determined by what that particular individual would have chosen if they were
802 Re F 1990 2 AC 1 [55].
803 Crisp R “Well-Being” 2015 The Stanford encyclopaedia of philosophy Zalta EN (ed)
http://plato.stanford.edu/archives/sum2015/entries/well-being/ (Date of use: 18 February 2016).
804 Chima 2009 Trans J Coll Med S Afr 41.
805 Dawson A “The determination of the best interests in relation to childhood immunization”
Bioethics 1467-1485.
806 Buchanan AE and Brock DW Deciding for others: The ethics of surrogate decision making (Cambridge University Press Cambridge 1989) 122.
competent to do so. This would of course apply to only previously competent patients. Further, if those patients were incompetent, what they would have chosen if they were in a position to do so. In practical terms it could be argued that where knowledge is available of that person’s wishes e.g. by means of an advance directive, or living will, or arguably corroborative anecdotal evidence. Those individuals’ best interests would be determined based on this. The central idea in the subjective view of best interests would be that, if an individual values certain types of beliefs e.g. religious beliefs as exemplified by Jehovah’s witnesses.
Actions that tend to take account of these views would be in my best interests and enhance my autonomy, while actions that ignore these beliefs would tend to compromise my best interests.807
2.9.4 The doctrine of therapeutic privilege
This is an exception to the IC doctrine, which allows a doctor under certain circumstances to withhold distressing information from a patient in his or her best interests. It is a controversial exception that could undermine the very essence of patient’s autonomy and self-determination.808 Generally, doctors or other HCPs are under a legal-ethical obligation to procure patients valid and fully informed consent before proceeding with treatment. At the same time, the HCP is bound by medical-ethical rules of the profession to heal or cure the patient if he or she can, based on the ethical principles of beneficence and non-maleficence, which bind the doctor to promote good and minimize harm.809 Therefore, the doctrine of therapeutic privilege creates an ethical conflict and moral dilemma for the HCP. The doctrine of therapeutic privilege is a somewhat controversial formulation, which attempts to resolve this dilemma-albeit unsuccessfully in most cases.
The doctrine of therapeutic privilege was recognized as an exception to the IC in Canterbury v Spence, 810 where the court held that: “Informed consent is a basic social
807 Buchanan and Brock Deciding for others 126-132.
808 Chima 2009 Trans J Coll Med S Afr 42.
809 Welz D 1999 SALJ 299-322.
810 Canterbury v Spence 18 (1972) 464 F 2d 772.
policy for which exceptions are permitted. These exceptions would include intellectual capability such as unconsciousness and extreme psychological threat […]”811
The precise use of the therapeutic privilege exception to IC though recognized by most common law jurisdictions differs in application in various countries. While some jurisdictions would permit a physician to withhold information, where it would be contrary to the therapeutic intent and lead to a deterioration in the patient’s condition. For example, when a patient with unstable cardiac arrhythmias would have his or her condition exacerbated by anxiety attendant on full disclosure of the risks of treatment.812 However, the exception in this case must be narrowly constructed so that it does not swallow up the general doctrine of IC and respect for patient’s autonomy.813
Others appear to permit the withholding of information only if the patients knowledge of that information would have health-related effects, by impairing the patients DMC to give informed consent.814 In terms of psychological distress as a basis for therapeutic privilege, Robertson815 has suggested four possible scenarios where information could arguably be withheld from the patient:
i. Where the information may be counterproductive in that the resulting psychological distress might prevent rational decision making;
ii. Where the patient is being treated for emotional or psychological problems and the added distress caused by disclosure may compromise such treatment;
iii. Where disclosure would be likely to cause serious distress or psychological harm. It would be in the best interests of the patient that the information should not be disclosed.
811 Canterbury v Spence 18 (1972) 464 F 2d 772 [para 47-49].
812 Mathew 2004 AMA Virtual Mentor www.virtualmentor.ama-assn.org/204/02/msoc1-0402.html (Date of use: 29 January 2008).
813 Welz D 1999 SALJ 299-322.
814 Chima Trans J Coll Med S Afr 42.
815 Robertson G “Informed consent to medical treatment” 1981 Law Quarterly Review 102-121.
iv. Where a doctor or HCP believes that the treatment is in the patient’s best interests and the patient might refuse consent if told of the risks.816
Further, some authorities have argued that the doctrine of therapeutic privilege can be legitimately invoked where the HCP has sufficient reasons to believe that disclosure would render the patient incompetent to give valid IC.817 To invoke the privilege under this condition, it is argued, does not conflict with the patients autonomy rights, because at this point the patient is incapable of making an autonomous decision.818 Other authorities contend that therapeutic privilege, as an exemption from IC is a frank exercise in paternalism.819 As outlined by Coetzee,820 the doctrine of therapeutic privilege may have the following negative impacts on the patient:
a. It undermines the patients’ rights to freedom of choice and self-determination.
b. It may undermine patients trust in doctors/HCP and fiduciary duty inherent in the doctor-patient relationship.
c. Applying the doctrine of therapeutic privilege may cause significant harm to the patient, where the patient eventually learns the truth despite efforts to shield him or her from it.
d. Non-disclosure can affect the patient’s well-being.
e. It may lead to dignity harm due to ‘loss of self-esteem’ when the true condition of the patient is later revealed, following initial non-disclosure.
f. The doctrine may afford an easy defence after the fact by a HCP of failure to obtain informed consent and thus may shield cases of medical negligence.
g. The privilege may be used to legitimise the doctor’s Hippocratic aversion to delivering bad news.
816 Robertson 1981 Law Quarterly Review 102-121.
817 Van den Heever P “Pleading the defence of therapeutic privilege” 2005 SAMJ 420-421.
818 Van den Heever 2005 SAMJ 420-421.
819 Mathew www.virtualmentor.ama-assn.org/204/02/msoc1-0402.html (Date of use: 29 January 2008).
820 Coetzee LC “A critical evaluation of the therapeutic privilege in medical law: some comparative perspectives” 2003 CILSA 268-288.
h. It may have cost implications in healthcare because the patients may not be given an opportunity to evaluate the cost/ benefit analysis of undergoing or refusing futile treatment, while on the hand , the HCP may proceed with such treatment based as it where on his own judgment of what would be in the patients best interests.
i. Generally, physicians lack the ability or empirical evidence to conclude on whether disclosure would be harmful to a particular patient. It has been argued that the therapeutic privilege exception rests on a false assumption, that patients would automatically reject and refuse the recommended treatment once they are apprised of the truth.821
It has been suggested that the doctrine of therapeutic privilege should be applied within very narrow boundaries because of its potential for abuse and overuse by HCPs.
According to the Presidents’ Commission on Bioethics,822 the potential for abuse arises from its inherent inconsistency with the patient’s right to know in order to authorize or refuse the proposed treatment. Further, the privilege may sometimes allow doctors and other HCPs to unethically manipulate patients into giving consent to the proposed treatment.823 Van Oosten has argued that the wider the scope the doctrine of therapeutic privilege is defined, the narrower the scope of IC and information disclosure and the difficulty of obtaining a valid consent which respects the patient’s autonomy.824
The American Medical association (AMA) Code of Medical Ethics suggests that physicians may withhold information about a patient’s diagnosis or treatment when disclosing it would pose such a serious psychological threat, as to be medically contra-indicated. However, the code also warns that the doctrine of therapeutic privilege should not be used to prevent patients from exercising their free choice.825 Berg and others maintain that it is likely the therapeutic privilege exception lends false legitimacy to the natural aversion of doctors to giving information to patients. Therefore, if the scope of this
821 Coetzee 2003 CILSA 282-287.
822 The President’s Commission Making healthcare decisions [93-99].
823 The President’s Commission Making healthcare decisions 96.
824 Van Oosten 1991 Med Law 31-41.
825 AMA Council on Ethics and Judicial Affairs Code of medical ethics: Current opinions with annotations (American Medical Association Chicago 2012-2013) [8.08-8.082].
privilege is not circumscribed it has the potential to swallow the HCPs ethical-legal obligation of disclosure, which may in fact permit HCPs to substitute their own judgment for that of patients in any instance of healthcare decision-making. They further suggest that because of the overlap between the doctrine of therapeutic privilege and the allowances provided by waiver and incompetence, the doctrine of therapeutic privilege should be abolished.826
In the context of South African jurisprudence, therapeutic privilege as an exception to information disclosure have been cited in cases such as the Castell case827 where Ackerman J recognized its existence as a defence against information disclosure in South African law, but did not provide a detailed analysis of its application in practice. According to Welz, the court in this case appeared to suggest that the existence of therapeutic privilege is incompatible with the current practice of enhancing patient’s autonomy and self-determination.828 Further, in SA Medical and Dental Council v McLouglin,829 Watermeyer J observed, “it may sometimes even be advisable for a medical man to keep secret from his patients the form of treatment he is giving them”, whilst in Richter v Estate Hamman,830 the court opined that “a doctor whose advice is sought about an operation in which certain dangers are attached is in a dilemma because if he fails to disclose the risks he may render himself liable to an action for assault. On the other hand if he discloses all the possible risks, he might well frighten the patient into refusing treatment which the doctor knows would be in the patient’s best interest to accept.”831 The full extent of the doctrine of therapeutic privilege has never been litigated in South African courts. The more recent NHA 2003 codified this exception into law by providing that “every healthcare provider must inform a user of the user’s health status except in circumstances where there is substantial evidence that the disclosure of the users heath status would be contrary to the best interests of the user.”832 Therefore, while the exception of therapeutic
826 Berg JW et al Informed consent: Legal theory and clinical practice 2nd ed (Oxford University Press Fairlawn NJ 2001) 80.
827 Castell v De Greef 1994 (4) SA 408 (C) [418].
828 Welz 1999 SALJ 321.
829 SA Medical and Dental Council v McLouglin (1948) (2) SA 355 (A) 366.
830 Richter and Another v Estate Hamman (1976) (3) SA 226 (C) 232.
831 Van Oosten FFW 1991 Med Law 31-41.
832 National Health 61 of 2003 s6 (1) (a).
privilege is now legally recognized in South Africa, it is still advisable that HCPs use this exception with caution subject to the following recommendations:
1. Non-disclosure or incomplete disclosure can only be justified in exceptional circumstances.
2. There must be a real threat of detriment to a patient’s physical or mental health.
3. Information could be withheld where the HCP judges the patients emotional state to be such that the patient is unable to use the information in arriving at a rational decision.
4. The HCP must bear the onus of justifying that inadequate or non-disclosure was based a sound clinical judgment.
5. The legal-ethical principles relating to the HCPs use of the therapeutic privilege exception must still protect the patient’s autonomy within the overall objective of achieving the goals of treatment and enhancing the patient’s dignity rights of self-determination.833
2.9.5 Waiver of information disclosure
The final criterion and perhaps least controversial exception to information disclosure is based on the concept of waiver. In the case of Miranda v Arizona,834 the US Supreme Court defined waiver as the voluntary and intentional relinquishing of a known right. In exercising waiver, a patient voluntarily relinquishes the right to information disclosure and IC by delegating the decision-making to either the HCP or another surrogate decision maker.835 In making such a decision, some patients may express a decision to trust their doctor’s professional judgment, whereas others may feel unable or lack the confidence to analyse the risk disclosed.836 Sometimes a waiver may occur or apply where a patient who was previously competent initiates an ‘advance directive’ or ‘living will’, which
833 Van den Heever 2005 SAMJ 420-421 see also Carstens and Pearmain Foundational Principles 316.
834 Miranda v Arizona (1966) 384 US 436 [475-76].
835 Beauchamp and Childress Principles of biomedical ethics [92-93].
836 Gordon E “Multiculturalism in medical decision-making” 1997 Ford Urb L J 1321-1362.
transfers the right to IC or healthcare decision-making to another person if, and when such a person is no longer competent to do so. The law generally allows patients to waive their right to give IC, so long as it made after full information disclosure, or where a patient chooses not have negative information disclosed due to personal cultural beliefs. In other words, the patient makes a decision not to make an informed decision. The waiver exception may also be applicable based on religious or other cultural beliefs, for example amongst Navajo Indians of North America who abhor ‘bad news’- this exception may enable them to revoke their right to hear bad news by relieving the HCP from the duty of disclosure.837
This exception has been legally accepted in some instances, in that courts have been of the opinion that doctors need not make disclosures of risks where the patient requests that he or she be not so informed.838 It has also been suggested by some ethicists that the bearer of rights can always waive that right.839 Others have argued that it is appropriate to recognize waivers of rights because an individual always enjoys a discretion when and whether to exercise those rights.840 It is possible that with regard to the issue of advance directives and living wills, that exercising these options allows the patient as the rights bearer to still be active in the decision-making process by choosing who will exercise those rights on his or her behalf, and that this enhances patient autonomy and right of self-determination. It has been said that patient consent can act as a waiver, for example, when a patient gives consent to a surgeon to operate. This does not actually give the surgeon the right to operate, since the patient retains the right to bodily integrity and sufficient control of his or her body to withdraw that permission at any time. In such situations, it may be argued that consent can operate as a waiver.841 Accordingly, the impact of the waiver exception is that if a waiver is properly obtained, the patient will remain the ultimate decision-maker. However, the content of this decision is shifted from the decisional level to the meta-decisional level, for example, the decision may change
837 Carrese JA and Rhodes LA “Western bioethics on the Navajo reservation: Benefit or harm?”
1995 JAMA 826-829.
838 Cobbs v Grant (1972) 502 P2d 1 12.
839 Brody B Life and death decision making (Oxford University Press New York 1988) 22.
840 Beauchamp and Childress Principles of biomedical ethics [92-93]
841 Maclean Consent to medical treatment and the competent adult 141.
from ‘I want this treatment or I do not want this treatment’ to ‘I do not want any information about the treatment I am about to receive.’842 However, the legal requirements for effective waiver during the informed consent process have never been clearly articulated by the courts. While it has been suggested that the court would generally approve of properly obtained and applied waivers, there is a concern that such waivers must be morally and legally acceptable. In the absence of clear judicial guidance, HCPs are advised to exercise this exception with appropriate caution.843 Further, it has been argued that a general acceptance of waivers of information disclosure and IC could lead to its abuse and overuse, because most patients have an inordinate trust in their doctors and a general acceptance of waivers could expose patient to exploitation and abuse.
Therefore, it is generally accepted that a rule could be established whereby waivers would be overruled, except where it has been analysed an approved by an independent body, such as a research ethics committee or hospital ethics committee. This procedure could minimize or generally eliminate the potential abuse of the waiver exception by HCPs and others.844
2.10 Understanding or comprehension of information disclosed
Although information disclosure and knowledge of that information are necessary for the comprehension of information, plain knowledge is generally not sufficient. Real comprehension would involve the ability to use information rationally. Therefore, for a patient to understand the information imparted by a HCP, the patient must not only be able to listen attentively to the HCP. Doctors must also appreciate that for information to have been communicated successfully, it needs not only disclosure, but the patient must also pay attention to that information, understand it, accept, retain the information, and then put that information to use in a rational manner.845 Some commentators have argued that the true test for comprehension is the patient’s capacity to understand, and that the
842 The President’s Commission Making healthcare decisions 33.
843 The President’s Commission Making healthcare decisions [93-99].
844 Beauchamp and Childress Principles of biomedical ethics [92-93].
845 The President’s Commission Making healthcare decisions [87-89].
HCP needs to ascertain that the patient actually has the capacity to understand the information conveyed in a non-technical language.846 Accordingly, in Re C,847 Thorpe J was of the opinion that there are three stages to a decision and understanding of information:
(i) to take in and retain the information, (ii) to believe it, and
(iii) to weigh that information balancing risks and needs.
Based on these criteria, the court ruled that a schizophrenic patient, who had refused amputation of his infected leg, had the capacity to understand information disclosed.848 Further, the British Medical Association (BMA)849 guidelines stipulate with regards to understanding that the patient must be shown to:
Understand in simple language what the medical treatment is, its purpose and nature and why it is being proposed
Understand its principal benefits, risks and alternatives
Understand in broad terms what will be the consequences of not receiving the proposed treatment
Retain the information for long enough to make and effective decision
Make a free choice (free from pressure or undue coercion)
This was further explained by Morland J in Smith v Tunbridge Wells850 as follows:
846 Francis R and Johnston C Medical decisions and the law (Butterworths London 2001) see also Kanj M and Mitic W “Health Literacy” Paper presented at the 7th Global Conference on Health Promotion, "Promoting Health and Development: Closing the Implementation Gap", Nairobi, Kenya, 26-30 October 2009
http://www.who.int/healthpromotion/conferences/7gchp/Track1_Inner.pdf (Date of use: 15 November 2017).
847 Re C (Adult: Refusal of medical treatment) [1994] 1 All ER 819.
848 Re C (Adult: Refusal of medical treatment) [1994] 1 All ER 819 [822].
849 British Medical Association BMA Consent Toolkit 2009
www.bma.org.uk/-/media/files/pdfs/.../consenttoolkitdec2009_full.pdf (Date of use: 20 February 2016)11.
850 Smith v Tunbridge Wells Health Authority 1994 5 Med LR 334.
When recommending a particular type of surgery or treatment, the doctor, when warning of the risks, must take reasonable care to ensure that his explanation of the risks is intelligible to this particular patient. The doctor should use language, simple but not misleading, which the doctor
When recommending a particular type of surgery or treatment, the doctor, when warning of the risks, must take reasonable care to ensure that his explanation of the risks is intelligible to this particular patient. The doctor should use language, simple but not misleading, which the doctor