Therapeutic Privilege Is No Defence

Abstract

Therapeutic privilege is conceptualised as a defence to a negligence claim available to a medical practitioner, where the negligence alleged is a failure to warn. It affords a practitioner an opportunity to prove that the failure to warn was because of a belief that disclosure of a material risk would prove damaging to a patient. Since its endorsement by the High Court in 1992, the concept has received scant judicial attention. This article explains why. The legal landscape has changed and in terms of establishing normative causation, the nature of the duty to warn and its underlying policy provision supports a judgment strongly in favour of patient autonomy. Given the legal commitment to patient autonomy, together with the wider protection that a mentally competent patient has an absolute right to decide whether or not to undergo medical treatment, the concept of therapeutic privilege is redundant. Against an established claim in negligence, therapeutic privilege is no defence.