Thursday, January 30, 2014


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Informed Consent - Therapeutic Privilege Exception

Canterbury v. Spence

This famous informed consent case dealt a blow to the 'therapeutic privilege' standard of care under which physicians withhold some information from patient's for their own good.  Canterbury held that a physician must disclose material facts necessary for the patient to make his own decision on treatment. The following link leads to the full case:

It should be remembered that Canterbury was decided in Washington, D.C. and served only as a persuasive precedent for other jurisdictions outside the District of Columbia.  As a persuasive precedent, courts in the states could consider the reasoning in Canterbury but were not compelled to follow it as they would have been if they were citing a case decided in their own state supreme court.  Over time, courts and legislatures have generally adopted the Canterbury reasoning, but some jurisdictions may still have surprising variants as can be seen by what follows.

But then there is this:  Although Canterbury dispenses with the type of therapeutic privilege employed by Dr. Spence with his unfortunate patient, the court does not shut the door on therapeutic privilege completely.  The court in Cantebury expressly says:

"The second exception obtains when risk-disclosure poses such a threat of detriment to the patient as to become unfeasible or contraindicated from a medical point of view. It is recognized 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. Where that is so, the cases have generally held that the physician is armed with a privilege to keep the information from the patient, and we think it clear that portents of that type may justify the physician in action he deems medically warranted. The critical inquiry is whether the physician responded to a sound medical judgment that communication of the risk information would present a threat to the patient's well-being."  [Emphasis mine].

This is essentially the rationale adopted in the California case of Cobbs v. Grant [required reading] when that state court said:

"A disclosure need not be made beyond that required within the medical community when a doctor can prove by a preponderance of the evidence he relied upon facts which would demonstrate to a reasonable man the disclosure would have so seriously upset the patient that the patient would not have been able to dispassionately weigh the risks of refusing to undergo the recommended treatment."

The issue has not been surrendered entirely to the courts.  The legislature of the State of Florida, for example, has passed a statute, The Florida Medical Consent Law, that seems to allow for therapeutic privilege in some situations.

Note, also, that Florida uses a 'same or similar medical community' for establishing standards of care rather than the national standard adopted in the Shilkret case discussed at Shilkret.

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