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Try out PMC Labs and tell us what you think. Learn More. 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. 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 doctor essay from patient truth whether withhold 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 doctor essay from patient truth whether withhold 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.
Are doctors ethically obligated or legally mandated to tell their patients the truth? According to Cobbs v. Grant, 8 Cal. The law insists, with a few exceptions, that those capable of consenting to treatment get the appropriate information disclosed to them.
A competent person is an adult of sound mind and body. Society of NY Hospital, NE 92 NY Is it ever justified to withhold information from competent patients? 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, doctor essay from patient truth whether withhold.
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 doctor essay from patient truth whether withhold 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. 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, doctor essay from patient truth whether withhold.
For example, in the famous medical negligence case of Asantekramo v. Attorney-General [] 1 G. 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. 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.
The use of the therapeutic privilege has been rejected by some courts in favour of truth telling. In Meyers Estate et al. Rogers78 D. at 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.
In the court's opinion, doctor essay from patient truth whether withhold, 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.
BainD. The court found that the use of the therapeutic privilege was unwarranted, regardless of the fact that the doctor was doctor essay from patient truth whether withhold 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 Greef4 SAa 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. Although doctor essay from patient truth whether withhold Court accepted that the risk of recto-vaginal fistula following hysterectomy was not high nor life threatening, the leakage of faeces through the vagina 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 truth-telling can be justified on the basis of autonomy, doctor essay from patient truth whether withhold, obligations of fidelity and the need for trust in the doctor-patient relationship according to Beauchamp and Childress. 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. 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.
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. 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. The legal recognition of therapeutic privilege can be traced to the landmark case of Doctor essay from patient truth whether withhold v.
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 2 S. In Sidaway v. Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital AC Lord Scarman referred to therapeutic privilege as justifying nondisclosure of treatment information in circumstances where the doctor reasonably believes disclosure of risk would be damaging to the patient or contrary to her best interests.
Rogers v. Whitaker CLR 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.
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. 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 T 5 a competent adult patient can make a treatment decision for a rational or irrational reason or for no reason at all, doctor essay from patient truth whether withhold. 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. 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 doctor essay from patient truth whether withhold 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 EWHC The following, according to Beauchamp and Childress are some moral arguments for limited disclosure.
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.
Because truth telling is at the core of fiduciary relationships, withholding information from patients erodes trust and isolates patients. This argument is based on the fact that doctors cannot know the whole truth. Even if they could know the whole truth, doctor essay from patient truth whether withhold, many patients would be unable to understand the information given.
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.
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, time: 13:43Don't Lie but Don't Tell the Whole Truth: The Therapeutic Privilege - Is it Ever Justified?
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