Therapeutic privilege

Therapeutic Privilege - The Rare Exception

• A rare exception to informed consent where a physician may withhold information if disclosure poses a direct, severe, and demonstrable threat of harm to the patient (e.g., precipitating a psychotic break or suicide).
• The physician must believe the disclosure would render the patient incompetent to make a rational decision.
• ⚠️ This privilege is not a tool to prevent a patient from refusing recommended treatment.
  • The potential harm must be independent of the patient's treatment choice.
  • Thorough documentation of the rationale is mandatory.

⭐ The most common incorrect use of therapeutic privilege tested on exams is a physician withholding information out of fear that the patient will make a poor or uninformed decision. This is considered paternalism, not a valid use of the privilege.

Justification & Limits - Walking the Tightrope

• Core Principle: A narrow exception to informed consent where a physician may withhold information if its disclosure would cause severe, direct, and immediate harm to the patient. This is a high-stakes judgment call.

• Justification Criteria:

  • Disclosure poses a significant threat of psychological distress.
  • This distress is so severe it could lead to irrational decisions, treatment refusal, or self-harm (e.g., suicide).
  • The anticipated harm from disclosure must outweigh the harm of withholding information.

• Strict Limitations:

  • Cannot be used paternalistically to coerce a patient into a preferred treatment.
  • Does not protect the physician from liability for negligence.
  • Meticulous documentation of the rationale is mandatory.

⭐ Exam Favorite: Therapeutic privilege is never a valid reason to withhold information when a patient explicitly asks for it. The patient's right to know supersedes the physician's judgment in this scenario.

Legal Standing - The Canterbury Effect

• Landmark Shift: The 1972 case, Canterbury v. Spence, was pivotal in shifting the legal standard for informed consent disclosure from a physician-centric to a patient-centric model.

• Old Standard (Physician-Based):

  • "Reasonable Physician Standard"
  • Disclosure was based on what a typical, competent physician in the same field would disclose (professional custom).

• New Standard (Patient-Based):

  • "Reasonable Patient Standard" or "Prudent Patient Standard"
  • Requires disclosure of information that a reasonable person in the patient's position would consider material to their decision-making.

⭐ Materiality of Information: Information is deemed "material" if a reasonable person would be likely to attach significance to the risk or cluster of risks in deciding whether or not to forgo the proposed therapy.

High‑Yield Points - ⚡ Biggest Takeaways

• Therapeutic privilege allows withholding information if disclosure would cause severe, documented, and immediate harm to the patient.
• This is a rare exception to informed consent, not a tool for medical paternalism.
• The potential harm must be more than mere distress; think precipitating a severe psychiatric crisis.
• Thoroughly document the specific rationale for invoking the privilege in the patient's chart.
• Courts interpret this privilege extremely narrowly; it is a high-risk legal defense.
• Always consider disclosing to a patient's surrogate as a viable alternative.