Rachael Mulheron, ‘Has Montgomery Administered the Last Rites to Therapeutic Privilege? A Diagnosis and a Prognosis’

Abstract
Therapeutic privilege excuses a medical practitioner from having to disclose the material risks associated with medical treatment which the law would otherwise require, because it is reasonably considered that such disclosure would harm the patient’s health. Where successful, therapeutic privilege is a complete defence. However, it has suffered from an almost complete lack of judicial delineation in English law to date, and must rank as one of the most ‘obscure’ defences in this jurisdiction. The 2015 Supreme Court decision in Montgomery v Lanarkshire Health Board (Scotland) endorses the existence of therapeutic privilege, but does very little to clarify its scope or elements. Hence, the purposes of this article are three-fold. First, having canvassed its US origins, the article outlines the rare circumstances in which therapeutic privilege has applied in English law. Secondly, the author proposes three elements, and an analytical framework, for the defence, drawing upon a comparative analysis of English, Australian, and US jurisprudence. Thirdly, some policy difficulties with the defence are addressed, again from a comparative perspective.

Rachael Mulheron, Has Montgomery Administered the Last Rites to Therapeutic Privilege? A Diagnosis and a Prognosis, Current Legal Problems, Volume 70, Issue 1, 1 December 2017, Pages 149–188, https://doi.org/10.1093/clp/cux002.

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