The legal and ethical implications of therapeutic privilege - is it ever justified to withhold treatment information from a competent patient?

Abstract

This article examines the standard of disclosure, set by law, of risks of treatment and alternative procedures that should normally be disclosed to patients. Therapeutic privilege has been recognized by the courts as an exception to this standard of disclosure. It provides a justification for withholding such information from competent patients in the interests of patient welfare. The article explores whether this justification is either legally or ethically defensible. In assessing patient welfare, the health care professional is required to consider the patient's overall best interests - but this is not limited to an assessment of medical best interests. It is contended that the health care professional is neither qualified nor justified in making such a judgement, as the law recognizes that a competent adult patient determines her own best interests. This is not possible without sufficient information of risks to inform the decision.