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.Hii Chii Kok v Ooi Peng Jin London Lucien SGCA 38 (Sing) 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.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 Despite this, there are very limited cases in which therapeutic privilege has been upheld. 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.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 However, in withholding information, there is also a denial of patient autonomy
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.Van den Heever, P. (2005). Pleading the defence of therapeutic privilege. South African Medical Journal, 95(6), 420-421. 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."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
Callahan Klaver states: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.
Legal and ethical considerations 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. However, non-disclosure of patient's diagnosis especially on file prevents other health professionals from working off accurate medical histories.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 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’.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 Therapeutic privilege can be distinguished from scenarios where a patient has specifically requested to not be informed by the practitioner of information.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 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’’.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 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’.Maclean. (2009). Autonomy, informed consent and medical law : a relational challenge . Cambridge University Press. 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.’. 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.
In a more liberal 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.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 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”.Salgo v Leland Stanford Jr University Board of Trustees (1957), 317 P 2d 170 (Cal) 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 a widespread concern of the ethical and legal validity of therapeutic privilege, it continues to be used by behavioural healthcare professionals. 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.’. 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.’ A study in 2001 found that 59% of psychiatrists disclosed a schizophrenia diagnosis after a first episode and 42% for personality disorders.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 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