Wrongs and Remedies in the Twenty-First Century

By Peter Birks | Go to book overview

5
The Fiduciary Relationship and its Application to Doctors and Patients

IAN KENNEDY

My interest in this essay is in the relationship between doctors and patients and, to the extent that the law becomes involved in this relationship, the conceptual tools which the law employs. I am concerned with professional negligence only to the extent that the tort of negligence is one such tool. I shall assert that the action in negligence is neither an appropriate nor successful means of mediating between doctor and patient. I shall then discuss a new conceptual device which some are advocating;1 the fiduciary relationship. In this discussion, you will be conscious of three sub-themes which will wind their way through my thoughts: the need to develop a legal framework which can best serve both patients and doctors; the need to determine how best the law may be developed, whether by courts, the legislature or by some form of agreed code; and, thirdly, since how really means by whom, the need to analyse the proper role for the medical profession in this process.


BACKGROUND

I begin with a proposition. It is that the doctor-patient relationship has special, perhaps unique, features. Principal among these is the very significant disequilibrium of power between the two parties. The patient is uniquely vulnerable, being not only ignorant of the expertise constituted by the practice of medicine but also, in most cases, ill and anxious or anxious about possibly being ill. By contrast, the doctor has expert knowledge. She also presumes to intrude on the privacy and confidences of the patient so as to do her job. And what she learns and discovers enhances her power, as, eg., the bringer of good or bad tidings.


Ethics

The doctor-patient relationship has, of course, long attracted the attention of those interested in applied ethics. Historically, the dominant scheme for

____________________
1
See eg. A. Grubb, "The Doctor as Fiduciary", ( 1994) Current Legal Problems, 311.

-111-

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