

The Basic Structure of Informed Consent and Therapeutic Privilege

Citing and relying on the United States case of Canterbury v. Spence, the Supreme Court of Canada changed the reference point for establishing the standard to be used to determine the legally required scope of disclosure of information to a patient in order to obtain his or her informed consent. Previously, this standard had been set according to the information that “the reasonable physician in the same circumstances” would disclose. It became what “the reasonable patient in those circumstance? would want to know, which encompasses information concerning “the nature of the proposed operation, its gravity, any material risks and any special or unusual risks attendant upon the performance of the operation.”

Type
Article
Information
Law, Medicine and Healthcare , Volume 12 , Issue 1 , February 1984 , pp. 4 - 12
Copyright
Copyright © American Society of Law, Medicine and Ethics 1984

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

Portions of this article, including the diagrams, rely upon a previously published article, Somerville, M.A., Structuring the Issues in Informed Consent, McGill Law Journal 26(4): 740 (1981).Google ScholarPubMed
Reibl v. Hughes, (1980) 114 D.L.R. (3d) I (S.C.C.).Google Scholar
Hopp v. Lepp, (1980) 112 D.L.R. (3d) 67 (S.C.C.).Google Scholar
Canterbury v. Spence, 464 F.2d 772 (D.C. Cir.), cert. denied, 409 U.S. 1064 (1972).Google Scholar
See, e.g., Male v. Hopmans, (1966) 54 D.L.R. (2d) 592, 597–98 (Ont. H.C.), See also Picard, E.I., Legal Liability of Doctors and Hospitals in Canada (Carswell, Toronto) (1978) at 78–82.Google Scholar
Hopp v. Lepp, supra note 3, at 81. This standard was reaffirmed in Reibl v. Hughes, supra note 2, at 5.Google Scholar
It is difficult to articulate the compass of the word “harm” in this definition, and I have made a decision not to attempt to do so. While this leaves the definition open to abuse, it is proposed that this is a risk which must be taken, because the alternative is a definition that is either too broad or too narrow. Further, while suffering is always a form of harm, the fact that the patient may suffer if a disclosure is made would not necessarily constitute the type of harm envisioned as being necessary for therapeutic privilege to apply.Google Scholar
Such a discretionary approach to defining harm would not be unique in the law; support could be found for it in, and analogies drawn from, other areas. For example, the law has never regarded all injury as damage for its purposes and hence compensable, provided that a tort has been committed. For instance, while damages can now be recovered for negligently inflicted “nervous shock,” they cannot be recovered in general, for some lesser entity which may be described as “mental distress” or “normal grief.” Where the law draws the line between these different categories of injury is discretionary and yet it does so, although not without criticism. Similarly, what will constitute physical or mental harm for the purposes of the application of therapeutic privilege must remain somewhat open.Google Scholar
This is to sacrifice some certainty for flexibility and means that physicians cannot be given ironclad guarantees or formulae which if applied will definitively establish that, in the circumstances, they can rely on the privilege. This may be perceived as unfortunate, but it is characteristic of the nature of professional judgment and the law which governs it. It is both the privilege and responsibility of the professional to have the liberty to exercise that judgment.Google Scholar
This is true unless it is argued that the concept of “materiality” takes into account a concept of harm and that information that would be likely to harm a person would not be material to him.Google Scholar
Reibl v. Hughes, supra note 2; Hopp v. Lepp, supra note 3. See Meisel, A., The “Exceptions” to the Informed Consent Doctrine: Striking a Balance Between Competing Values in Medical Decision Making, Wisconsin Law Review 1979(2): 413, 461.Google Scholar
Canterbury v. Spence, supra note 4, at 789.Google Scholar
Id.Google Scholar
Id.Google Scholar
McLean v. Weir, [1977] 5 W.W.R. 609, 621 (B.C.S.C.) (testimony offered by defendant accepted by the Court), affirmed, [1980] 4 W.W.R. 330 (B.C.C.A.). See Picard, , Comment, Canadian Cases on the Law of Torts 3: 87 (1977).Google Scholar
Such an approach may be expressly rejected if it is argued by a defendant physician. It is, however, implicitly rejected in every case where the court imposes a minimum required standard of disclosure, although the patient asked no questions. See Reibl v. Hughes, supra note 2; Hopp v. Lepp, supra note 3.Google Scholar
It should be considered whether non-verbal as well as verbal requests of the patient should be recognized. Care would need to be taken to ensure that the concept of non-verbal requests was not abused. Despite this danger, and particularly in the types of situations in which therapeutic privilege will need to be exercised, such a provision is almost certainly needed. It should be also noted that something less than waiver of the right to be informed is being contemplated here.Google Scholar
See Meisel, , supra note 9, at 467–68.Google Scholar
Id. at 468.Google Scholar
Id. at 462.Google Scholar
See Cassell, E.J., The Nature of Suffering and the Coals of Medicine, New England Journal of Medicine 306(11): 639–44 (March 18, 1982).Google Scholar
Somerville, M.A., Letter, New England Journal of Medicine 307(12): 758–59 (September 16, 1982).Google Scholar
See Meisel, , supra note 9, at 464–65.Google Scholar
See Skegg, P.D.G., A Justification for Medical Procedures Performed without Consent, Law Quarterly Review 90: 512 (1974).Google ScholarPubMed
See Picard, , supra note 5, at 24.Google Scholar
See McLaughlin, P., Guardianship of the Person (National Institute on Mental Retardation, Downsview, Ont.) (1979) at 35–46.Google Scholar
Meisel, , supra note 9, at 466.Google Scholar
McLean v. Weir, [1977] 5 W.W.R. 609, 627 (B.C.S.C.).Google Scholar
Beecher, H.K., Surgery as Placebo, Journal of the American Medical Association 176: 1102 (1961).Google ScholarPubMed
Appelbaum, P.S. Gutheil, T.G., Drug Refusal: A Study of Psychiatric Inpatients, American Journal of Psychiatry 127(3): 340, 345 (March 1980).Google Scholar
For further discussion, see Somerville, M.A., Legal and Ethical Aspects of Decision-Making by and for Aged Persons in the Context of Psychiatric Care, in Ethics in Mental Health Practice (Salladay, Kentsmith, , eds.) (Grune and Stratton, New York) (forthcoming 1984).Google Scholar
Hopp v. Lepp, supra note 3, at 77, 81.Google Scholar
Reibl v. Hughes, supra note 2, at 34–35.Google Scholar
Hopp v. Lepp, supra note 3, at 77.Google Scholar
Id. at 79–80.Google Scholar
Reibl v. Hughes, supra note 2, at 13.Google Scholar
Id. at 34.Google Scholar
See Structuring the Issues in Informed Consent, supra note 1, at 740. See also Meisel, , The Expansion of Liability for Medical Accidents: From Negligence to Strict Liability by Way of Informed Consent, Nebraska Law Review 56: 51, 104–107 (1977).Google ScholarPubMed
McLean v. Weir, [1977] 5 W.W.R. 609, 622 (B.C.S.C.).Google Scholar
Kelly v. Hazlett, (1977) 75 D.L.R. (3d) 536, 558 (Ont. H.C.).Google Scholar
See Somerville, supra note 20, at 770–71.Google Scholar
Mayrand, A., L'Inviolabilite de la Personne Humaine (Wilson et Lafleur, Ltee, Montreal, Que.) (1975) at 47–49.Google Scholar
Halushka v. University of Saskatchewan, (1966) 53 D.L.R. (2d) 436, 444 (Sask. C.A.).Google Scholar
Kelly v. Hazlett, supra note 38.Google Scholar
Id. at 565.Google Scholar
Id.Google Scholar
Taub, S., Cancer and the Law of Informed Consent, Law, Medicine & Health Care 10(2): 61, 62 (April 1982).Google ScholarPubMed
See, e.g., 45 C.F.R. Part 46 (1981); 21 C.F.R. Part 50 (1980); Medical Research Council (Canada), Ethics in Human Experimentation (Minister of Supply and Service No. 6, Ottawa, Ont.) (1978).Google Scholar
Richards, E.R. Rathbun, K.C., A Procrustean Approach to Informed Consent: The Texas Medical Disclosure Panel, Law, Medicine & Health Care 10(4): 158, 161 (September 1982). However, in one case currently being undertaken in the United States, a hospital is being sued by the wife of a patient who died after being admitted to the emergency room and who refused to consent to treatment after the risks had been explained to him. I am indebted to Professor Angela R. Holder of Yale University School of Medicine for bringing this case to my attention.Google ScholarPubMed
Id.Google Scholar