Therapeutic privilege

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Therapeutic privilege refers to the decision of a healthcare practitioner to withhold information from a patient when there is a justified belief that disclosure may cause serious mental or physical harm to them. [1] As of 2022, this defence is permissible in countries such as Australia, Canada, England, Netherlands and Wales as an exception to the standard consent process. [2] Despite this, there are very limited cases in which therapeutic privilege has been upheld. [2] This is mainly due to the complex ethical and legal ramifications in withholding information from a patient and how to define someone as being at sufficient risk to fall into this category wherein therapeutic privilege should prevail. Another challenge in enacting therapeutic privilege is the consideration of other professionals involved in patient care, such as where there is a multidisciplinary care team. [3] However, in withholding information, there is also a denial of patient autonomy [3]

Contents

Therapeutic privilege is an exception to the general rule of informed consent, and only applies when disclosure of the information itself could pose serious and immediate harm to the patient, such as prompting suicidal behavior. [4] The current AMA Code of Medical Ethics rejects therapeutic privilege as a defence. It states: "Except in emergency situations in which a patient is incapable of making an informed decision, withholding information without the patient’s knowledge or consent is ethically unacceptable." [5]

Callahan Klaver states: [6]

Some state laws severely restrict access to mental health records. Some require attending physicians to document in the record that they believe that access to the information contained in the medical record would harm their patients. Under the HIPAA privacy rule, if a licensed health care professional has determined, in the exercise of professional judgement, that the access requested is reasonably likely to endanger the life or physical safety of the individual or another person, the facility may then refuse such a request; however, this is a reviewable decision that affords the patient an appeal option.

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. [3] However, non-disclosure of patient’s diagnosis especially on file prevents other health professionals from working off accurate medical histories. [7] 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’. [8] Therapeutic privilege can be distinguished from scenarios where a patient has specifically requested to not be informed by the practitioner of information. [9] 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’’. [10] 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’. [11] 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.’. [9] Further, there is ambiguity surrounding therapeutic privilege as it is difficult to define patient harm objectively as well as how therapeutic privilege extends to the rest of a medical or care team of the patient. [3]

In a more liberal [ disambiguation needed ] approach, practitioners may endorse therapeutic privilege in line with the belief that disclosing every detail of their condition may detract from a more valuable use of time, such as disclosing the number of metastases in a critically ill cancer patient, rather than discussing symptom management or family struggles. [12] 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”. [13] Moreover, some argue that overload of information may hinder a patient’s ability to make a decision with clarity. [12]

Therapeutic Privilege Venn Diagram Therapeutic Privilege Venn Diagram.png
Therapeutic Privilege Venn Diagram

Psychiatry and Psychology

Therapeutic privilege is commonly discussed in the context of psychiatry. [7] Despite a wide-spread concern of the ethical and legal validity of therapeutic privilege, it continues to be used by behavioural healthcare professionals. [7] The American Medical Association states that ‘Information may be conveyed over time in keeping with the patient’s preferences and ability to comprehend the information.’. [5] At the same time, it outlines that ‘Withholding pertinent medical information from patients in the belief that disclosure is medically contraindicated creates a conflict between the physician’s obligations to promote patient welfare and to respect patient autonomy.’ [5] A study in 2001 found that 59% of psychiatrists disclosed a schizophrenia diagnosis after a first episode and 42% for personality disorders. [14] 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. [14] 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. [7]

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. [3] 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. [3] 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.’ [3]

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.’ [9] 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 [9]

Notable Cases

The Hii Chii Kok v London Lucien Ooi [1] case considered many aspects of therapeutic privilege which despite this Court of Appeal Decision occurring in Singapore, contained considerations that can be applied universally. Acknowledging the difficulty of defining a clear binary between impaired and capable patients, the Singapore Court of Appeal introduced what is now called a Novel Interpretation of Therapeutic Privilege (Novel Therapeutic Privilege). [1] The court ruled that therapeutic privilege can be upheld where the patient is not mentally impaired, but may refuse beneficial treatment because they do not fully understand it considering the following conditions are met; ‘(a) the benefit of the treatment to the patient; (b) the relatively low level of risk presented; and (c) the probability that even with suitable assistance, the patient would likely refuse such treatment owing to some misapprehension of the information stemming from the patient.’. [1] These patients may be referred to as having compromised capacity and considered to have ‘limited insight into the implications of treatment opinions and may be at risk of making decisions that many would consider contrary to their best interests and reflecting insufficient understanding’. [2] Examples given by the court included geriatric patients and those with anxiety disorders, who’s state of mind may prohibit understanding the true reality of low-risk treatments which are safe and provide an advantage to the patient and therefore therapeutic privilege should 'extend to cases where although patients have mental capacity, their decision-making capabilities are impaired to an appreciable degree.’. [1] Prior to this ruling, the Bolcham Test [15] 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’. [16]

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.’. [17] 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. [17] In this case the Supreme Court ruled that ‘The doctor is however entitled to withhold from the patient information as to a risk if he reasonably considers that its disclosure would be seriously detrimental to the patient’s health.’. [17] This came after a doctor failed to disclose to a patient the risk to their baby of shoulder dystocia in a vaginal delivery, which eventuated in her birth. [9] The patient states that had she known the risk, she would have rather had a caesarean section. [18]

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. [19] 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’. [19] 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.’. [19] Doctors are advised to discuss with colleagues before making the decision to withhold information from the patient. [19] Under the Guardianship Act 1987, it is illegal to withhold information from a guardian or person making decisions on behalf of the patient. [19] 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. [19]

Related Research Articles

Informed consent Process for obtaining subject approval prior to treatment or research

Informed consent is a principle in medical ethics and medical law that a patient should have sufficient information before making their own free decisions about their medical care. A healthcare provider is often held to have a responsibility to ensure that the consent that a patient gives is informed, and informed consent can apply to a health care intervention on a person, conducting some form of research on a person, or for disclosing a person's information. A health care provider may ask a patient to consent to receive therapy before providing it, a clinical researcher may ask a research participant before enrolling that person into a clinical trial, and a researcher may ask a research participant before starting some form of controlled experiment. Informed consent is collected according to guidelines from the fields of medical ethics and research ethics.

A patient's bill of rights is a list of guarantees for those receiving medical care. It may take the form of a law or a non-binding declaration. Typically a patient's bill of rights guarantees patients information, fair treatment, and autonomy over medical decisions, among other rights.

In developmental psychology and moral, political, and bioethical philosophy, autonomy is the capacity to make an informed, uncoerced decision. Autonomous organizations or institutions are independent or self-governing. Autonomy can also be defined from a human resources perspective, where it denotes a level of discretion granted to an employee in his or her work. In such cases, autonomy is known to generally increase job satisfaction. Self-actualized individuals are thought to operate autonomously of external expectations. In a medical context, respect for a patient's personal autonomy is considered one of many fundamental ethical principles in medicine.

Medical ethics is an applied branch of ethics which analyzes the practice of clinical medicine and related scientific research. Medical ethics is based on a set of values that professionals can refer to in the case of any confusion or conflict. These values include the respect for autonomy, non-maleficence, beneficence, and justice. Such tenets may allow doctors, care providers, and families to create a treatment plan and work towards the same common goal. It is important to note that these four values are not ranked in order of importance or relevance and that they all encompass values pertaining to medical ethics. However, a conflict may arise leading to the need for hierarchy in an ethical system, such that some moral elements overrule others with the purpose of applying the best moral judgement to a difficult medical situation. Medical ethics is particularly relevant in decisions regarding involuntary treatment and involuntary commitment.

Life support

Life support refers to the treatments and techniques performed in an emergency in order to support life after the failure of one or more vital organs. Healthcare providers and emergency medical technicians are generally certified to perform basic and advanced life support procedures; however, basic life support is sometimes provided at the scene of an emergency by family members or bystanders before emergency services arrive. In the case of cardiac injuries, cardiopulmonary resuscitation is initiated by bystanders or family members 25% of the time. Basic life support techniques, such as performing CPR on a victim of cardiac arrest, can double or even triple that patient's chance of survival. Other types of basic life support include relief from choking, staunching of bleeding by direct compression and elevation above the heart, first aid, and the use of an automated external defibrillator.

Confidentiality involves a set of rules or a promise usually executed through confidentiality agreements that limits access or places restrictions on certain types of information.

A medical error is a preventable adverse effect of care ("iatrogenesis"), whether or not it is evident or harmful to the patient. This might include an inaccurate or incomplete diagnosis or treatment of a disease, injury, syndrome, behavior, infection, or other ailment. Globally, it is estimated that 142,000 people died in 2013 from adverse effects of medical treatment; this is an increase from 94,000 in 1990. However, a 2016 study of the number of deaths that were a result of medical error in the U.S. placed the yearly death rate in the U.S. alone at 251,454 deaths, which suggests that the 2013 global estimation may not be accurate. In line with the high importance of the research area, a 2019 study identified 12,415 scientific publications related to medical errors, and outlined as frequently researched and impactful themes errors related to drugs/medications, applications related to medicinal information technology, errors related to critical/intensive care units, to children, and mental conditions associated with medical errors.

Medical record

The terms medical record, health record and medical chart are used somewhat interchangeably to describe the systematic documentation of a single patient's medical history and care across time within one particular health care provider's jurisdiction. A medical record includes a variety of types of "notes" entered over time by healthcare professionals, recording observations and administration of drugs and therapies, orders for the administration of drugs and therapies, test results, x-rays, reports, etc. The maintenance of complete and accurate medical records is a requirement of health care providers and is generally enforced as a licensing or certification prerequisite.

At common law, battery is a tort falling under the umbrella term 'Trespass to the person'. Entailing unlawful contact which is directed and intentional, or reckless and voluntarily bringing about a harmful or offensive contact with a person or to something closely associated with them, such as a bag or purse, without legal consent.

Male circumcision is the surgical removal of the foreskin (prepuce) from the human penis. The ethics of circumcision in neonates and children is a source of much controversy.

The medical history, case history, or anamnesis of a patient is information gained by a physician by asking specific questions, either of the patient or of other people who know the person and can give suitable information, with the aim of obtaining information useful in formulating a diagnosis and providing medical care to the patient. The medically relevant complaints reported by the patient or others familiar with the patient are referred to as symptoms, in contrast with clinical signs, which are ascertained by direct examination on the part of medical personnel. Most health encounters will result in some form of history being taken. Medical histories vary in their depth and focus. For example, an ambulance paramedic would typically limit their history to important details, such as name, history of presenting complaint, allergies, etc. In contrast, a psychiatric history is frequently lengthy and in depth, as many details about the patient's life are relevant to formulating a management plan for a psychiatric illness.

<i>Bolam v Friern Hospital Management Committee</i>

Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 is an English tort law case that lays down the typical rule for assessing the appropriate standard of reasonable care in negligence cases involving skilled professionals such as doctors. This rule is known as the Bolam test, and states that if a doctor reaches the standard of a responsible body of medical opinion, they are not negligent. Bolam was rejected in the 2015 Supreme Court decision of Montgomery v Lanarkshire Health Board.

The doctor–patient relationship is a central part of health care and the practice of medicine. A doctor–patient relationship is formed when a doctor attends to a patient's medical needs and is usually through consent. This relationship is built on trust, respect, communication, and a common understanding of both the doctor and patients' sides. The trust aspect of this relationship goes is mutual, the doctor trusts the patient to reveal any information that may be relevant to the case and in turn, the patient trusts the doctor to respect their privacy and not disclose this information to outside parties.

Informed refusal is where a person has refused a recommended medical treatment based upon an understanding of the facts and implications of not following the treatment. Informed refusal is linked to the informed consent process, as a patient has a right to consent, but also may choose to refuse.

Sidaway v. Board of Governors of the Bethlem Royal Hospital [1985] AC 871 is an important House of Lords case in English tort law, specifically medical negligence, concerning the duty of a surgeon to inform a patient of the risks before undergoing an operation.

The Health Care Consent Act (HCCA) is an Ontario law that has to do with the capacity to consent to treatment. See also: informed consent. The HCCA states that a person has the right to consent to or refuse treatment if they have mental capacity. In order to have capacity, a person must have the "ability" to understand and appreciate the consequences of the treatment decision. The law says that “a person is capable with respect to a treatment, admission to a care facility or a personal assistance service if the person is able to understand the information that is relevant to making a decision about the treatment, admission or personal assistance service, as the case may be, and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision”.

Medical malpractice is a legal cause of action that occurs when a medical or health care professional, through a negligent act or omission, deviates from standards in their profession, thereby causing injury to a patient. The negligence might arise from errors in diagnosis, treatment, aftercare or health management.

Canterbury v. Spence was a landmark federal case decided by the United States Court of Appeals for the District of Columbia Circuit that significantly reshaped malpractice law in the United States. It established the idea of "informed consent" to medical procedures.

<i>Montgomery v Lanarkshire Health Board</i>

Montgomery v Lanarkshire Health Board [2015] UKSC 11 is a Scottish delict, medical negligence and English tort law case on doctors and pharmacists that outlines the rule on the disclosure of risks to satisfy the criteria of an informed consent. The Supreme Court departed and overruled the earlier House of Lords case in Sidaway v Board of Governors of the Bethlem Royal Hospital, in reconsidering the duty of care of a doctor towards a patient on medical treatment. The case changed the Bolam test to a greater test in medical negligence by introducing the general duty to attempt the disclosure of risks.

<i>Salgo v. Leland Stanford Jr. University Board of Trustees</i> 1957 U.S. court case establishing "informed consent"

Salgo v. Leland Stanford Jr. University Board of Trustees was a 1957 court case that helped to establish what the practice of informed consent was supposed to look like in the practice of modern medicine. This was evaluated with respect to the California Court of Appeals case where Martin Salgo sued the trustees of Stanford University and Stanford physician Dr. Frank Gerbode for malpractice as he claimed that they did not inform him nor his family of the details and risks associated with an aortogram which left him permanently paralyzed in his lower extremities.

References

  1. 1 2 3 4 5 Hii Chii Kok v Ooi Peng Jin London Lucien [2017] SGCA 38 (Sing)
  2. 1 2 3 Menon, Entwistle, V., Campbell, A. V., & van Delden, J. J. M. (2021). How should the “privilege” in therapeutic privilege be conceived when considering the decision-making process for patients with borderline capacity? Journal of Medical Ethics, 47(1), 47–50. https://doi.org/10.1136/medethics-2019-105792
  3. 1 2 3 4 5 6 7 Hodkinson. (2012). The Need to Know—Therapeutic Privilege: A Way Forward. Health Care Analysis, 21(2), 105–129. https://doi.org/10.1007/s10728-012-0204-5
  4. ↑ Van den Heever, P. (2005). Pleading the defence of therapeutic privilege. South African Medical Journal, 95(6), 420-421.
  5. 1 2 3 American Medical Association. Withholding information from patients: code of medical ethics opinion 2.1.3 2016. Available: https://www.ama-assn.org/delivering-care/ethics/withholding-information-patients
  6. ↑ Callahan Klaver, J. (2015), Privacy and Health Law. In Abdelhak, M., Grostick, S., & Hanken, M. A. (2015). Health Information: Management of a Strategic Resource. (pp. 539-575). Elsevier.
  7. 1 2 3 4 Sims, Nelson, K. J., & Sisti, D. (2021). Borderline personality disorder, therapeutic privilege, integrated care: is it ethical to withhold a psychiatric diagnosis? Journal of Medical Ethics, medethics–2021–107216–. https://doi.org/10.1136/medethics-2021-107216
  8. ↑ Chan, Tulloch, E., Cooper, E. S., Smith, A., Wojcik, W., & Norman, J. E. (2017). Montgomery and informed consent: where are we now? BMJ, 357, j2224–j2224. https://doi.org/10.1136/bmj.j2224
  9. 1 2 3 4 5 Finnerty. (2021). The Privilege of Information-An Examination of the Defence of Therapeutic Privilege and its Implications for Pregnant Women. Medical Law Review, 29(4), 639–660. https://doi.org/10.1093/medlaw/fwab035
  10. ↑ Mulheron. (2017). Has Montgomery Administered the Last Rites to Therapeutic Privilege? A Diagnosis and a Prognosis. Current Legal Problems, 70(1), 149–188. https://doi.org/10.1093/clp/cux002
  11. ↑ Maclean. (2009). Autonomy, informed consent and medical law : a relational challenge . Cambridge University Press.
  12. 1 2 Epstein, Korones, D. N., & Quill, T. E. (2010). Withholding Information from Patients — When Less Is More. The New England Journal of Medicine, 362(5), 380–381. https://doi.org/10.1056/NEJMp0911835
  13. ↑ Salgo v Leland Stanford Jr University Board of Trustees (1957), 317 P 2d 170 (Cal)
  14. 1 2 Clafferty, McCabe, E., & Brown, K. W. (2001). Conspiracy of silence? Telling patients with schizophrenia their diagnosis. The Psychiatrist, 25(9), 336–339. https://doi.org/10.1192/pb.25.9.336
  15. ↑ Bolam v Friern Hospital Management Committee [1957] 1 WLR 582, subsequently modified in Bolitho v City and Hackney Health Authority [1998] AC 232.
  16. ↑ Low KEE YANG. (2017). Doctor’s duty of disclosure and the Singapore Court of Appeal decision in Hii Chii Kok : Montgomery transformed. The Tort Law Review, 25(2), 79–91.
  17. 1 2 3 Montgomery v Lanarkshire Health Board, [2015] 1 AC 1430 (Sct).
  18. ↑ . Chan, Tulloch, E., Cooper, E. S., Smith, A., Wojcik, W., & Norman, J. E. (2017). Montgomery and informed consent: where are we now? BMJ, 357, j2224–j2224. https://doi.org/10.1136/bmj.j2224
  19. 1 2 3 4 5 6 New South Wales Health (2020). Consent to Medical and Healthcare Treatment Manual. https://www.health.nsw.gov.au/policies/manuals/Documents/consent-section-4.pdf
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