Therapeutic Privilege: Variation on the Theme of Informed Consent

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).

Reibl v. Hughes, (1980) 114 D.L.R. (3d) I (S.C.C.).

Hopp v. Lepp, (1980) 112 D.L.R. (3d) 67 (S.C.C.).

Canterbury v. Spence, 464 F.2d 772 (D.C. Cir.), cert. denied, 409 U.S. 1064 (1972).

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.

Hopp v. Lepp, supra note 3, at 81. This standard was reaffirmed in Reibl v. Hughes, supra note 2, at 5.

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.

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.

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.

Canterbury v. Spence, supra note 4, at 789.

Id.

Id.

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).

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.

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.

See Meisel , supra note 9, at 467–68.

Id. at 468.

Id. at 462.

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).

Somerville M.A. , Letter, New England Journal of Medicine 307(12): 758–59 (September 16, 1982).

See Meisel , supra note 9, at 464–65.

See Skegg P.D.G. , A Justification for Medical Procedures Performed without Consent, Law Quarterly Review 90: 512 (1974).

See Picard , supra note 5, at 24.

See McLaughlin P. , Guardianship of the Person (National Institute on Mental Retardation, Downsview, Ont.) (1979) at 35–46.

Meisel , supra note 9, at 466.

McLean v. Weir, [1977] 5 W.W.R. 609, 627 (B.C.S.C.).

Beecher H.K. , Surgery as Placebo, Journal of the American Medical Association 176: 1102 (1961).

Appelbaum P.S. Gutheil T.G. , Drug Refusal: A Study of Psychiatric Inpatients, American Journal of Psychiatry 127(3): 340, 345 (March 1980).

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).

Hopp v. Lepp, supra note 3, at 77, 81.

Reibl v. Hughes, supra note 2, at 34–35.

Hopp v. Lepp, supra note 3, at 77.

Id. at 79–80.

Reibl v. Hughes, supra note 2, at 13.

Id. at 34.

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).

McLean v. Weir, [1977] 5 W.W.R. 609, 622 (B.C.S.C.).

Kelly v. Hazlett, (1977) 75 D.L.R. (3d) 536, 558 (Ont. H.C.).

See Somerville , supra note 20, at 770–71.

Mayrand A. , L'Inviolabilite de la Personne Humaine (Wilson et Lafleur, Ltee, Montreal, Que.) (1975) at 47–49.

Halushka v. University of Saskatchewan, (1966) 53 D.L.R. (2d) 436, 444 (Sask. C.A.).

Kelly v. Hazlett, supra note 38.

Id. at 565.

Id.

Taub S. , Cancer and the Law of Informed Consent, Law, Medicine & Health Care 10(2): 61, 62 (April 1982).

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).

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.

Id.