While in the majority of cases ,providing a patient with information about her
treatment can be seen as a positive step enhancing her autonomy ,there may be
some situations in which those caring for her believe that information may be
withheld under what is known as the `therapeutic privilege' where this is in the
best interests of the patient. InSidawayLord Templeman said:
`some information may confuse ,other information may alarm a particular
patient... the doctor must decide in the light of his training and experience and
the light of knowledge of the patient what should be said and how it should be
said.'The application of this principle may be questioned in the light of recent medical
practice with the movement towards providing a patient with full information and
also in respect of what appears to be enhanced judicial willingness to scrutinise the
provision of information to patients. Certainly if a therapeutic privilege exception
does exist it needs to be exercised with extreme caution.
Informed consent
An alternative approach to the professional practice standard which has been
adopted in a number of other countries such as Australia ,Canada and the USA is
that of informed consent' ?e.g.Rogersv.Whittaker?1992),Reiblv.Hughes?1980)). Several states in the USA now require a standard of disclosure based upon the information which aprudent patient' would expect to receive. InSidawayLord
Scarman who delivered a dissenting judgment supported this approach ,saying
that the patient should be given such information as a prudent patient would wish
to know. While at that time the majority in the House of Lords rejected such an
approach ,today while the judiciary itself has still not explicitly imposed such a
standard ,in practice there has definitely been a movement towards the adoption of
such an approach. Health care professionals are now being directed to give
patients more information about certain types of treatment. There is a perceived
need for enhanced frankness and openness by health care professionals. One of
the issues emphasised in the debate around the unauthorised retention of human
material including organs at Alder Hey and at a number of hospitals up and down
the country has been the failure to obtain adequate consent from relatives for the
retention of such material [58]. In clinical research following the controversy of the
Griffiths inquiry the new research governance approach now emphasises the need
for informed consent [59]. In the inquiry into the events at Bristol Royal Infirmary,
Professor Ian Kennedy and his team have suggested a number of ways in which the
provision of information could be improved [60]. The report emphasises in
Chapter 23 the need for `respect and honesty' in health care. An important message
is the need for the health care professional±patient relationship to be seen as one of
partnership. Consent is also to be seen as a process:
`Trust can be only sustained by openness. Secondly ,openness means that
information be given freely ,honestly and regularly. Thirdly ,it is of fundamental
importance to be honest about the twin concerns of risk and uncertainty. Lastly
informing patients and in the case of young children their parents must be
regarded as a process and not as a one-off event.' [61]114 Nursing Law and Ethics