The concept of therapeutic privilege in relation to the Mental Health Act

Abstract

The main objective of this dissertation is to explore and discover the concept of Therapeutic Privilege in relation to the Mental Health Act, Chapter 525 of the Laws of Malta, as well as tackle grounds which can impact the decision to withhold information that in normal circumstances would be given to the patient. The concept of therapeutic privilege (TP) in medical law allows physicians to withhold certain information from patients if disclosing such information would cause harm or distress, impairing the patient's ability to make decisions. This concept is based on the idea of beneficence, where the physician's primary duty is to act in the best interest of the patient. However, the application of TP is not without controversy, as it can potentially impair patients' autonomy, undermine trust in the physician-patient relationship, and preclude patients from making informed decisions about their medical care. The legal right to know and the medical practitioner's duty to disclose are interdependent, and the patient's request for disclosure plays a crucial role in this relationship. The contours of TP are uncertain, and its application must be justified based on the danger and the patient's incompetence, rather than simply beneficence. In the context of the Mental Health Act (MHA), Chapter 525 of the Laws of Malta, the concept of informed consent is central to the relationship between the medical practitioner and the patient. The concept of TP is a complex and controversial issue in medical law, with potential implications for patient autonomy, trust, and informed decision-making. This research seeks to identify how other jurisdictions deal with its application based on cogent reasons relating to the welfare of the particular patient. The legal right to know and the medical practitioner's duty to disclose are interdependent, and the patient's request for disclosure plays a crucial role in this relationship.