The ‘therapeutic privilege exception’. Residual paternalism in an age of informed consent post Montgomery or a valuable tool for healthcare professionals?

Originally formulated by courts in the United States of America, as an exception to informed consent, therapeutic privilege provides a healthcare professional with a complete defence of withholding information from a patient where it is believed that disclosure could result in serious physical or psychological harm. Whilst the exception is rarely referred to, it is even rarer for a defence to be successful and yet the exception survives. In 2015, the Supreme Court in England and Wales, in the Montgomery judgment retained therapeutic privilege, albeit in a limited form but still largely undefined. Now renamed therapeutic exception, this principle remains shrouded in uncertainty and renders the law unclear.

This thesis revises the recognised nomenclature of the ‘therapeutic privilege’, introducing the ‘therapeutic privilege exception’ as a reminder of the residual paternalism in healthcare. The development of the therapeutic privilege exception in a range of other domestic jurisdictions alongside the UK will be examined, and its inconsistency and lack of clarity will be highlighted. Close consideration will be given to whether the exception to the doctrine of informed consent may result, unintentionally, in a return to paternalism which will hinder patient autonomy. This phenomenon will be examined in light of qualitative research directed towards both GPs and clinical pharmacists’ clinical experiences of people with intellectual disability and those without.

This thesis will explore whether therapeutic privilege constitutes unacceptable paternalism, or whether there is a clear, defined role for therapeutic privilege in law. It will be argued that should the therapeutic privilege exception have a role, recommendations will clearly set out the elements of the therapeutic privilege exception so that healthcare professionals are not only aware of the existence of the exception but also of its limitations.