The Truth, the Whole Truth, and Nothing but the Truth: Therapeutic Privilege

The term therapeutic privilege is unfamiliar in the medical field and often sparks questions and discomfort about its ethical implications. Therapeutic privilege refers to the act of withholding of information by a clinician, with the underlying notion that the disclosure of this information would inflict harm or suffering upon the patient1. This is a case of a 56-year-old woman who presented to our facility in critical condition: sepsis with acute respiratory failure requiring intubation and mechanical ventilation. Prior to her admission, her husband had been admitted at our facility and was being cared for in the intensive care unit. On the same day that our patient was extubated, her husband had died. The palliative care team was consulted to assist with disclosing this information to the patient in light of her emotional fragility, her anxiety and concerns for her ability to receive such news given her own active illnesses.

The Privilege of Information—An Examination of the Defence of Therapeutic Privilege and its Implications for Pregnant Women

Though apparently in existence across common law countries, the defence of ‘therapeutic privilege’ receives scant judicial analysis in case law. The extent of its reach is unclear and its underpinning justification is shaky. Often it forms a throwaway remark or poorly explored caveat when the duty of a physician to disclose information is being examined, rather than receiving any detailed judicial scrutiny in its own right. Furthermore, despite references to it in case law, it is questionable if it has ever successfully been invoked as a defence in either England and Wales or Ireland. This piece examines this lack of clarity and the often-vague references to the existence of therapeutic privilege in both case law and professional guidelines, followed by a consideration of why the defence may be particularly problematic and unjustified in the context of childbirth and the immediate postpartum period. Considering the dangers of therapeutic privilege in pregnancy presents a timely opportunity to examine the issues with the use of the defence in all other healthcare contexts, focusing particularly on its impact on individual patient autonomy. Finally, this piece concludes by contending that therapeutic privilege ought to be abolished, if it truly exists at all.

Borderline personality disorder, therapeutic privilege, integrated care: is it ethical to withhold a psychiatric diagnosis?

Once common, therapeutic privilege—the practice whereby a physician withholds diagnostic or prognostic information from a patient intending to protect the patient—is now generally seen as unethical. However, instances of therapeutic privilege are common in some areas of clinical psychiatry. We describe therapeutic privilege in the context of borderline personality disorder, discuss the implications of diagnostic non-disclosure on integrated care and offer recommendations to promote diagnostic disclosure for this patient population.

Hope and therapeutic privilege: time for shared prognosis communication

Communicating an unfavourable prognosis while maintaining patient hope represents a critical challenge for healthcare professionals (HPs). Duty requires respect for the right to patient autonomy while at the same time not doing harm by causing hopelessness and demoralisation. In some cases, the need for therapeutic privilege is discussed. The primary objectives of this study were to explore HPs’ perceptions of hope in the prognosis communication and investigate how they interpret and operationalise key ethical principles. Sixteen qualitative semistructured interviews with HPs from different positions and experience, including doctors and nurses in four different departments (intensive care, oncology, palliative care, rehabilitation), were conducted in the Ticino Cantonal Hospital, Switzerland. The interviews were recorded, transcribed verbatim and analysed using thematic analysis. HPs defined prognosis and patient hope as interdependent concepts related to future perspectives for subjective quality of life. Two main factors allow HPs to maximise the benefits and minimise the harm of their communication: respecting the patient’s timing and sharing the patient’s wishes. Time is required to reframe needs and expectations. Furthermore, communication needs to be shared by HPs, patients and their relatives to build common awareness and promote a person-centred approach to prognosis. In this process, interprofessional collaboration is key: doctors and nurses are complementary and can together guarantee that patients and relatives receive information in the most appropriate form when they need it. Organisational aspects and the HPs’ emotional difficulties, particularly in coping with their own despair, are barriers to effective communication that need further investigation.

How should the ‘privilege’ in therapeutic privilege be conceived when considering the decision-making process for patients with borderline capacity?

Therapeutic privilege (TP) is a defence that may be available to doctors who fail to disclose to the patient relevant information when seeking informed consent for treatment if they have a reasonable belief that providing that information would likely cause the patient concerned serious physical or mental harm. In a landmark judgement, the Singapore Court of Appeal introduced a novel interpretation of TP, identifying circumstances in which it might be used with patients who did not strictly lack capacity but might be inclined to refuse recommended treatments. In this paper, we explore the conceptual and practical challenges of this novel interpretation of TP. We propose that more emphasis should be placed on forms of shared and supported decision-making that foster the autonomy of patients with compromised mental capacity while being mindful of the need to safeguard their well-being. The kind of privilege that doctors might need to invoke is one of time and supportive expertise to ensure a flexible, responsive approach calibrated to the individual patients’ needs. The provision of such service would extinguish the need for the novel TP proposed by the Singapore Court of Appeal.

Autonomy as a Goal of Psychotherapy

Personal autonomy describes the exercise of self-determination through informed and rational decisions that reflect an agent’s authentic values. The nexus between autonomy and psychotherapy is broad, with both respect for client autonomy through informed consent, and promotion of client autonomy through therapy itself representing key instances of the significance of autonomy in the consulting room. While inadequate disclosure of information poses a major threat to personal autonomy, so too do unjustified paternalism, coercion, and the injudicious use of therapeutic privilege. The capacity of psychotherapy to promote client autonomy, evidenced by more effective decision-making during periods where the risk of recurrent illness is high, is argued to be a key advantage of psychotherapy over treatment with medication alone. Ultimately, enhanced autonomy is a goal of treatment grounded in a more defensible conception of well-being for people with psychological disorder and, it is concluded, should be sought specifically through psychotherapy.

Derecho a no saber y privilegio terapéutico de menores de edad en patología de base genética

Analizaremos las figuras jurídicas “privilegio terapéutico” y “derecho a no saber”, circunscritas a la patología genética y a pacientes menores de edad. Para esto consideraremos, además de la normativa sobre consentimiento informado contenida en la Ley 41/2002 y sus normas complementarias, los recientes cambios legislativos relacionados con los menores y sus datos clínicos. La aprobación de la Ley Orgánica 8/2015, de 22 de julio, de modificación del sistema de protección a la infancia y a la adolescencia; y de la Ley 26/2015, de 28 de julio, de idéntico rotulado; incrementan la autonomía de los menores y refuerzan la figura del "interés superior del menor". Así mismo, la aplicación del "Reglamento General de Protección de Datos"; y de la Ley Orgánica 3/2018, de 5 de diciembre, de Protección de Datos Personales y garantía de los derechos digitales, apuntalan la autodeterminación informativa, también de los pacientes, y también de los menores de edad. El análisis de estas instituciones y su influencia en el contexto de la información clínica a los pacientes nos orientarán en la resolución de las eventuales colisiones de derechos y facultades, del menor por un lado y de sus representantes, en funciones de salvaguardia, por otro. We intend to analyse the legal institutions of “therapeutic privilege” and “right not to know”, restricted to genetic diseases and minor patients. In order to achieve this, we will consider, beyond the law regarding informed consent (Law 41/2002), the most recent changes concerning minors and their clinical data. The adoption of the Organic Law 8/2015, 22nd July, on amendment of the protection system for childhood and adolescence; and Law 26/2015, 28th July, with the same name; increases the minors autonomy and also strengthen the “best interest of the child”. Besides, the application of the “General Data Protection Regulation”; and Organic Law 3/2018, 5th December, of Personal Data Protection and guarantee of digital rights, reinforces the informational self-determination, regarding both patients and minors. The analysis of these two institutions and their influence in the context of clinical information will guide us in dealing with eventual conflicts among minors rights and the safeguards of their legal representatives.