An Australian Perspective on the Doctor-Patient Relationship: A Comparative Prelude to Examining Duties of Disclosure in Surgical Innovation

By Bending, Zara J.; Tomossy, George F. | Health Law Journal, Annual 2011 | Go to article overview

An Australian Perspective on the Doctor-Patient Relationship: A Comparative Prelude to Examining Duties of Disclosure in Surgical Innovation


Bending, Zara J., Tomossy, George F., Health Law Journal


Surgical innovation presents a vital, albeit controversial, platform for scholarly discussion in health law and ethics. As recently observed in the Lancet, (1) many crucial medical advances, including organ transplantation, hip replacement and substituting heart valves, could not have occurred without the efforts of innovative surgeons. Nevertheless, achieving advances in biomedicine can also present substantial risks for patients, which may continue well beyond the initial stage of innovation as practitioners acquire and perfect new skills. Conflicts of interests were flagged as a particular point of contention, both with regard to patients' interests as well as the potential to compromise the integrity of the innovation process itself. (2) Within such an enquiry about the ethical limits of professional practice, it behoves us to consider the legal foundations of the doctor-patient relationship upon which regulatory and theoretical frameworks might be erected to reconcile the conflicting interests, roles and duties of innovative surgeons in relation to their patients.

This article will review the current Australian law on the nature of the doctor-patient relationship with a view to establishing a point of departure for further discussion on how to regulate innovation in surgical practice. (3) In providing this comparative perspective, it is submitted that neither approach is ultimately necessary. Arguably, rather than endorsing or opposing the current state of the law in Australia, the aim should be to reach beyond polarised legal paradigms and instead embrace a more interdisciplinary response that aligns with modern theories of healthcare governance. In the meanwhile, it is submitted that a concise restatement of the Australian position, contrasted with the Canadian approach, can provide a useful launching point for legal policy development.

A. The Contractual Characterisation of the Doctor-Patient Relationship

The Australian characterisation of the doctor-patient relationship derives from British common law tradition. Lord Scarman's ruling in Sidaway v Board of Governors of Bethlem Royal Hospital (4) stated it plainly: "[t]he relationship between doctor and patient is contractual in origin, the doctor performing services in consideration for lees payable by the patient". (5) As such, the doctor-patient relationship is essentially a commercial transaction, namely, "a private contract for supply of professional services". (6)

In general terms, "a doctor offers a patient diagnosis, advice and treatment", the objectives of which are "the prolongation of life, the restoration of the patient to full physical and mental health and the alleviation of pain" (7) While the majority of contracts pertaining to healthcare are not reduced formally in writing, this does not affect the validity of the agreement.(8) In the vast body of cases that have required courts to determine whether an alleged breach of a doctor-patient contract occurred, the existence of that contract has scarcely been in contention. Indeed, as noted by Lord Wilberforce in Liverpool City Council v Irwin, (9) the function of the courts has become "to establish what the contract is, the parties not having themselves fully stated the terms". (10) This is achieved by implying terms into healthcare contracts in accordance with legal principles outlined by Deane J in Hawkins v Clayton. (11)

In Australia, there are five general requirements for a legally enforceable contract: an intention to create legal relations, an agreement (otherwise phrased as "offer" and "acceptance"), consideration (the exchange of something of value by the parties), legal capacity (the capacity to understand the nature and effort of the agreement) and genuine consent (wherein any instance of fraud or duress will void the agreement). (12) Within the context of healthcare, the first three requirements are typically fulfilled by: (a) the presumption that there is an intention to create legal relations, given that the services provided by health workers takes place in a professional setting; (b) an assumption that the patient has accepted the health worker's offer to receive services by opting to receive treatment; and (c) where consideration may be "a payment, or promise of payment, of reward of submission by the patient, or an undertaking by the patient to submit, to the proposed treatment".

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

An Australian Perspective on the Doctor-Patient Relationship: A Comparative Prelude to Examining Duties of Disclosure in Surgical Innovation
Settings

Settings

Typeface
Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.