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.”

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.

There is a growing concern in our society about the proper application of life-sustaining medical treatments. This concern has been stimulated by both the explosion in medical technology and the increasing emphasis on patients’ rights and autonomy in clinical decisionmaking. Technological progress enables us to prolong or sustain life, even when its “value” or “quality” is questionable. There is also increased concern, both within and outside the medical community, about the optimal process for making decisions to withhold or withdraw treatment.

Hospital ethics committees have been suggested as a possible solution to this problem. Although few hospitals have actually adopted ethics committees, and little is known about the way that they function or their effectiveness, there have been some recent efforts to study these issues. Despite the increasing recognition of patients’ wishes to know more about and to influence their medical care, there have been no reports about patients’ attitudes toward the role of ethics committees in decisionmaking.

In the first reported judicial interpretation of modern nursing practice acts, Sermchief v. Gonzales, the Missouri Supreme Court has decided that “new functions for nurses delivering health services” may evolve without statutory constraints.’ The notion that nurses in expanded roles are practicing medicine without a license was cast aside, as the court specifically held that nurses may render diagnosis and treatment in accordance with standing orders and protocols. While directly affecting only nurses in Missouri, the court's recognition of nursing as a profession with its own prerogatives and responsibilities has important implications for the future of nursing.

At issue was Missouri's nursing practice act which had been drafted with the assistance of members of the Missouri Nurses Association and passed by the legislature in 1975.