Section III: EXCEPTIONS TO DISCLOSURE
1-17. INTENTIONAL NONDISCLOSURE
The courts have recognized situations in which there is justification for less
complete disclosure, although consent must still be obtained. These exceptions to
disclosure include: therapeutic privilege, emergencies, patient incompetence, patient
waiver, and prior patient knowledge.
1-18. THERAPEUTIC PRIVILEGE
a. Introduction. Therapeutic privilege, the most controversial exception to the
disclosure requirement, allows that the physician may intentionally and validly withhold
relevant information. The decision to withhold such information must be based on a
"sound medical judgment" that to divulge the information would be potentially harmful to
a depressed, emotionally drained, or unstable patient.
therapeutic privilege: the physician's prerogative to withhold information if he
or she reasonably believes that the patient's mental or physical well-being would
suffer as a result of learning the information.
b. Protecting the Patient from Harm. If the physician determines that the
patient's anxiety level is such that a normal disclosure could be detrimental to the
effectiveness of the required treatment, therapeutic privilege may be exercised.
Therapeutic privilege, however, cannot be invoked solely out of a concern that
disclosure might cause the patient to refuse treatment. Depending on state law, the
physician may have to provide the omitted information to the next of kin, and obtain
concurrence from the relative on the patient's consent form. Although the physician
may have decided to withhold information about risks, he or she still must disclose other
information (for example, benefits) to the patient. Thus consent must still be obtained
from the patient. But, it is based on a limited disclosure of the relevant facts. Thus, the
patient ends up giving express consent based on limited disclosure. Although patient
autonomy is the goal of consent, there are circumstances in which patients may have a
deep need for a health care professional who assumes authority and with reassuring
confidence issues orders that can aid the patient's recovery. Human needs for such
authority are common in a medical context and complicate the process of reaching
decisions with patients. (Refer back to anecdote in para 1-13g: "Does the Patient Want
Autonomy or Beneficence or Both?")