Situations in which the physician might opt to exercise therapeutic privilege:
A confused, frightened cardiac patient.
A hope-exhausted, chronically depressed, kidney-dialysis patient.
A patient with metastatic cancer who faces treatment alternatives with terrifying risks.
Figure 1-14. Therapeutic privilege.
c. Avoiding Risk of Any Counter Therapeutic Harm Whatsoever. The way
that therapeutic privilege is applied varies across legal jurisdictions. Some courts permit
physicians to withhold information if disclosure would cause any counter therapeutic
deterioration whatsoever (be it physical, psychological, or emotional). For example, if
the physician has a patient with a weak heart, should the physician risk a possible heart
attack by telling the patient about a suspected cancer? The physician may decide to
withhold this information, or may opt to announce it with carefully chosen words: "I see
a growth that I'm concerned about. We need to do a biopsy to check it out."
You have been referred to the orthopedics department for a knee injury (a very
common complaint in the Army). The physician, CPT Rosemary Smythe,
recommends knee surgery. She explains the risks and benefits and provides other
relevant information. But, she fails to mention that a knee brace would probably be
just as effective in correcting your condition as an operation.
You assume that you are getting the advice of an experienced physician. But in
fact, you are being treated by a physician who is just out of medical school and
completing her residency in the Army. CPT Smythe has a hidden agenda. Before
this young resident can take the orthopedic boards, she needs to have performed
ten knee reconstructions. The surgery she is proposing for you would be her tenth
In this example, CPT Smythe has withheld relevant information for her own
purposes, not to your benefit. The failure to disclose this information would
constitute a misuse of the therapeutic privilege. (There are, in fact, built-in
safeguards against such an occurrence. In the military, you can automatically get a
second opinion if your primary physician is a resident. If the second physician
confirmed the need for a knee surgery, your consent would be expected. For the
most part, you cannot refuse treatment required to make you fit for service.
However, if you refused knee surgery, but could still do your job to include the two-
mile run for physical training, you would not be discharged from service)