A Critique of Canadian Jurisprudence on the Therapeutic Privilege Exception to Informed Consent
Bibliographic record
Abstract
The Supreme Court of Canada’s landmark decisions in Hopp v Lepp and Reibl v Hughes furnished a general analytical framework for informed consent actions that remains fully intact today. This article sets its gaze on a specific aspect of the framework, dubbed “therapeutic privilege,” that permits physicians to deviate from their general duty to disclose material, treatment-related risks to competent patients. Specifically, the privilege allows information about material risks to be withheld or generalized if physicians believe their patients are “unable to cope” with receiving such information. It is argued that the Supreme Court’s terse and vaguely-articulated exception to truth telling disempowers patients by depriving them of their decisional autonomy and undermines the trust relationship that lies at the heart of the physician-patient relationship. In view of these hazards, the article explores the post-Hopp and post-Reibl jurisprudence to determine how therapeutic privilege has been interpreted and applied by Canadian courts. It finds that the contours of the privilege continue to be ill defined, the Supreme Court’s formulation of the privilege has been interpreted by some courts in a manner that is disrespectful of patient autonomy, and no judicial action has been taken to meaningfully narrow the scope of the privilege. While the privilege may be needed in truly exceptional cases, the courts must establish stringent limitations on its application in order to minimize intrusion on patients’ right of medical self-determination and reduce the potential harm to the covenant of trust between patients and physicians. Specific recommendations regarding such limitations are provided.
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How this classification was reachedexpand
Full frame machine prediction
Teacher imitationNot calibrated prevalence, not ground truth. Human validation pending. The Gemma side is a direct model label for every work in the frame, read from the title-only record. The Codex side is a classifier learned from the 10,348 direct Codex labels and calibrated to design-weighted sample rates; fields without enough sample support carry no Codex call. Candidate is the union of the two sides; consensus is their intersection. These outputs are machine_predicted_unvalidated and are not human labels.
Distilled classifier scores by category (both heads)
| Category | Codex | Gemma |
|---|---|---|
| Metaresearch | 0.025 | 0.043 |
| Meta-epidemiology (narrow) | 0.001 | 0.001 |
| Meta-epidemiology (broad) | 0.001 | 0.002 |
| Bibliometrics | 0.004 | 0.005 |
| Science and technology studies | 0.025 | 0.071 |
| Scholarly communication | 0.016 | 0.007 |
| Open science | 0.006 | 0.006 |
| Research integrity | 0.022 | 0.035 |
| Insufficient payload (model declined to judge) | 0.004 | 0.001 |
Machine scores (provisional)
The two teacher heads of the student model, read on this work. A score orders the frame for review; it never asserts a category, and the validation status ships verbatim with every row.
Baseline scores from an immature model (maturity gate not passed, 7 training rounds). Scores rank; they never assert a category.
score_only:v0-immature-baseline · verbatim from the scoring run: score_only means the number may rank works, and no category label ships from itClassification
machine, unvalidatedMachine predicted; a candidate call from one source (direct Gemma or distilled Codex), not a consensus.
How this classification was reached, model by model and score by score, is at the end of the page under "How this classification was reached".