The Privilege of Information—An Examination of the Defence of Therapeutic Privilege and its Implications for Pregnant Women

Abstract

Abstract Though apparently in existence across common law countries, the defence of ‘therapeutic privilege’ receives scant judicial analysis in case law. The extent of its reach is unclear and its underpinning justification is shaky. Often it forms a throwaway remark or poorly explored caveat when the duty of a physician to disclose information is being examined, rather than receiving any detailed judicial scrutiny in its own right. Furthermore, despite references to it in case law, it is questionable if it has ever successfully been invoked as a defence in either England and Wales or Ireland. This piece examines this lack of clarity and the often-vague references to the existence of therapeutic privilege in both case law and professional guidelines, followed by a consideration of why the defence may be particularly problematic and unjustified in the context of childbirth and the immediate postpartum period. Considering the dangers of therapeutic privilege in pregnancy presents a timely opportunity to examine the issues with the use of the defence in all other healthcare contexts, focusing particularly on its impact on individual patient autonomy. Finally, this piece concludes by contending that therapeutic privilege ought to be abolished, if it truly exists at all.