Therapeutic privilege

In a doctor's role to act in the best interest of patients and to do no harm, the defense of therapeutic privilege validates non-disclosure of information, where disclosure may result in harm to the patient. Whilst there is ongoing concern on the conflict between medical paternalism and patient autonomy, it is argued that ‘the idea of a fully autonomous patient making choices completely independent of the doctor’s input does not reflect the complex reality of medical decision making’. Therapeutic privilege can be distinguished from scenarios where a patient has specifically requested to not be informed by the practitioner of information. Generally, 4 types of harm have been identified which may be causation to consider therapeutic privilege as discussed by Mulheron who states’ (i) some mental or psychological harm to the patient (falling short of a recognized psychiatric injury); (ii) some physical harm to the patient; (iii) the patient deciding to forego some treatment being recommended by the doctor; or (iv) some combination of these ‘harms’’. Maclean discusses the significant challenge in creating a boundary between autonomy and patient benefit, writing that ‘although the obligation to benefit the patient seems intuitively a good thing, it is important to determine the limits of the duty and consider how it interacts with the obligation to respect autonomy’. Another ethical challenge of therapeutic privilege which is discussed by Finnerty, is the question of who is qualified to judge the effect of non-disclosure on a patient which is critical consideration for a decision, ‘Insofar as it could be, what was clear from the case law was that it is the medical professional’s judgement of the effect of disclosure on the patient that is relevant. What is unclear is the qualification or training that would underpin such a judgment, which is clearly not medical in nature.’. This was discussed in the Court of Appeals of California in 1957 where Bray states that one needs to “recognize that each patient presents a separate problem, that the patient’s mental and emotional condition is important ... and that in discussing the element of risk a certain amount of discretion must be employed consistent with the full disclosure of facts necessary to an informed consent”. Moreover, some argue that overload of information may hinder a patient's ability to make a decision with clarity. == Psychiatry and Psychology ==

Therapeutic privilege is commonly discussed in the context of psychiatry. Despite Borderline Personality Disorder (BPD) being a well-established diagnosis with treatments available, many practitioners still do not disclose or document a patient's BPD diagnoses on their file. A common justification for non-disclosure to the patient is concern that stigma or an exacerbation of the patient's symptoms as a result of disclosure will cause serious harm to the individual. == Therapeutic Privilege in a Multidisciplinary Team ==

Doctors are often involved in a multidisciplinary team such as with nurses who have their own legal and ethical duties and are independently accountable for their own actions. Given this and that ‘the extent to which this therapeutic privilege extends to the rest of the health care teams has not been expressly examined either within case law or literature’, it is suggested that further clarity is needed as to how therapeutic privilege extends to the rest of the team. Moreover, in cases where other members of the team do not agree with the doctor's decision to uphold therapeutic privilege, it is argued that it places this healthcare practitioner in a compromised position and ‘there is no legal and professional guidance discussing therapeutic privilege in relation to the nurse and the potential issues this could create within the health care team.’ == Pregnancy and Childbirth ==

Pregnancy and the post-partum period are contexts particularly relevant to therapeutic privilege given the heightened risk as discussed by Finnerty who states that ‘first, the nature of childbirth as a situation of heightened stress, pain and emotional distress may result in therapeutic privilege being used more in that context than in other healthcare encounters.’ Other relevant criticisms discussed of therapeutic privilege in the context of pregnancy include pregnancy being a long process providing sufficient opportunity to provide the patient with information as well as birth presenting a scenario of heightened practitioner-patient power imbalance where therapeutic privilege can have a negative impact on the birthing experience, risking negative patient-doctor relationships == Notable Cases ==

The Hii Chii Kok v London Lucien Ooi approach was utilized which prioritised doctors and states that, ‘a doctor is not negligent if he can show that his practice accorded with a substantial and respectable body of medical opinion in his field – applied to all three aspects of a doctor’s work, namely, diagnosis, advice and treatment’. Recognising that therapeutic privilege provides doctors with a significant amount of power over the patient, the court of the Montgomery v Lanarkshire Health Board 2015 case ruled therapeutic privilege ‘is not intended to subvert that principle by enabling the doctor to prevent the patient from making an informed choice where she is liable to make a choice which the doctor considers to be contrary to her best interests.’. The Montgomery v Lanarkshire Health Board (2015) case uses the term ‘therapeutic exception’ instead of ‘therapeutic privilege’ as they emphasized the extreme conditions required for its use. == Australia ==

In New South Wales, practitioners are permitted to withhold information in 2 cases: 1) Where a patient has explicitly requested to have information withheld from them and have directed a doctor to act on their behalf and 2) in the case of therapeutic privilege. Therapeutic privilege in NSW is considered a scenario where ‘Information could be withheld in rare circumstances where the Medical Practitioner holds a reasonable belief that providing information would be damaging to the patient’s health’. Conditions where therapeutic privilege may be permitted are listed as ‘the patient’s personality, temperament or attitude; their level of understanding; the nature of the treatment and the likelihood of adverse effects resulting from the treatment.’. Doctors are advised to discuss with colleagues before making the decision to withhold information from the patient. Under the Guardianship Act 1987, it is illegal to withhold information from a guardian or person making decisions on behalf of the patient. In cases where practitioners are uncertain about whether they can withhold information from a patient, they are encouraged to consult advice from their local Director of Medical Services or the Ministry of Health Legal Branch. ==References==