The doctrine of therapeutic privilege and its place in South Africa.
Contributor(s)McQuoid-Mason, David Jan.
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AbstractMaster of Law in Medical law. University of KwaZulu-Natal, Howard College 2014.
Therapeutic privilege is an exception to informed consent and used as a defence when the
doctor decides to withhold relevant medical information from the patient, because they
are of the opinion that such disclosure could harm the patient. This study explores and
provides a critical evaluation of the defence of therapeutic privilege since the boundaries
and the practical application in the South African legal system are uncertain, resulting in
many gaps in the law that require attention. Thus it is unclear as to when the defence is
A comparative investigation is undertaken and various arguments springing from ethical
and legal disciplines are also incorporated from which pertinent principles, requirements
and recommendations are suggested. There are a number of submissions, but the main
submission is that the doctor must look for alternatives before resorting to therapeutic
privilege. If all fail, then he/she can resort to the use of therapeutic privilege as a last
resort. However the reason for non-disclosure must fall within the precise best interest
standards stipulated and the physician must satisfy certain requirements to justify the
invocation of the defence in order to escape liability. The defence of therapeutic privilege
will only be legally justified when the above principles and requirements are met.