g. Disclosing Withheld Information to a Relative. Physicians can only rely on
therapeutic privilege when they can document that a patient's anxiety is significantly
above the norm. If information is kept from the patient, the information must still be
disclosed to a relative. Before the procedure can be performed, the informed relative
must concur with the patient's consent to the procedure.
TELLING THE NEXT OF KIN
A pregnant woman with an inordinate fear of surgery and a history of heart problems
goes into labor. As the labor progresses, it becomes increasingly apparent that the
baby, who in the breech position, will have to be delivered by Caesarean section. In
view of the woman's weak heart and expressed fear of being operated on, the
physician decides to exercise therapeutic privilege, withholding the fact that the baby
will have to be delivered by C-section. The husband is informed that delivery will be
by C-section and his consent is duly obtained. This possibility had been discussed
by the physician and the woman's spouse prior to delivery. Risks and benefits of a
Caesarean delivery had been covered with the spouse earlier and his permission
had been obtained at that time.
UNDER THERAPEUTIC PRIVILEGE
At a minimum, the physician obtains from the patient:
Express consent based on limited disclosure.
The physician may also have to obtain from the next of kin:
Express consent based on the knowledge of all relevant facts.
Figure 1-16. Disclosure/consent requirements under therapeutic privilege.
a. General. In emergencies, when consent is presumed to exist, there is a
parallel modification of the disclosure requirement. When there is no time to secure
consent, there is clearly no time to make disclosures. In Crouch vs. Most (N.M., 1967),
the court recognized that even when there is time to secure consent, emergency
situations may still leave time for only an abbreviated disclosure.