oa Comparative and International Law Journal of Southern Africa - A critical evaluation of the therapeutic privilege in medical law: some comparative perspectives

Volume 36, Issue 3
  • ISSN : 0010-4051



Medical interventions are usually justified by the patient's consent, but for such consent to be valid, it must be based on adequate and correct information. However, withholding distressing information from patients is a very old practice among doctors who believe in the ethical principle of non-maleficence. This practice enjoys a measure of legal endorsement in the form of a so-called I therapeutic privilege I which restricts the doctor's duty to inform where the disclosure of information could harm the patient. The ambit of the defence of therapeutic privilege is still uncertain in South African law. This article attempts to contribute to the debate whether or not this defence still has a place in our law, and if so, how its boundaries are to be defined. The criticism levelled at the therapeutic privilege is exposed and evaluated and certain submissions are made. The main submission is that therapeutic privilege should be acknowledged within very limited boundaries.

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