The therapeutic exception is an exception to the need for informed consent, rather than for any consent. It ostensibly allows the physician to withhold information from a patient if that information would psychologically harm the patient and thus imperil the patient’s physical health. The therapeutic exception was first broached in one of the early informed consent cases, Nishi v. Hartwell, decided in 1970. [ Nishi v. Hartwell, 473 P.2d 116 (Haw. 1970).]

Nishi involved consent to angiography for an elderly dentist. He was not told of the risks and was paralyzed as a result of the test. The defendants claimed that they did not tell him the risks because it was not the standard of care to disclose those risks, and because they were concerned he would be frightened and would refuse the test. At the time the case was decided, Hawaii used the community standard for informed consent, which requires plaintiffs to have expert testimony as to what the reasonable physician would have told the patient. The plaintiff had no expert, so the court dismissed the case. In doing so, however, it also discussed the duty of a physician to do whatever is best for the patient, citing older—pre–informed consent—cases as authority.

Thus the therapeutic exception to the need for informed consent arises from the 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. Even Hawaii, which specifically overruled Nishi and adopted the reasonable patient standard for informed consent, still says that the physician can defend with testimony that a reasonable physician would have withheld the information. [Carr v. Strode, 904 P.2d 489 (Haw. 1995).]

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 where the defendant physicians have tried to use it as a defense. They have stated that the alleged harm cannot be the refusal of the treatment. 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.