The truth, the whole truth, and nothing but the truth: Therapeutic privilegeM Shalak, MA Shariff, V Doddapaneni, N Suleman
Department of Internal Medicine, Lincoln Medical Center, Room 8-30 234E 149th St. The Bronx, NY, USA
Correspondence Address: Source of Support: None, Conflict of Interest: None DOI: 10.4103/jpgm.jpgm_1146_21
Source of Support: None, Conflict of Interest: None
Keywords: Advance directive, informed consent, medical ethics, palliative care, therapeutic privilege
Therapeutic exception or therapeutic privilege is defined as the withholding of relevant health information from a patient if non-disclosure is believed to be in his or her best interest.,, It is an exception to the general rule of informed consent and only applies when disclosure of the information itself could cause serious and immediate harm to a patient.,, Withholding medical information from a patient without his or her knowledge or consent is ethically unacceptable; however, under certain circumstances, therapeutic privilege can be utilized. Physicians should encourage patients to specify their preferences regarding goals of care ahead of time to avoid confusion when they are unable to communicate their wishes. We describe a case at our institution in which the therapeutic exception was argued and used to withhold information from a patient in the intensive care unit (ICU). The information being withheld was the news of the death of her husband. In medical practice, interventions require that a physician obtain informed consent for any procedure or treatment unless sufficient grounds of justification exist, such as necessity, authorization by the court, waiver, or a therapeutic exception. If the consent is not attainable from the patient or he or she wishes not to know about his or her medical condition, then the next of kin or the healthcare proxy will be asked to consent or to make decisions on behalf of the patient.
Therapeutic privilege is a well-recognized, but rarely if ever used, exception to informed consent. A healthcare professional may withhold information from a patient with regard to a diagnosis or the nature of a proposed treatment and the risks involved when the provider believes that disclosure of the severity of the condition or the drastic nature of the treatment indicated could be therapeutically detrimental to such a degree that his/her recovery may be compromised. Internationally, therapeutic privilege is accepted in many jurisdictions, including England, Netherlands, Australia, and Canada. The American Medical Association's (AMA) Code of Medical Ethics states that physicians may withhold information (i.e., when the patient is unconscious and when the benefit of treating the patient outweighs the harm) about a patient's diagnosis or treatment when disclosing it would constitute a serious psychological threat, so serious a threat as to be medically contraindicated. The concept of no harm needs to be justified appropriately when therapeutic privilege is used. As knowledge is a powerful tool, keeping it away from patients can put the physician in an ethical and legal predicament.
Our patient was a 56-year-old woman, with medical conditions including class 4 heart failure with reduced ejection fraction, diabetes mellitus, hypertension, and obstructive sleep apnea, who presented to our institution brought in by the emergency medical services for evaluation of acute delirium. She was found to be positive for influenza and started on treatment. At the time of initial presentation, our patient voiced feelings of sadness and depression, explaining that she felt this way since her husband had been admitted to our ICU for sepsis. It was after discussion was held with the patient's family members that it became apparent: not only was she suffering from feelings of depression but also she had become withdrawn from others and had stopped taking her routine medications for her comorbid conditions since her husband was hospitalized. Our patient was treated for sepsis in the setting of influenza, secondary to pneumonia, and was re-started on appropriate heart failure and diabetes treatments. Her condition deteriorated, and she was intubated for acute hypercapnic respiratory failure, at which time she was transferred to the ICU for further medical management (where her husband was also being treated).
On her eighth hospital day, she was medically extubated. On this same day, her husband had deteriorated and died. The palliative care team was consulted to assist with breaking bad news to her. A family meeting was first held with her adult children (decision makers) and extended family members to discuss how to convey this information to the patient. There was concern from her family members as well as the ICU team that having just been extubated, she may be too physically and emotionally frail to receive the news. Our concern was that if she heard that he had died, she may de-compensate medically, requiring re-intubation and further ventilator support. It was in fact her children who requested that the therapeutic privilege be utilized and that physicians withhold the information about her husband's death. This case was reviewed with our hospital's Ethics Committee, who were supportive of utilization of a therapeutic exception to withhold this information from her at the request of her family members. All discussions with the family members and palliative care team and ethics committee notes were documented in the patient's chart, and all consents were scanned electronically.
The patient was fragile, exhibiting ICU-related delirium and a tenuous respiratory status, requiring frequent non-invasive ventilatory support. She frequently told the staff and family members that she was 'seeing and hearing' her husband while she was being treated in the ICU after the time of his death. On her 11th hospital day, a meeting was held with family members, and the decision was made to pursue disclosing to the patient that her husband had died 3 days prior. Members of our palliative care team as well as the ICU team and family were present when the patient was informed of her husband's death. She was upset and grieving when she received the news.
This case highlights the ethical use of non-disclosure from both the palliative care and ICU teams. Non-disclosure (of our patient's husband's death) was justified as a therapeutic exception, which “allows the physician to withhold information from a patient if that information would psychologically harm the patient and thus imperil the patient's physical health.” From the time our patient was admitted to the hospital, growing concerns developed from both the palliative care and ICU teams of how medical decision making would be addressed. Neither our patient nor her husband had a written advanced directive. After discussion with their family members, it was also clear that neither patient had verbally addressed advanced directives with them prior to this hospitalization. Ideally, our patient would serve as her husband's surrogate and vice versa, but they were both incapable of doing so in this situation. It was their adult children who provided consents for interventions and therapies as the legal surrogates for decision making, in accordance with the Family Health Care Decisions Act. They opted to pursue all life-sustaining therapies for both parents, thankfully, as this eased any provider discomfort and conflict that would otherwise arise (e.g., if they had elected to forego any interventions for either parent).
The Hospital's Ethics Committee was consulted prior to implementing the therapeutic privilege. The argument provided in support of its use by the Ethics Committee was that 1) withholding of this information was a request initiated by her own family members; 2) this was a notably emotionally and physically frail patient (i.e., she presented with decreasing functionality for activities of daily living while her husband was admitted, had a declining performance status, and had stopped taking even basic medications for her own health conditions); 3) once the patient was deemed stable enough to receive the news, rapid disclosure would be made to inform her that her husband had died; and 4) there was no imminent decision making that would require disclosure for her to provide informed consent (e.g., acute need for disclosure to proceed with consent for autopsy or funeral planning).
This case is an example of the use of deception by not disclosing the husband's death to the patient immediately after extubation. In the medical profession, deception is considered wrong. Some consider withholding information the moral equivalent of lying. In the present case, we did not disclose sensitive information to the patient about her husband's death, and when she asked about her husband, we deferred answering those questions. As we did not directly lie to the patient (i.e., we did not tell her that he was still alive), we did not disclose the truth of the events that had occurred. There are two different opinions in the literature, one stating that there is a moral distinction between lying and deception and the second that favors them equal. Both opinions have defenses. Some regard deception as dishonest and morally equivalent to lying if not even worse because it creates a false belief, and with deception, the physician my lose the focus of his/her real intentions in the patient care process. A summary of opinions across academia generally conclude that all lying and all deception (verbal or non-verbal) are equal and wrong when used in medicine as these practices endanger trust, break rapport, and are unethical and disrespectful. We believe that while maintaining cognition of the ethical implications of non-disclosure, we were justified in withholding this information based on the medical principle of Primum Non Nocere (First, do no harm). Our reasoning for non-disclosure in this particular case is that the delay in informing the wife was brief and limited to a short state while she herself was recovering.
Our disclosure was quick, performed after a withholding period of 3 days. Withholding was performed at the surrogate's request, and there were no actions of decision making required during the period of non-disclosure. As stated, we wanted to allow the patient to come to terms with the events, both physically and emotionally, especially after she had demonstrated both depressive symptoms and delirium. We believe that withholding the information from the patient was the right decision at that moment when she was clinically unstable, and by using therapeutic privilege to disclose the information later, the benefits outweighed the harms.
A physician must always weigh beneficence against non-maleficence, balancing benefits against avoiding potential harms, putting into perspective both the benefit and the potential harm that may be caused. A potential justification for modifying the truth is that it is likely to produce a greater advantage for the patient and less harm, bearing in mind that harm includes direct trauma, anger, feelings of betrayal, and loss of trust in the healthcare system. We discussed our decision with the family who preferred the delay to break the news and supported our judgment of when and how to disclose. Our patient was informed about her husband's death 3 days later in the presence of family members. She cried, and she was upset for the loss of her lifelong companion, which are appropriate reactions of grief. She exhibited great self-awareness of her psychological instability while her husband was initially admitted. She acknowledged that prior to her hospital admission, she was feeling depressed, with her withdrawn behavior, and that she had stopped caring for herself in his absence. As she acknowledged her own frailty, she agreed with the request (made by her family members) to withhold this information and the rationale of waiting to disclose the information sooner. This is a unique case where we were challenged in balancing the necessity to inform the patient (principle of autonomy) and the desire to ensure the patient's well-being by minimizing suffering (principle of non-maleficence).
Rationale of Therapeutic Privilege: “The AMA Code of Medical Ethics states that physicians may withhold information from the patient about diagnosis and/or treatment when disclosing it would cause a serious psychological threat that makes it medically contraindicated.” Nevertheless, privilege should be used sparingly. In the United States, withholding medical information from patients without their knowledge or consent is ethically unacceptable. Non-disclosure carries the risk of tarnishing the doctor–patient relationship as well as the risk of losing rapport and trust; however, in select, unique situations, the medical relationship may require that the doctor consider the limits of the therapeutic processes, the circumstances, and the limitations of an individual patient. No guidelines exist for implementing therapeutic privilege; however, the courts have noted two additional exceptions to informed consent. The first pertains both when the patient is unconscious or otherwise incapable of consenting and when the benefit of treating the patient outweighs the harm of the treatment. Under these circumstances, one can argue that the physician is not required to obtain informed consent before treating but must do so as soon as it is medically possible. Examples include when a patient requests not to be told about the cancer diagnosis to preserve mental health or about the prognosis of the illness to keep hope as these will put the physician in a situation that requires a balance between the truth and deception. However, we believe that telling the truth is always the right thing to do.
Physicians are encouraged to consult with colleagues and hospital Ethics Committees if even considering withholding medical information from their patients. We suggest taking into consideration not only the sensitivity of the information that is being considered for withholding but also the urgency of the clinical situation and the nature, seriousness, and reliability of the information that is being withheld. In the future, we do not advise to use the same approach as it was difficult to hold the information from the patient by involving all the parties that participated in patient care. In our situation, the therapeutic privilege was used only temporarily for a few days and retracted when the patient was medically stable.
There is extensive literature challenging whether it is ever ethically appropriate to invoke a therapeutic privilege. The focus has been the tension between respecting a patient's autonomy and protecting a patient from harm when the physician perceives that the patient might have difficulty processing information. Given these significant potential harms and the moral duty to tell the truth, the justification for non-disclosure must be extremely compelling, as was in the present case, and should be individualized for each case.
The authors thank Matthew R Ding for reviewing the manuscript and his tremendous input into the content structure.
Declaration of patient consent
The authors certify that appropriate patient consent was obtained.
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Conflicts of interest
There are no conflicts of interest.