11th Greek Australian Legal and Medical Conference
Crete, Greece 2007

Therapeutic Privilege

Professor Brian Yeo and Ms Anna Yeo

In the landmark case in Australian medical law, Rogers v Whitaker (1992), Mason CJ and Brennan, Dawson, Toohey & McHugh JJ clearly indicated that a medical practitioner has a duty to warn a patient of the material risks inherent in a procedure. However, they qualified this duty by stating that it is ‘subject to therapeutic privilege’.

This paper explores the therapeutic privilege exception to the disclosure of information during the process of obtaining consent. The following issues are addressed:

  1. What is therapeutic privilege? What is the scope of this exception to the doctrine of informed consent?
  2. How has therapeutic privilege been clarified by the case law?
  3. Is there a future for therapeutic privilege in Medical Law and clinical practice?

Our particular interest in the topic of therapeutic privilege is the nexus between two particular duties bearing upon a doctor.

  1. The legal and ethical duty to warn, inform and advise the patient, and
  2. The medical duty to heal and to do no harm.

Therapeutic privilege is a common law doctrine, which has been recognised by the courts in Australia as well as in several other countries, as justification for withholding information about the inherent risks associated with a procedure where such disclosure may harm the patient’s welfare.

This professional discretion to withhold information is inconsistent with the legal duty of the doctor to disclose information to the patient. Therapeutic privilege therefore provides a doctor with a legal defence for non-disclosure motivated by the patient’s best interests.

The real medico-legal dilemma is what is in the best interests of the patient? Also when information is withheld in order to facilitate a patient’s wellbeing, who is most able to determine the patient’s best interests?

Defining therapeutic privilege is difficult. The specific components are not itemised in any of the Australian cases to date. However, some common elements can be extracted from the case law.

  1. The doctor’s assessment of the risk that the information disclosed would harm the patient must be judged objectively.
  2. The harm the doctor aims to avoid by non-disclosure may be psychological or physical.
  3. The doctor must be morally certain that the patient will need to undergo the treatment anyway.

Within each of these there is uncertainty and therefore a need for clarification. This is due in no small part to the fact that the defence has not been applied successfully in Australia since 1985 and has received limited attention in Australian courts since it was specifically endorsed as part of Australian law by the High Court in Rogers v Whitaker.

Let us return to the first element - that the professional discretion (which the doctor is entitled to under the doctrine of therapeutic privilege) is to be assessed objectively. It is therefore not whether the particular doctor assesses the risk to the patient’s health as such as to warrant non-disclosure, but rather if a reasonable doctor would assess the risk to be of the nature to withhold the information from the patient.

Loane Skene argues that it is not enough that the doctor sincerely believes that he or she is acting in the patient’s best interests.1 This is where the two professions may disagree. The notion that the ‘doctor knows best’ has been superseded in contemporary medico-legal jurisprudence by the notion of personal autonomy.

As King CJ notes in the case F v R,

“The paramount consideration is that a person is entitled to make his own decisions about his life and a doctor should not lightly make the judgment that a patient does not wish to be fully informed”.2

However, King CJ later acknowledges that there may be circumstances whereby a doctor’s discretion to fully disclose risks may be legitimate. He suggests that “when the patient’s health, physical or mental, might be seriously harmed by the information”3, this may warrant non-disclosure. It is apparent that the direction to doctors is unclear and remains ambiguous.

The High Court has articulated that the question as to whether the patient has been given all the relevant information to choose between undergoing and not undergoing the treatment is a not a question, the answer to which depends upon medical standards or practices.4 It is a question for the court.

However, the majority judgment in Rogers v Whitaker qualifies this statement by excluding cases where there is a particular danger that the provision of all relevant information will seriously harm a particular patient.5

Consequently, the doctrine of therapeutic privilege “reintroduces the medical paternalism which the High Court was keen to remove when it formulated the scope of the primary duty to disclose”.6

The second element of the privilege indicates that the doctor must predict that the patient is likely to suffer serious harm if informed of the material risk associated with a procedure. The scope of therapeutic privilege is to a large extent determined by the interpretation given to the term harm.7

It is evident from the case law that the harm to the patient’s welfare, which the doctor fears may result from the disclosure of information, must be serious. Furthermore Australian case law suggests that the type of harm may be physical or psychological.

The High Court held that the therapeutic privilege defence would be applicable where the provision of all relevant information would harm an “unusually nervous, disturbed or volatile patient”8.

In an early American case of therapeutic privilege, Canterbury v Spence, Robinson J stated that “it is recognised that patients occasionally become so ill or emotionally distraught on disclosure as to foreclose a rational decision, or complicate or hinder the treatment, or perhaps even pose psychological damage to the patient”9.

The degree of anxiety which results from the disclosure of unfavourable or disheartening news cannot be underestimated. However, in any claim for therapeutic privilege, the doctor must have a special reason for believing that the patient will be adversely affected by disclosure beyond a predictable level of anxiety that comes with imparting any bad news10. Making a decision that disclosure of information will pose a real threat to a patient’s welfare is an exceptionally difficult stand to take in most cases.

Surely a doctor is in the best position to determine the clinical status of the patient; however, are doctors in a position to accurately second-guess the patient’s values and can these skills develop with clinical practice?

The High Court in Australia has suggested a patient who is “inquisitive, persistent and anxious” prior to the operative procedure is not a patient to which non-disclosure would be acceptable11. However, fourteen years earlier, King CJ suggested that an ‘acutely depressed and dangerously suicidal’ patient, was judged to be sufficiently desperate, to legitimate the use of therapeutic privilege in the patient’s best interests.12 Consequently, it appears that patients suffering from pathological anxiety disorders are the only type of patient to whom the defence would usually apply.13

In the case of Tai v Saxon14, the Full Court of the Supreme Court of Western Australia rejected a plea of therapeutic privilege on the grounds that a doctor cannot call upon therapeutic privilege where there is a reasonable possibility that the patient may, in their anxiety, refuse the treatment. He continued that “it is only in cases where it is morally certain that the patient will need to undergo the treatment anyway that the therapeutic privilege can justify the doctor withholding information from the patient”.15

Templeton is critical of this decision. She argues for a broader notion of the privilege available to doctors. She suggests that if this decision is followed, “doctors will have no alternative but to counsel unusually anxious patients in exhaustive detail”. She adds that “surely there is a danger that patients who find it difficult to be objective will attach undue significance to extremely minor risks” which could result in “patients refusing treatment which would have benefited them, merely because of the way the doctor was forced by law to canvass the risks in detail, giving a false picture of their significance”16.

Templeton asserts that in its ‘flight from paternalism towards political correctness, the law has gone too far’17. However, this position misinterprets the right of being protected by the courts. By restricting the application of the doctors’ privilege the courts have bolstered patient self-determination. They have reiterated that full disclosure of all material risks is in the patient’s best interests because they can make decisions about what happens to them after they are armed with adequate and relevant information. The limitations that have been placed on the use of the defence of therapeutic privilege support this. The law recognises that a competent adult patient determines his or her own best interests.

Coetzee notes that, “perhaps the closest one can come to capturing the quintessence of the therapeutic privilege in a nutshell is to give a brief description of the circumstances giving rise to the need to recognise a defence of therapeutic privilege”18.

This is well illustrated in an American case from 1970 involving a dentist19. The dentist had a long history of hypertension and chronic renal disease. He experienced significant chest pain and was referred to a clinician who diagnosed a thoracic aortic aneurysm.

At the outset, the dentist was anxious. The significant chest pain no doubt exacerbated his anxiety. The clinician recommended thoracic aortography to which the dentist agreed. The clinician referred the patient to a radiologist who performed the angiogram by injecting dye into the aorta via a catheter inserted into an artery in the groin. Neither the clinician nor the radiologist informed the dentist of the possibility, albeit remote, that the contrast could cause spinal paralysis, even though both were aware of such a collateral hazard. The radiologist competently performed the procedure. However, after the procedure the patient became paralysed losing control of both bowel and bladder function due to a reaction to the contrast material used.

The dentist brought an action against both the clinician and the radiologist claiming damages suffered as a result of undergoing the thoracic aortography. In the midst of the litigation the dentist died. The dentist’s claim was rejected at first instance, so his wife appealed on behalf of her husband’s estate.

The clinician’s justification for non-disclosure was that the patient was very frightened and apprehensive, had serious heart disease with hypertension and had experienced severe chest pain. In addition it was argued that he would have had some knowledge of the risks involving an injection because he was a dentist and as such regularly gave injections.

The radiologist’s justification for non-disclosure was the psychological condition of the dentist. In addition the contrast material injected (Urokon) was the only satisfactory contrast material used regularly by other radiologists at that time and its use was associated with minimal chance of collateral hazard.

In his judgment, Judge Marumoto said that the doctors’ evidence had been uncontradicted and concluded that the non-disclosure was justified under therapeutic privilege.

It is of some interest to speculate what might have transpired had the radiologist, at the moment of injecting the dye into the artery, said to the patient “this injection may cause spinal paralysis and could result in your death”. And, should this have so accentuated the already severe anxiety and stress in the dentist that it precipitated an acute arrhythmia and a cardiac arrest from which he could not be resuscitated, could the radiologist then be liable for causing such undue stress from this disclosure?

Is there a future for therapeutic privilege in medical law and clinical practice? There is a pressing need for the courts to clarify the scope of the therapeutic privilege defence in Australia. The case law suggests that the privilege has not been used successfully in over 20 years. As Dr Mulheron observes, the defence of therapeutic privilege, “languishes, little used and rarely discussed”.20

Patient autonomy has forever changed the medico-legal landscape in which doctors operate. The ‘doctor knows best’ approach has been replaced with a proactive duty to fully disclose all material risks to a patient. The patient has a right to actively participate in the medical decisions concerning their body, without being controlled by other parties.

Doctors must be cognisant of the rights of patients. This must not simply be to appease fears prompted by threats of liability; it must be because they are willing to work with patients as equals in the decision-making process.

Materialization of the discourse of autonomy is a positive development. However, surely patient autonomy is not absolute. The doctrine of therapeutic privilege must remain in the best interests of the patient. The therapeutic privilege defence values the medical practitioners’ judgment that comes with training and clinical experience. The courts must confirm the place of therapeutic privilege in clinical practice and clarify its scope in medico-legal jurisprudence in Australia.

Endnotes

1. Skene, Law and Medical Practice: Rights, Duties, Claims and Defences (2nd Ed) (Butterworths, Sydney, 2004) at 6.69

2. F v R (1983) 33 SASR 189 at 193

3. F v R (1983) 33 SASR 189 at 193

4. Rogers v Whitaker (1992) 175 CLR 479

5. Rogers v Whitaker (1992) 175 CLR 479 at [489-490]

6. Rachael Mulheron, ‘The Defence of Therapeutic Privilege in Australia’ (2003) 11 Journal of Law and Medicine 201 at 204

7. Lodewicus Charl Coetzee, “Medical Therapeutic Privilege”, Submitted in part fulfilment of the requirements for the degree of Master of Laws, University of South Africa, Nov 2001 at p101

8. Rogers v Whitaker (1992) 175 CLR 479

9. Canterbury v Spence 464 F 2d 772 (1972) at 789 (Robinson J)

10. Coetzee (as above)

11. Chappel v Hart (1998) 195 CLR 232 at 278

12. Battersby v Tottman and South Australia (1984) 35 SASR 577 at 580

13. Ian Freckelton, “The new duty to warn” (1999) 24 Alt LJ 17 at 20

14. Tai v Saxon (unreported, Full Ct, WA, 8 February 1996)

15. Deborah Templeton, “Application of Rogers v Whitaker alarms Doctors” (1996) 4 HLB, p95, 96.

16. Deborah Templeton, p96

17. Deborah Templeton at 96

18. Lodewicus Charl Coetzee, “Medical Therapeutic Privilege”, Submitted in part fulfilment of the requirements for the degree of Master of Laws, University of South Africa, Nov 2001

19. Nishi v Hartwell 473 P2d 116 (Hawaii 1970). Our summary of this case is taken from Coetzee (as above)

20. Rachael Mulheron, ‘The Defence of Therapeutic Privilege in Australia’ (2003) 11 Journal of Law and Medicine 201 at 213