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The Therapeutic Exception

The therapeutic exception to the need for informed consent arises from a now-discredited view that information about risks of treatment or the existence of diseases such as cancer should be withheld from patients to foster the proper mental attitude for recovery. Most of the court opinions and legal articles dealing with informed consent take care to acknowledge that there may be circumstances when it is in the patient's best interest not to be informed of the risks of the proposed treatment. Although the courts constantly reaffirm the existence of the therapeutic exception, they uniformly reject it as a defense in specific cases.

The public debate that surrounded the question of telling patients about their cancer has made the courts wary about establishing standards that would deny patients information. But the courts have not explicitly overruled the cases that discuss the therapeutic exception; they have just refused to find that a therapeutic exception existed in the cases that have been before them. They have stated that the alleged harm cannot be the refusal of the treatment.

The courts are particularly loath to accept the therapeutic exception in cases in which the physician withheld information to encourage the patient to undergo treatment. In cases involving mental patients, courts have refused to accept the withholding of information about risks based on concerns that the patients would otherwise refuse the necessary treatments. In a case involving a patient under psychiatric care, the court held that it was improper not to tell the patient about the risk of tardive dyskinesia. The defendant physician argued that had the patient been told of the risk, he would have refused the treatment. The court rejected this argument, finding that the policy behind informed consent was precisely to allow patients to choose to refuse treatment. If the physician believes that a patient must be deceived into necessary therapy, the proper course is to obtain a guardianship.

Implicit in the narrowing of the basis for the therapeutic exception is the belief that if a patient is sufficiently psychologically fragile as to be harmed by the consent process, then perhaps that patient is not competent to consent to care. If a physician really believes that it would do significant harm to a patient to tell that person the risks of a proposed treatment, then it would be appropriate to consider petitioning the court to determine if that patient should have a guardian appointed to make medical decisions.

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