d. Risk of Jeopardizing Success of Treatment or Impairing Decision -
Making Abilities. In some jurisdictions, the physician can withhold information if, and
only if, the patient's knowledge of the information would have serious health-related
consequences,for example, jeopardizing the success of treatment or critically impairing
relevant decision-making processes through psychological harm. In the example cited
above, if the physician thought that revealing the suspected cancer would result in a
heart attack, he or she might exercise therapeutic privilege. If there will be pain
associated with the proposed procedure, the physician must still disclose that
information to the patient, even though it might complicate or hinder treatment. The
patient can demand to know more about the pain and discomfort before giving consent.
In such a situation, some physicians, who simply wish to avoid the nuisance of an
emotional scene with the patient, may choose to exercise therapeutic privilege and
discuss the proposed procedure with the spouse or close relative of the patient instead.
This is not entirely fair to the patient because it deprives the patient, in some measure,
of the right to autonomous decision-making.
e. Risk of Rendering the Patient Incompetent. In the strictest interpretation,
the therapeutic privilege can be validly invoked only if the physician reasonably believes
that disclosure would render the patient incompetent to consent to or refuse treatment.
It might appear that protecting a patient from harm could conflict with the overall aim of
informed consent (respecting a patient's right to autonomous decision making). To
invoke therapeutic privilege under this last condition would not, in principle, conflict with
respect for autonomy because the patient would be in no condition to make an
autonomous decision if he or she were to become incompetent.
f. Limitations on Therapeutic Privilege. Courts have carefully limited
therapeutic privilege to avoid abuses. As stated earlier, it is not applicable when the
sole basis is physician concern that the information might lead the patient to avoid
LEVELS OF THERAPEUTIC PRIVILEGE
Depending on the jurisdiction, therapeutic privilege may be exercised when there is a
Any counter therapeutic harm (physical, psychological, or emotional) from
disclosure. (Most liberal interpretation.)
Jeopardizing success of treatment or impairing decision-making abilities.
Rendering the patient incompetent to consent or refuse. (Strictest application.)
NOTE: Therapeutic privilege cannot he exercised solely for fear that the patient will
refuse the therapy.
Figure 1-15. Levels of therapeutic privilege.