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Therapeutic Privilege: Variation on the Theme of Informed Consent

Published online by Cambridge University Press:  27 April 2021

Margaret A. Somerville
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Extract

Since 1980. the Supreme Court of Canada has handed down two judgments which have had a major impact on the law of informed consent in this country. These are Reibl v. Hughes and Hopp v. Lepp. The doctrine of therapeutic privilege, the subject of this article, was discussed in both cases. But, in order to examine this doctrine, first, a brief explanation of the Court's more fundamental ruling on the doctrine of informed consent is needed.

The Basic Structure of Informed Consent and Therapeutic Privilege

Citing and relying on the United States case of Canterbury v. Spence, the Supreme Court of Canada changed the reference point for establishing the standard to be used to determine the legally required scope of disclosure of information to a patient in order to obtain his or her informed consent. Previously, this standard had been set according to the information that “the reasonable physician in the same circumstances” would disclose. It became what “the reasonable patient in those circumstance? would want to know, which encompasses information concerning “the nature of the proposed operation, its gravity, any material risks and any special or unusual risks attendant upon the performance of the operation.”

Type
Article
Information
Law, Medicine and Healthcare , Volume 12 , Issue 1 , February 1984 , pp. 4 - 12
Copyright
Copyright © American Society of Law, Medicine and Ethics 1984

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References

Portions of this article, including the diagrams, rely upon a previously published article, Somerville, M.A., Structuring the Issues in Informed Consent, McGill Law Journal 26(4): 740 (1981).Google ScholarPubMed
Reibl v. Hughes, (1980) 114 D.L.R. (3d) I (S.C.C.).Google Scholar
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It is difficult to articulate the compass of the word “harm” in this definition, and I have made a decision not to attempt to do so. While this leaves the definition open to abuse, it is proposed that this is a risk which must be taken, because the alternative is a definition that is either too broad or too narrow. Further, while suffering is always a form of harm, the fact that the patient may suffer if a disclosure is made would not necessarily constitute the type of harm envisioned as being necessary for therapeutic privilege to apply.Google Scholar
Such a discretionary approach to defining harm would not be unique in the law; support could be found for it in, and analogies drawn from, other areas. For example, the law has never regarded all injury as damage for its purposes and hence compensable, provided that a tort has been committed. For instance, while damages can now be recovered for negligently inflicted “nervous shock,” they cannot be recovered in general, for some lesser entity which may be described as “mental distress” or “normal grief.” Where the law draws the line between these different categories of injury is discretionary and yet it does so, although not without criticism. Similarly, what will constitute physical or mental harm for the purposes of the application of therapeutic privilege must remain somewhat open.Google Scholar
This is to sacrifice some certainty for flexibility and means that physicians cannot be given ironclad guarantees or formulae which if applied will definitively establish that, in the circumstances, they can rely on the privilege. This may be perceived as unfortunate, but it is characteristic of the nature of professional judgment and the law which governs it. It is both the privilege and responsibility of the professional to have the liberty to exercise that judgment.Google Scholar
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