This article examines the therapeutic justification for nondisclosure to determine whether this transfer of decision making power from the patient to the physician is justified by the potential threat to the patient's health. The primary judicial approaches to informed consent are discussed and the role of the therapeutic justification within each approach explained. The rules adopted to implement the therapeutic justification are in some instances broader than necessary in order to implement their objective. Refinements on the rules that could eliminate the overbreadth problem are noted. Regardless of such refinements, however, the validity of the therapeutic justification is questionable on both medical and legal grounds. The theory is examined first from the medical perspective to demonstrate that the medical profession lacks the expertise to predict whether disclosure of certain information to a particular patient will have positive, negative, or no therapeutic effect. In the absence of professional expertise, there is no justification for shifting decision-making authority to the physician. The legal basis for discounting a patient's autonomy in order to protect his or her health is then explored, revealing that this approach represents a deviation from the legal norm of protecting autonomy at the expense of health, and may even implicate the patient's constitutional right of privacy. Finally, it is recognized that protection of the patient's right to decide whether to receive potentially harmful information presents unique practical difficulties. Procedures protective of patients who would choose nondisclosure as well as those who would choose disclosure are proposed and analyzed.
Elizabeth G. Patterson,
The Therapeutic Justification for Withholding Medical Information: What You Don't Know Can't Hurt You, or Can It?,
64 Neb. L. Rev.
Available at: http://digitalcommons.unl.edu/nlr/vol64/iss4/7