Can doctors lie to their patients? a constitutional inquiry into therapeutic privilege in Kenya

Abstract

This study focuses on the constitutional validity and the ethical justification of therapeutic privilege within Kenya’s healthcare system, focusing on section 8(a) of the Health Act. Therapeutic privilege allows healthcare providers to withhold medical information from patients if disclosure is believed to cause harm. While it is intended to protect vulnerable patients, the study argues that this provision is vague and lacks adequate safeguards, leading to potential violations of patients’ constitutional rights, including the right to life (Article 26), health (Article 43), dignity (Article 28), and access to information (Article 35) under the Constitution of Kenya. The study examines the conflict between medical paternalism and patient autonomy, highlighting the moral necessity of informed consent and based on the principles of justice, autonomy, nonmaleficence, and beneficence. Through a comparative analysis of legal practices in the United States and South Africa, the study highlights how other jurisdictions have narrowly defined and strictly regulated the application of therapeutic privilege. The insights are used to critique Kenya’s legal position and advocate for legal reform. The dissertation concludes that the current legal framework inadequately balances patients’ rights with clinical discretion and calls for a legislative amendment to section 8 of the Health Act. The proposed reform would introduce procedural safeguards, require justification, and oversight for withholding information, and prioritize transparency and shared decision-making in clinical practice.