Ghana Med J. 2008 Dec; 42(4): 156–161.
PMCID: PMC2673833
PMID: 19452024
AK Edwin
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Summary
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, truth telling, justification
Introduction
Are doctors ethically obligated or legally mandated to tell their patients the truth? According to Cobbs v. Grant, 8 Cal.3d 229, 104 Cal. Rptr. 505, 502 P.2d 1 (1972), “The patient, being unlearned in medical sciences, has an abject dependence upon and trust in his physician for the information upon which he relies during the decisional process, thus raising an obligation in the doctor that transcends arms-length transactions.” This makes the doctor-patient relationship a ‘fiduciary’ relationship. Since a fiduciary is “one who owes to another the duties of good faith, trust, confidence and candour,”1 the doctor's relationship with her patient must be one of truthfulness. The law insists, with a few exceptions, that those capable of consenting to treatment get the appropriate information disclosed to them.2 One such possible exception to disclosure is the ‘therapeutic privilege’.
“Therapeutic privilege' refers to the withholding of information by the clinician during the consent process in the belief that disclosure of this information would lead to the harm or suffering of the patient.”3 Although it is thought that the failure to tell the truth in the context of the doctor-patient relationship is an essential part of therapy,4 it is doubtful whether a doctor is proficient or justified in making a value judgment about what is best for a competent patient. A competent person is an adult of sound mind and body. As Justice Cardozo memorably puts it: “Every human being of adult years and sound mind has a right to determine what shall be done with his own body…” Schloendorff. v. Society of NY Hospital, 105 NE 92 (NY 1914).
Is it ever justified to withhold information from competent patients? No! While the use of the therapeutic privilege has been recognized by several courts and is supported in the literature, this paper will explore why withholding information from a competent patient is not legally or ethically defensible.
Although most of the cases cited in this paper are from foreign jurisdictions, the process of judicial decision making makes them relevant to Ghana. In resolving controversies, the courts usually look to their own jurisdictions to see if there is a binding precedent.
In law, a precedent or authority is a legal case establishing a principle or rule that a court may need to adopt when deciding subsequent cases with similar issues or facts. Precedents are intended to ensure uniformity and consistency in judicial decision making.
A binding or mandatory precedent is a precedent which must be followed by all lower courts. It is usually created by the decision of a superior court, such as the Supreme Court, Court of Appeal or High Court in Ghana. For instance, a decision by a High Court is binding on lower courts such as the circuit and district courts whereas a decision by the Supreme Court is binding on all courts. Although the Supreme Court has the power to reverse its own decision and thus create a new precedent in the case of a judicial review, this is rarely done. A persuasive or advisory precedent on the other hand is a precedent that needs not be followed under the doctrine of stare decisis (“to stand by things decided”) but is followed anyway. Judgments of courts in other jurisdictions where the facts and/or legal system are similar to the case at hand are commonly used as persuasive precedents.
In resolving controversies, if there is a binding precedent, then according to the doctrine of stare decisis, the lower court must adopt the reasoning in the higher court. For example, in the famous medical negligence case of Asantekramo v. Attorney-General [1975] 1 G.L.R. 319 (1975) in Ghana in which a woman admitted for a ruptured ectopic pregnancy developed gangrene of the right arm with subsequent amputation of that arm following a blood transfusion, Justice Taylor referred to a binding precedent of the Court of Appeal that indicated that special damages must be specifically pleaded.
Sometimes, though, there may not be any binding precedent as in a case of first impression in a particular jurisdiction. In such cases, courts make decisions by looking to other jurisdictions that have dealt with similar cases using persuasive or advisory precedents. A persuasive precedent may then become binding through the adoption of the persuasive precedent by a superior court. Again, in Asantekramo v. Attorney-General Justice Taylor referred to persuasive precedents in England and the United States of America regarding the nature of the question of duty which hospital authorities and their professional staff owe to patients in their care.
Countries that share the English Common Law tradition look to each other's jurisdictions (and even further afield in some cases) for persuasive or advisory precedents or authority. The important lesson for us here in Ghana, especially since whole sections of our laws are ‘English laws’ and judges in Ghana rely a lot on precedents from Britain and other countries with a similar legal system is that we cannot look on passively at what goes on in other jurisdictions, thinking that that will not happen here. Medical practitioners in Ghana need to take cognizance of judicial decisions in other jurisdictions that impact medical practice since persuasive precedents can easily become binding precedents if adopted by a superior court such as the Court of Appeal or the Supreme Court in Ghana.
Legal Arguments in Favour of Telling the Whole Truth
The use of the therapeutic privilege has been rejected by some courts in favour of truth telling. In Meyers Estate et al. v. Rogers (1991), 78 D.L.R. (4th) 307 (Ont. Gen. Div.) at 312., a 37-year-old woman died after intravenous injection of a contrast medium for a routine radiologic procedure. The physician intentionally withheld information about the risks associated with contrast media. The Ontario court rejected a radiologist's claim of therapeutic privilege as a defence against failing to warn the patient of the risks of intravenous contrast medium injection. Citing Reibl v Hughes, infra, Justice Maloney stated that “the Supreme Court of Canada has not, in Reibl, adopted or even approved the therapeutic privilege exception in Canada”. In the court's opinion, the therapeutic privilege exception to the doctor's duty of disclosure should not be part of Canadian law because of its potential to erode informed consent.
In another Ontario court case, Pittman Estate v. Bain (1994), 112 D.L.R. (4th) 257 (Ont. G.D.), a doctor was found negligent for failing to warn a patient and his wife that the patient had contracted HIV from a prior blood transfusion. The court found that the use of the therapeutic privilege was unwarranted, regardless of the fact that the doctor was concerned about the patient's ongoing depression. The important argument here is that the patient's right to be informed takes precedence over the doctor's exercise of discretion.
In the South African case of Castell v De Greef, (1994) 4 SA 408, a case of unsuccessful prophylactic double mastectomy and breast reconstruction to reduce the risk of breast cancer, the court held that a doctor is obliged to warn a patient consenting to treatment of material risks inherent in the proposed treatment. The implication of this finding is that the patient's decision should hold even if the medical profession is of the view that the doctor should refrain from bringing the risks to the patient's attention because it is in the patient's interest to have the treatment.
By adopting this standard, Castell indicates that there is no justification in invoking the therapeutic privilege even when the doctor thinks that the patient is likely to reject treatment.
In Teik Huat Tai v. Saxon, (1996) WASC, No 23/95, the Western Australian Supreme Court found a doctor negligent in failing to advise that recto-vagin*l fistula could occur following hysterectomy and vagin*l damage. Although the Court accepted that the risk of recto-vagin*l fistula following hysterectomy was not high nor life threatening, the leakage of faeces through the vagin* may be a very unpleasant experience affecting a woman's self-esteem. The court therefore rejected the defence of therapeutic privilege based on the fact that the patient was very nervous and had a history of depression.
These arguments show that individual autonomy is fundamental to the common law and is the basis for disclosure to patients. It is also the reason for the judicial overrule of the therapeutic privilege. Truth telling shows respect for patients; promotes patient wellbeing; furthers patient life choices; reduces the risks of harm to patients and reduces the doctor's liability.
Moral Arguments in Favour of Telling the Whole Truth
Moral arguments in favour of truth-telling can be justified on the basis of autonomy, obligations of fidelity and the need for trust in the doctor-patient relationship according to Beauchamp and Childress.5
Respect for autonomy
The ethical principle of autonomy which protects patient self determination goes hand in hand with truth telling. Lying to and deceiving patients breach the autonomy of individuals and interferes with the doctrine of informed consent. Although clinicians commonly argue that most patients do not wish to hear the truth, there is, in fact, very little evidence for this. In a study by Sullivan, Menapace and White6, for instance, 99% of patients who participated in the research stated that they want to know the truth about their condition. The same majority, 99%, also thought that doctors had an obligation to inform patients of their condition while 97% said they would want to be told if they had a life-threatening illness. Withholding information from patients impairs their decision making capacity. Even when treatment options are limited, and prognosis is grave, knowing what to expect allows patients to prepare for what lies ahead instead of being overtaken by events.
Obligations of fidelity and promise keeping
Although doctors' obligations of fidelity and promise keeping mean that they should be truthful to their patients regarding their conditions, sometimes, the desire to ‘protect patients from harm’ makes doctors less truthful with patients. Despite the argument that the motivation behind this is often well meant, “a conspiracy of silence usually results in a heightened state of fear, anxiety and confusion - not one of calm and equanimity.”7 It is more likely that misguided evasion or frank dishonesty may add considerably to a patient's distress and prolong the necessary adjustment process thereby causing harm and violating the ethical principle of non-maleficence. The doctor-patient relationship, at its very essence, relies on honest communication. Lying to or misleading patients undermines the veracity of the individual doctor and casts serious doubt on the trustworthiness of the medical profession as a whole.8
Need for trust in doctor-patient relationship
Trust has been considered arguably “the fundamental virtue at the heart of being a good doctor”.9 As a result, patients trust doctors to provide them with the information on which they can base a decision about whether or not to proceed with a procedure or treatment. Because trust cannot be built on untruthfulness, it is imperative that doctors truthfully disclose information to patients. This will not only foster and maintain trust in the doctor-patient relationship; it will also help patients to understand and deal with the difficult situations they may be facing thereby benefiting them and upholding the ethical principle of beneficence.
Why Legal Arguments in Favour of Not Telling the Whole Truth Fail
The legal recognition of therapeutic privilege can be traced to the landmark case of Canterbury v. Spence (1972) 464 F 2d 772, 789 (DC Cir), in which the plaintiff developed paraplegia following surgery after his doctor failed to inform him that there was a 1% risk of paralysis. Canterbury justified therapeutic privilege by recognizing that “patients occasionally become so ill or emotionally distraught on disclosure as to foreclose a rational decision”. In essence, where in the doctor's opinion, the patient is likely to be harmed by the disclosure; it is legal to withhold such information.
Similarly, in Reibl v. Hughes (1980) 2 S.C.R. 880., where the appellant developed a stroke and became paralyzed after surgery to remove an occlusion in an artery to decrease the future risk of a stroke, the Canadian Supreme Court recognized situations in which a doctor may be justified in withholding information from patients. According to Chief Justice Laskin, “a particular patient may, because of emotional factors, be unable to cope with facts relevant to recommended surgery or treatment and the doctor may, in such a case, be justified in withholding or generalizing information as to which he would otherwise be required to be more specific.”
In Sidaway v. Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital (1985) AC 871., the British House of Lords dismissed the plaintiff's suit where a neurosurgeon had failed to warn the patient of a less than 1% risk of spinal cord damage, which actually occurred.
Lord Scarman referred to therapeutic privilege as justifying nondisclosure of treatment information in circ*mstances where the doctor reasonably believes disclosure of risk would be damaging to the patient or contrary to her best interests.
Rogers v. Whitaker (1992) 175 CLR 479., the High Court of Australia affirmed the trial court's award of damages to the defendant, who in spite of her expressed specific concern that her “good eye” not be harmed, was not informed by the plaintiff of the possibility of sympathetic ophthalmia, which left her essentially blind. However, the court also held that a doctor's duty to disclose is subject to a therapeutic privilege which may justify withholding information that would harm the patient's health.
Finally, in Chester v. Afshar [2005] 1 AC 134, although a neurosurgeon who failed to forewarn a patient of a 1–2% risk of the cauda equina syndrome and paralysis following back surgery was judged to have failed in his duty to obtain informed consent, the House of Lords nonetheless found that “there may be wholly exceptional cases where objectively in the best interests of the patient the surgeon may be excused from giving a warning.”
These legal arguments in favour of the therapeutic privilege are not tenable because they utterly contradict the doctrine of informed consent. If patients are not fully informed, how can they give an informed consent? The fact that patients may be so ill or emotionally distraught on receiving certain information is no reason to withhold information or lie to competent patients. Neither is the ‘best interest’ factor nor irrational choice an adequate justification for invoking the therapeutic privilege. Human beings get upset every now and then especially during severe illness or difficult choices but that does not mean that their ability to make a rational decision is impaired.
In any case, as recognized in Re T5 a competent adult patient can make a treatment decision for a rational or irrational reason or for no reason at all. If this were not so, there would not be any need for informed consent. All that would have been necessary for adequate patient care would be for patients to do what their doctors said.
Furthermore, emotional factors are ever present in serious disease but this does not mean that they are negative or that they will impair rational decision making. As Côté2 indicates, because many doctors may feel that emotions are “bad,” unscientific, or unpredictable, they may overestimate the degree to which patients find information troublesome. Doctors may also have an “ill-perceived conception of psychic injury” that supposedly follows an upsetting disclosure and may therefore equate upset with harm. Ignorance and a lack of appreciation for the usefulness of patients' emotional states may also cause some doctors to overlook the positive aspects of disclosure. Sensitively disclosing information to patients on the other hand may actually prevent the psychological harm that has been used as an excuse to withhold information from patients.
In any case, it is the unusual patient who when informed of the serious risks of a procedure or intervention would not be disturbed. Nervousness is therefore no reason to withhold information from a patient. The crucial factor in disclosing potentially disturbing information is how the disclosure is made. In the apt words of Justice Simon in Al Hamwi v Johnston and the North West London Hospitals NHS Trust (2005) EWHC 206., in explaining risks of treatment, “a clinician must take reasonable care to give a warning which is adequate in scope, content and presentation, and take steps to see that the warning is understood.”
Why Moral Arguments in Favour of Not Telling the Whole Truth Fail
The following, according to Beauchamp and Childress are some moral arguments for limited disclosure.
Therapeutic privilege
“The therapeutic privilege permits physicians to tailor (and even withhold) information when, but only when, its disclosure would so upset a patient that he or she could not rationally engage in a conversation about therapeutic options and consequences”.10 The moral basis of invoking the therapeutic privilege is for doctors to do what is beneficial for the patients and to avoid inflicting harm on them. If disclosure of certain information is deemed harmful to patients, the doctor may be justified in withholding such information. This enables doctors to uphold rather than violate the ethical principles of beneficence and nonmaleficence.
This argument is, however, not acceptable. There is evidence to support the notion that informing patients truthfully about life threatening diseases does not result in a greater incidence of anxiety, despair, sadness, depression, insomnia or fear.11 On the contrary, informed patients have better communication with relatives and staff and greater trust in the care provided. Because truth telling is at the core of fiduciary relationships, withholding information from patients erodes trust and isolates patients.
Health care professionals cannot know the ‘whole truth’
This argument is based on the fact that doctors cannot know the whole truth. Even if they could know the whole truth, many patients would be unable to understand the information given. As such, “in some circ*mstances, withholding the truth to protect hope can be considered a morally acceptable option when truth-telling has the potential to destroy hope's therapeutic effects”.12
Many doctors revert to nondisclosure and non-discussion in the face of uncertainty about patients' prognosis and the best course of treatment, thereby closing off opportunities for shared decision making.13 Uncertainty, however, cannot justify non disclosure. In the face of uncertainty, it is important for doctors to be extra vigilant to ensure that patients are given the information they need in order to participate in a collaborative decision making about their care. Effective disclosure will protect patient trust in the long run and help patients manage information about uncertainty. Even when treatment options are limited, knowing what to expect allows patients to prepare for what lies ahead.
Some patients do not want to know the truth about their condition
This argument is premised on the assumption that some patients do not want to be told the truth about their conditions. In essence, the patient waives her right to information. It is vital to distinguish the therapeutic privilege from patient waiver. In the case of therapeutic privilege, it is the doctor who is entrusted to determine that the disclosure of information mandated by the informed consent doctrine would cause the patient harm, whereas in the case of waiver the patient determines that he would be harmed by disclosure. Thus waiver can be viewed as the patient's ‘therapeutic privilege’ not to know.4
Although many patients would like to know the truth, the rights of those who do not want to know should also be respected. In a study by Marzansk, “on telling the truth to patients with dementia”, a significant proportion of the participants (30%) preferred not to be informed about their illness for a variety of reasons. 14 It is important, nevertheless, for doctors to explore why such requests are made in order to understand and interpret the request carefully and tailor the information to the patient's needs. Mostly, though, non disclosure occurs not because patients have explicitly made such requests but because doctors wrongly assume patients would not like to know. Such assumption is paternalistic and tramples on patient autonomy
Implications of Position Taken
In terms of the law, the legal arguments in favour of truth telling can serve as a guide to legislation specifying the need for doctors to refrain from use of the therapeutic privilege. The only exception to truth telling is the exceptional case of patient waiver.
In terms of morality, deceiving patients cannot be justified under any circ*mstance. Lying to patients and failing to inform patients of particular risks or outcome violate the principle of autonomy and undermine the doctrine of informed consent. It does not benefit patients and can actually harm them and erode trust when they find out that they have been deceived. In essence, withholding information from patients violates the principles of autonomy, beneficence and nonmaleficence.
In terms of behaviour, knowing that there are legal consequences for non disclosure may make more doctors candid with their patients. Although disclosing unfavourable news is never a pleasant task for any doctor, it is an essential part of the doctor-patient fiduciary relationship. The unpleasantness of breaking bad news to patients which sometimes persuades physicians that patients are either not interested in knowing or that disclosure would be harmful, thereby, invoking the therapeutic privilege can be reduced through training. Baile et al. describe a straightforward and practical protocol that meets the requirements defined by published research on breaking bad news. This protocol, known as the SPIKES protocol, consists of six steps for breaking bad news, and is a specialized form of skill training in physician-patient communication.15 This approach is intended to help physicians break bad news to patients in a straightforward and empathic manner while providing support to patients, an essential psychological intervention for distress. In particular, the SPIKES protocol makes the difficult task of breaking bad news easier and is therefore recommended as a means of improving physicians' behaviour in disclosing unfavourable news to patients.
Conclusion
Although 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. While patients may not have the medical expertise of their doctors, they are nonetheless in a better position to determine what is in their best interest based on the information made available to them. This is supported by Cobbs v. Grant1:
A medical doctor, being the expert, appreciates the risks inherent in the procedure he is prescribing, the risks of a decision not to undergo the treatment, and the probability of a successful outcome of the treatment. Once this information has been disclosed, that aspect of the doctor's expert function has been performed. The weighing of these risks against the individual subjective fears and hopes of the patient is not an expert skill. Such evaluation and decision is a nonmedical judgment reserved to the patient alone. A patient should be denied the opportunity to weigh the risks only where it is evident he cannot evaluate the data, as for example, where there is an emergency or the patient is a child or incompetent.
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.5 Although 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.
Acknowledgement
I am grateful to Dr. Erin Egan, Visiting Lecturer and Assistant Professor Neiswanger Institute for Bioethics and Health Policy, Loyola University Chicago Stritch School of Medicine for her inputs and corrections.
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