The doctrine of therapeutic privilege and its place in South Africa.

Abstract

Therapeutic privilege is an exception to informed consent and used as a defence when the doctor decides to withhold relevant medical information from the patient, because they are of the opinion that such disclosure could harm the patient. This study explores and provides a critical evaluation of the defence of therapeutic privilege since the boundaries and the practical application in the South African legal system are uncertain, resulting in many gaps in the law that require attention. Thus it is unclear as to when the defence is legally justified. A comparative investigation is undertaken and various arguments springing from ethical and legal disciplines are also incorporated from which pertinent principles, requirements and recommendations are suggested. There are a number of submissions, but the main submission is that the doctor must look for alternatives before resorting to therapeutic privilege. If all fail, then he/she can resort to the use of therapeutic privilege as a last resort. However the reason for non-disclosure must fall within the precise best interest standards stipulated and the physician must satisfy certain requirements to justify the invocation of the defence in order to escape liability. The defence of therapeutic privilege will only be legally justified when the above principles and requirements are met.