Don't Lie but Don't Tell the Whole Truth: The Therapeutic Privilege - Is it Ever Justified?

Abstract

This position paper will show that withholding information from a competent patient is a violation of the doctor's role as a fiduciary and is not ever justified. As a fiduciary, the doctor's relationship with his or her patient must be one of candour since it will be impossible for the patient to trust the doctor without regular candid information regarding the patient's condition and its outcome. Although the use of the therapeutic privilege has been recognized by several courts and is supported by scientific literature, I will explore why withholding information from a competent patient is a violation of the doctor's role as a fiduciary and as such is not legally or ethically defensible.While some courts have recognized the therapeutic privilege as a way of promoting patient wellbeing and respecting the Hippocratic dictum of "primum non nocere" {or first do no harm}, my position is that this is not ethically justifiable. Since information is a powerful tool for both harm and good, consciously withholding information from competent patients disempowers them and requires greater justification than patient welfare.Even though there is legal recognition of therapeutic privilege, it is not applicable on ethical grounds. In addition to disrespecting autonomy, withholding information from competent patients does not benefit them in the long run and can actually cause more harm than good. Consequently, a doctor who withholds information from a competent patient unless in the exceptional case of patient waiver violates the ethical principles of autonomy, beneficence and nonmaleficence.

Keywords: Therapeutic privilege; justification; truth telling.