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Therapeutic Privilege Is No Defence.

Scott Davison1

  • 1Barrister, Victorian Bar, Melbourne.

Journal of Law and Medicine
|April 9, 2019
PubMed
Summary
This summary is machine-generated.

Therapeutic privilege, a medical defense against failure-to-warn negligence claims, is now redundant. Patient autonomy and established legal rights mean this defense offers no protection against negligence lawsuits.

Keywords:
breachcausation of damageconsentdefenceduty to warnmaterial riskmedical treatmentnegligencepatient autonomytherapeutic privilege

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Area of Science:

  • Medical Law
  • Patient Rights
  • Legal Precedent

Background:

  • Therapeutic privilege allows medical practitioners to withhold information if disclosure could harm a patient.
  • Endorsed by the High Court in 1992, its judicial application has been minimal.
  • The legal framework surrounding medical negligence and patient consent has evolved significantly.

Purpose of the Study:

  • To analyze the current legal standing of therapeutic privilege.
  • To explain the diminished relevance of therapeutic privilege in modern medical law.
  • To underscore the primacy of patient autonomy in medical treatment decisions.

Main Methods:

  • Legal analysis of case law and statutes.
  • Examination of the evolution of patient autonomy principles.
  • Review of negligence claims and defenses in medical practice.

Main Results:

  • The legal landscape now strongly favors patient autonomy.
  • Establishing normative causation and the duty to warn support patient rights.
  • Therapeutic privilege is legally insufficient as a defense against negligence.

Conclusions:

  • Therapeutic privilege is no longer a valid defense in established negligence claims.
  • Patient autonomy is a paramount legal principle in medical decision-making.
  • The concept of therapeutic privilege is rendered obsolete by current legal standards.