Since 1980. the Supreme Court of Canada has handed down two judgments which have had a major impact on the law of informed consent in this country. These are Reibl v. Hughes and Hopp v. Lepp. The doctrine of therapeutic privilege, the subject of this article, was discussed in both cases. But, in order to examine this doctrine, first, a brief explanation of the Court's more fundamental ruling on the doctrine of informed consent is needed.

The Basic Structure of Informed Consent and Therapeutic Privilege

Citing and relying on the United States case of Canterbury v. Spence, the Supreme Court of Canada changed the reference point for establishing the standard to be used to determine the legally required scope of disclosure of information to a patient in order to obtain his or her informed consent. Previously, this standard had been set according to the information that “the reasonable physician in the same circumstances” would disclose. It became what “the reasonable patient in those circumstance? would want to know, which encompasses information concerning “the nature of the proposed operation, its gravity, any material risks and any special or unusual risks attendant upon the performance of the operation.”

A recent spate of allegations of sexual assaults by patients and staff upon mental patients has led to several lawsuits against hospitals. Research in this area has uncovered what appears to be a common but largely unacknowledged problem in mental hospital administration: hospitals sometimes fail to protect their mental patients from sexual attack. A study funded by the National Institute of Mental Health and conducted by the Institute for the Study of Sexual Assault, will provide some descriptive parameters of the problem, but the lawsuits themselves are already indicating directions for patient safety and hospital liability which can inform mental hospital staff and administration in preventing and dealing with complaints about sexual assaults within their facilities.

A number of indications suggest that we may be on the verge of another massive shift in the orientation of our system for the civil commitment of the mentally ill. After nearly one and one-half centuries during which commitment criteria were based on the mentally ill person's need for care and treatment, the late 1960s and 1970s saw a rejection of this standard in favor of criteria based solely on the individual's dangerousness to self or others. Now, in the 1980s, we are witnessing an outcry against dangerousness-oriented standards and the beginnings of a return to a need-for-treatment model.

As the media have recently reminded all Americans, biomedical capabilities that are being developed in this country and around the world present us with unfamiliar possibilities in human reproduction, from which flow unprecedented ethical, social and legal issues.

The transfer of a human embryo from one woman to another is one such possibility, though far from the only one. The time has come for a public examination of the full range of developments in reproduction from artificial insemination through in vitro fertilization to the freezing and banking of sperm, eggs, and embryos.

A half-page advertisement in the 1982 Yellow Pages of a large East Coast metropolis read: “The Podiatry Center. For information on foot health, call the following numbers….” The advertisement contained an address and some other information pertinent to foot health, but did not contain the names of any individual podiatrists.

Many podiatrists were angry be cause the “Podiatry Center” was not a hospital, podiatry school or any other kind of institution; instead, it was a doctors’ office. The advertisement, many podiatrists felt, was purposely misleading to the public, suggesting that the ‘Podiatry Center” was something more than just an office of individual podiatrists.

The institutional ethics committee an entity that many have long believed capable of solving many of the medical, legal, and ethical problems that exist in modern health care-is now being adopted by increasing numbers of institutions. Utilized sporadically since the 1970s, ethics committees began to receive renewed and heightened attention in late 1982. Cases such as those in Los Angeles where two physicians who were charged with first degree murder for removing, at the request of the family, intravenous feeding tubes, from a comatose, severely brain-damaged patient, the Infant Doe case from Bloomington, Indiana, and the more recent case of Baby Jane Doe from New York State, have generated an enormous amount of interest and publicity and provided a new impetus toward institutional ethics committees.

The past dozen years have witnessed an astounding rise in costs relating to the prevention and management of medical malpractice claims. Not surprisingly, a crisis of trust has also been building over the same period. Public interest in alternatives to traditional health care has increased as has the plethora of defensive medical procedures in hospitals. In addition, the past decade has seen the rise of such hospital professions as risk management, patient representation, quality assurance, and utilization review. The current high interest in “patient services” and “patient relations” is just that-current: a reflection of low priority until gathering crises made such interests relevant.

The cost crisis has led to both reactive and preventive behaviors on the part of hospital personnel. Reactive behaviors are those designed to respond to errors and claims after they occur. Examples are incident investigation, adjustment decisions, and insurance reserve manipulation. Preventive behaviors are designed to head off incidents before they occur, by identifying and reducing sources of clinical error, legal liability, and patient aggravation.

Several incidents involving the withdrawal of treatment and/or the ordering of supportive care for nursing home residents came to public attention in the spring and summer of 1981, raising serious concerns among advocates, attorneys, and health care professionals about the use of supportive care orders. It appeared that there was little consistency or consensus with respect to the meaning or application of the Supportive care concept.

In response to such concerns, a task force of interested individuals long term care staff and administrators, consumer advocates, medical, legal and social service professionals, and government agency officials was convened to identify and discuss issues raised by the use of supportive care. The task set by the group was to make recommendations and propose a set of guidelines for the provision of supportive care in long term care settings.

The major challenge facing the American health care system today is to devise a strategy for achieving three primary objectives simultaneously: (1) high quality, or excellence in standards of care, (2) balance, or equitable access to that quality care, and (3) some reasonable semblance of cost control in providing that quality care to everyone. Following World War II, the weight of government was thrown solidly behind the access and quality portions of the equation, first with the enactment of the Hill-Burton capital financing program and its accompanying community service obligations, and accelerating in the midsixties through creation of Medicare, Medicaid, and other financing and delivery programs entitling categories of individuals to health care benefits.