Providing patients with information is fundamental to respecting autonomy. However, there may be circumstances when information may be withheld to prevent serious harm to the patient, a concept referred to as therapeutic privilege. This paper provides an analysis of the ethical, legal and professional considerations which impact on a decision to withhold information that, in normal circumstances, would be given to the patient. It considers the status of the therapeutic privilege in English case law and concludes that, while reference is (...) made to circumstances when information (primarily in relation to risk disclosure) may be withheld, further clarification is required on the status of therapeutic privilege. I suggest there has been shift in English law relating to the standard of information disclosure towards one set by the test of the reasonable, prudent patient. It is this shift that necessitates the existence of a therapeutic privilege which enables doctors to withhold information that would usually be given to the patient in order to prevent serious harm. I then explore the professional guidance in relation to information disclosure and how this relates to the legal position. There are strong ethical arguments in favour of disclosure of information to patients. In light of these, further clarification is required to identify and define the grounds on which this exception exists, the information that could lawfully be withheld and how this exception extends to rest of the health care team, particularly nurses. As such, explicit ethical and legal scrutiny of therapeutic privilege is needed in order to consider how this concept might be articulated, constrained and regulated. (shrink)

It has been claimed that beneath the government rhetoric of patient choice, no real choice exists either in law or in National Health Service policy. Thus, choice is considered to be a fallacy in that patients are not able to demand specific treatment, but are only able to express preferences amongst the available options. This article argues that, rather than considering choice only in terms of patient autonomy or consumer rights, choice ought to be seen as serving other functions: Choice (...) serves as a mechanism of destabilisation, i.e., as a lever for change. This is apparent at the level of patient and doctor, and at the level of patient and health authority, but even more so, at the level of government. Patient choice, rather than benefiting the individual, can have effects on a wider scale. It encourages change and reform in healthcare practices and in the NHS institutions. (shrink)

Until 2008, if doctors followed the General Medical Council's (GMC's) guidance on providing information prior to obtaining a patient's consent to treatment, they would be going beyond what was technically required by the law. It was hoped that the common law would catch up with this guidance and encourage respect for patients' autonomy by facilitating informed decision-making. Regrettably, this has not occurred. For once, the law's inability to keep up with changing medical practice and standards is not the problem. The (...) authors argue that while the common law has moved forward and started to recognise the importance of patient autonomy and informed decision-making, the GMC has taken a step back in their 2008 guidance on consent. Indeed, doctors are now required to tell their patients less than they were in 1998 when the last guidance was produced. This is an unfortunate development and the authors urge the GMC to revisit their guidance. (shrink)

Bioethics as an academic discipline comes into public discourse when real life “hard cases” receive media attention. Since cases of this sort increasingly often become the subject of litigation, the forum for debate can be a court of law, with judges as the final arbiters. Judges (unlike philosophers) are obliged to give final and definitive rulings in a constrained time period. Their training is in a type of discourse very different from moral philosophy, though still concerned with right and wrong. (...) This paper explores the differences between the tools and methods used in public legal debate and private academic discourse, and the different nature of the answers they produce. It attempts to suggest some ways in which bioethicists can better understand lawyers’ reasoning in cases of this sort, and how communication between bioethics and law might be improved. (shrink)