An Australian perspective on the doctor-patient relationship: a comparative prelude to examining duties of disclosure in surgical innovation.
Subject: Fiduciary duties (Comparative analysis)
Medical records (Access control)
Informed consent (Laws, regulations and rules)
Surgical technology (Laws, regulations and rules)
Authors: Bending, Zara J.
Tomossy, George F.
Pub Date: 01/01/2011
Publication: Name: Health Law Journal Publisher: Health Law Institute Audience: Professional Format: Magazine/Journal Subject: Health; Law; Sports and fitness Copyright: COPYRIGHT 2011 Health Law Institute ISSN: 1192-8336
Issue: Date: Annual, 2011 Source Volume: 19
Topic: Event Code: 930 Government regulation; 940 Government regulation (cont); 980 Legal issues & crime Advertising Code: 94 Legal/Government Regulation Computer Subject: Government regulation
Legal: Jurisdiction: Australia; Canada
Accession Number: 291893060
Full Text: 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". (13) The latter two requirements, however, are potentially more problematic, given the general vulnerability of patients due to their diminished state of health, as well as specific dilemmas concerning minors, unconscious persons and the mentally ill. (14)

The traditional contractual model of the doctor-patient relationship is entrenched in Australia by the landmark High Court decision of Breen v Williams. (15) Beyond its seminal importance as a test case for a patient's access to medical records, Breen demonstrated the High Court's commitment to the contractual paradigm. The Court was not persuaded by arguments for the expansion of duties and corresponding liabilities under a wholly fiduciary model, and explicitly refused to follow the ratio of the Supreme Court of Canada in McInerney v MacDonald. (16)

B. The Facts of Breen v Williams

In 1977, Julie Breen (the appellant and patient) underwent cosmetic surgery to have silicone breast implants inserted. She later developed bilateral breast capsules and consulted the respondent, Dr Williams, in 1978, who performed an operative procedure in which he neither inserted implants nor removed the existing ones. Ms Breen had corresponded with Dr Williams about the possibility of having the implants removed; however, he performed no such surgery. It was subsequently discovered that silicone gel had leaked from the implant in Ms Breen's left breast, which required corrective surgery.

The appellant later became involved in a class action lawsuit in the United States against Baxter, Bristol-Myers Squibb Co, 3M and Downing Corning (manufacturers of the silicone gel implants who were deemed to have not adequately warned of the risks associated with their products). (17) A condition of settlement was that Australian claimants were required to "opt in" to the class by 1 December 1994 for a share of the $US4.2 billion settlement. This required claimants to provide copies of medical records to support their claims. As Parkinson notes, (18) a court order could have ordered such records to be produced, but the expense of such a process and the time involved, given the number of litigants, led Breen's solicitors to propose a test case to determine whether a legal right to such records could be asserted by a patient without the need for a court order. When Dr Williams was approached to allow Ms Breen access to her medical records, he was advised that access be conditional on her providing him with a release from any claim arising from his treatment of her. Ms Breen refused to accept these terms and initiated litigation against Dr Williams.

Breen submitted that her right to access her medical records arose primarily from four grounds: (a) a patient's proprietary interest in their information; (b) an implied term in the healthcare contract; (c) a fiduciary relationship between doctor and patient; and (d) a general "right to know". At first instance, Bryson J dismissed her claim, ruling that she had no right of access to her medical records. Bryson J's decision was upheld by a majority of the New South Wales Court of Appeal. Leave to appeal to the High Court was granted where the action was ultimately unsuccessful on all grounds.

C. Breen v Williams: The Contractual Model Upheld

As there was no formal contract between the appellant and respondent, the court was invited to imply an obligation under the healthcare contract requiring doctors to act in the best interests of their patients. It was proposed by the appellant that a right to access and copy records was inherent to the acceptance of this term.

In prefacing its response, the High Court unanimously agreed that the primary duties of a doctor are regulated under contract. Notably, Gummow J acknowledged that "traditionally, there has been a contractual relationship" (19) and Gaudron and McHugh JJ premised their judgement by stating that "[t]he doctor-patient relationship is contractual in origin" before citing the aforementioned passage from Sidaway v Governors of Bethlem Royal Hospital. (20) Further, the Court was in agreement that, in the absence of a special contract, doctors' duties under contract are limited to advising and treating the patient with "reasonable skill and care." (21) Per Dawson and Toohey JJ: "[e]ssentially, the relationship between doctor and patient is a contractual one whereby the doctor undertakes to treat and advise the patient and to use reasonable skill and care in doing so". (22) This was reinforced by Brennan CJ who affirmed that "[i]n the absence of special contract between a doctor and a patient, the doctor undertakes by the contract between them to advise and treat the patient with reasonable skill and care". (23) The Chief Justice ruled that this duty did not extend to giving the patient access to their medical records other than in situations where to do otherwise would prejudice the health of the patient. On the facts, this was not the case for Ms Breen.

The court then refused to imply a contractual term requiring doctors to act "in the best interests of the patient", noting a general rule that an implied term is founded upon the presumed or imputed intention of the parties. Referring back to the judgement in Sidaway, the court agreed that it would be unlikely that a doctor would willingly assume a contractual duty to act in the "best interests" of his or her patients at all times. Accordingly, Gaudron and McHugh JJ submitted that even if the court were to find in favour of recognising such an obligation, it would apply exclusively to the context of medical care and not impose a general obligation to disclose records for any purpose. Brennan CJ supported this view, stating that an implied term to the healthcare contract "is limited by the subject matter to which the contract relates, namely, benefitting the health of the patient." (24) Being that Ms Breen's reasons for demanding access centred on her involvement in litigation and not a matter of health, she would have likely failed on this standard as well.

The implication of a term obliging a doctor to act in the patient's best interests (along with the alleged arising right to access and copy) was also deemed to be beyond what was necessary to give effect to the operation of the contract. Hence, the appellant's claim of an implied contractual right to access was rendered altogether unsuccessful.

D. Breen v Williams: A Fiduciary Model Rejected

The appellant's arguments based on the existence of a fiduciary duty were the most compelling as this was the only ground upon which Kirby P was prepared to find for the plaintiff in his dissenting Court of Appeal judgement, finding that a doctor owes a fiduciary duty to his of her patients which entitles the patient to inspector obtain copies their medical records. (25)

Generally speaking, "the law defines a fiduciary as a person entrusted with power or property to be used for the benefit of another and legally held to the highest standard of conduct". (26) A fiduciary is a person who stands in a position of trust and confidence vis-a-vis another in such circumstances that the fiduciary is bound, in matters falling within the scope of the fiduciary relationship, to place the interests of the principal before his or her own personal interests.

Two preeminent Australian cases concerning fiduciary duty are Hospital Products Ltd v United States Surgical Corp (27) and Chan v Zacharia. (28) In Hospital Products, Gibbs CJ ruled that an individual occupying a fiduciary position "may not use that position to gain or profit or advantage himself or herself for the benefit of a third person, nor may he or she obtain a benefit by entering into a transaction in conflict with his or her fiduciary duty without the informed consent of the person to whom he or she owes the duty". (29) Additionally, Mason J found that:

The conception laid down in Hospital Products was subsequently developed in Chan v Zacharia where Deane J established that:

While the courts have not offered a definitive test for the classification of a fiduciary relationship, (32) there are several types of relationships that have generally been deemed fiduciary, including: agent and principal, trustee and beneficiary, solicitor and client, broker and client, employee and employer, director and company, and partners and joint venturers. (33) As Dawson and Toohey JJ observed in Breen, these relationships may be characterised as "relations of trust and confidence". (34) Although the categories for fiduciary relationships are not closed, it is rare that fiduciary relationships are determined to exist beyond the accepted categories. (35)

The "trust and confidence" elements inherent in the doctor-patient relationship have been used as the primary means to define the entire relationship as fiduciary in some jurisdictions. Notably, in the Canadian case of Rowe v Grand Trunk Railway, (36) the court found that:

Further, "the rule stands upon a general principle, applying to all variety of relations in which dominion may be exercised by one person over another. (38)

The above conception of the physician-patient relationship was affirmed in the seminal Canadian case, McInerney v MacDonald: (39)

McInerney was concerned with a doctor's refusal to provide a patient access to consultants' reports and records she had received from other physicians who had previously treated the patient, citing a potential ethical conflict as she viewed these to be the property of those physicians. The patient's application for a copy of her entire medical file was successful. The Supreme Court of Canada ruled unanimously that since a doctor is in a fiduciary relationship with their patients, this may, "in all but a small number of circumstances", (41) give rise to a right of access to medical records. La Forest J reasoned that this is desirable as the trust reposed in the doctor by the patient mandates that the flow of information operate both ways, thus strengthening the patient's faith in their treatment and enhancing "the trust inherent in the doctor-patient relationship". (42) Where a patient's access to their records is denied, Canadian precedent dictates that the onus lies on the physician to demonstrate why non-disclosure was necessary.

It is worth noting that, since McInerney, the Supreme Court of Canada has revisited its position on fiduciary relationships outside established categories. In the 2009 case of Galambos v Perez, (43) the Supreme Court of Canada unanimously clarified that not all power-dependency relationships are fiduciary in nature. Further, it ruled that the Court of Appeal had erred in finding that "a fiduciary duty could arise absent some undertaking on the part of the fiduciary to act in the interests of the other party." (44) In May of 2011, in a similarly unanimous verdict, the Supreme Court affirmed its reasoning in Galambos in Alberta v Elder Advocates of Alberta Society. (45) Therein, the Court ruled that: (a) vulnerability alone is insufficient to support a fiduciary claim; and (b) fiduciary obligations will not be imposed on a party purely on the basis that they have chosen to act in the best interests of another. (46)

It was specifically upon the reasoning in McInerney that the appellant in Breen mounted her claim for a right to access based on fiduciary duty. The High Court of Australia unanimously rejected the invitation to follow the Canadian case, citing fundamental incompatibilities between how fiduciary principles had developed in their respective jurisdictions. Significantly, Canadian courts have referred to the fiduciary duty as a positive obligation to act in the best interests of another whereas the traditional position adopted by Australian law characterises fiduciary obligations as limited to avoiding a conflict between one's duty and personal interest.

Beyond conceptual incongruity, the High Court objected to the recognition of positive rights in fiduciary relationships in the view that it would have an undesirable effect on existing categories of fiduciary relationships. The Court was concerned that this would open the floodgates to attaching a fiduciary obligation to provide access to records in any situation where personal and confidential information is divulged, for example in regards to journalists and bank officers. The Court found this alleged obligation to be both "broad" and "untenable". The High Court was also critical of the Canadian jurisdiction's lack of consideration of the effect such a broad fiduciary obligation would have on existing common law duties. The Court ruled that the imposition of a positive duty to always act in the patient's best interests would conflict with the narrower contractual and tortious duty to exercise reasonable care and skill in the provision of professional advice and treatment. Further, on the matter of the interplay between fiduciary principles and the laws of negligence and contract, Dawson and Toohey JJ considered the role of equity and whether it was necessary to characterise the doctor-patient relationship as fiduciary, given the breadth of existing common law duties imposed on physicians. Their Honours ruled that there is "no need, or even room, for the imposition of fiduciary obligations" to protect the patient's interest. As Brebner notes, "[i]f equity's true function is to embellish the common law where it is deficient, it is far from certain that such a deficiency exists here". (47)

Ultimately, the High Court sought to clarify the conditions which may give rise to the imposition of fiduciary relationships, with Brennan CJ ruling that:

This led his Honour to question, "What is the nature of the doctor-patient relationship?" to which he himself responded: "[g]enerally there is no relationship of agency. But the relationship of doctor and patient is one where the doctor acquires an ascendancy over the patient and the patient is in a position of reposing trust in the doctor." (49)

Despite identifying that the doctor-patient relationship conforms to the second condition from which fiduciary duties may arise, the High Court further specified (that is to say, narrowed) the scope for imposing fiduciary obligations within the clinical relationship. This was best described by Dawson and Toohey JJ, where their Honours stated that: "[w]hilst duties of a fiduciary nature may be imposed upon a doctor, they are confined and do not cover the entire doctor-patient relationship." (50) That is, while some aspects of the doctor-patient relationship exhibit characteristics that courts have identified as indicative of a fiduciary relationship, this does not mean that the relationship is "fiduciary for all purposes". (51) This is consistent with Mason J's ruling in Hospital Products, which held that, "a person may stand in a fiduciary relationship to another for one purpose but not for others". (52)

Significantly, this approach to ascribing fiduciary obligations with respect to certain aspects of a given relationship provides a unifying feature of both Australian and Canadian fiduciary law as they stand today. This similarity is evident in Arndt v Smith (a medical malpractice case which appeared before the Supreme Court of Canada five years following the McInerney judgement). In Arndt, the plaintiff submitted that the defendant's failure to warn of the risks associated with the plaintiff's exposure to, and contraction of, chicken pox during her pregnancy (resulting in the congenital injury of her child) constituted a breach of fiduciary duty between physician and patient. McLachlin J rejected this argument, instead directing the plaintiff towards an action in negligence, and to that end stated:

Norberg v Wynrib is cited at the conclusion of this passage as it presented a set of facts upon which McLachlin J (together with L'Heureux Dube J) found it appropriate to rule on the basis of breach of the physician's fiduciary duty. Therein, the plaintiff had become addicted to prescription painkillers and "consented" to take part in a "sex-for-drugs" arrangement with her physician. The plaintiff then filed a claim against her physician once she had received treatment for her addiction. Norberg demonstrates a clear scenario of an "abuse of power for an unprofessional end" and thus, on the reasoning of McLachlin J, warranted examination of a doctor's breach of fiduciary duty.

In Australia, their Honours in Breen ruled that there are certain aspects in which the physician stands in fiduciary relationship to their patient, but these are limited to matters relating to diagnosis, advice and treatment. This is said to be the case because these aspects of the relationship exhibit "the characteristics of trust, confidence and vulnerability that typify the fiduciary relationship". (54) Similar to the Court's findings on the question of an implied contractual right, the plaintiff's argument based on a breach of fiduciary duty failed given that Ms Breen's alleged right of access was invoked for purposes outside the scope of healthcare.

E. The Continuance of a Contractual Model

In the absence of legislative reform, it is foreseeable that Australia's contractual characterisation of the doctor-patient relationship will remain in conformity with British tradition as evident in the willingness of Australian courts to apply the reasoning of English cases in relation to other areas of law influencing that relationship.(55)

Further still, the relationship will likely remain in conformity with tradition, as Australian and British courts have arguably treated the contract itself cautiously. This is reflected, in part, by the reluctance of the judiciary to imply too many contractual duties. The case of AAA v BBB (56) epitomises this point. Therein, a husband sued the medical practitioner who had been contracted by his wife to provide marriage counselling. The doctor then began a sexual relationship with the wife after which the marriage disintegrated. The husband sued the doctor in negligence for the economic loss that he had sustained as a result of the failed marriage. He argued that the doctor had an implied contractual duty to act in his patient's best interests, which was breached by his having an affair with her. Hasluck J dismissed this argument and ruled that there was no such implied contractual duty, nor was there an implied duty to consider the husband's interests despite the context being that of marriage counselling. Moreover, as Gaudin observes:

In stark contrast, Parkinson predicted that the scope of fiduciary duties imposed on physicians could evolve along the lines of the Canadian position as Australian courts have, in the past, utilised Canadian precedent in cases concerning fiduciary obligations. Parkinson specifically referred to this movement as a "growing trend in Australian courts". (58) He provided Kirby P's Court of Appeal judgement in Breen as well as his adoption of the minority judgement of Norberg v Wynrib (59) in Williams v Minister, Aboriginal Land Rights Act 1983 (60) as key examples. Further, he noted that Kirby P was not alone in his application of Canadian fiduciary law and cited Toohey J's ruling in Mabo v State of Queensland (No 2) (61) as another example of this "movement". Specifically, Toohey J cited the Supreme Court of Canada decision in Guerin v R (62) in support of his view that the Crown owed fiduciary obligations to Aboriginal titleholders in the exercise of its power to extinguish native title.

This article posits that while there have been some examples where Australian judges have been persuaded by the reasoning of their Canadian counterparts, this in and of itself does not qualify as a broader "trend" in judicial decision-making. As was made explicitly clear by the High Court's interpretation in Breen, there are definite distinctions between the jurisdictions. As Dorsett advanced in her discussion of Breen, it may very well be a case of "comparing apples and oranges". (63)

Under Canadian law, buttressed by recent decisions of the Supreme Court of Canada, (64) the locus for such a framework continues to rest in the fiduciary nature of the doctor-patient relationship--accepting, of course, reasonable limits on the scope of such a duty. In contrast, Australian law, as set out in Breen v Williams and reinforced in subsequent cases, holds that while the doctor-patient relationship is not fiduciary in its entirety, certain aspects of that relationship exhibit the characteristics of trust and confidence that may give rise to fiduciary obligations. Specifically, as stated by Dawson and Toohey JJ:

Moreover, while both jurisdictions conceptualise the doctor-patient relationship as comprised of some combination of tortious, contractual and fiduciary obligations (supplemented by criminal sanctions for the most offensive behaviour), they would each occupy a position on a spectrum between a dominantly contractual or commercial arrangement and a fiduciary relationship featuring trust and confidence at its core.

Looking forward, it appears that any foreseeable legal alteration to the current contractual paradigm would be via legislative reform as opposed to an extension of existing legal doctrine. In any case, as evident in the judgements of Gaudron and McHugh JJ, the High Court has reinforced its dominant paradigm of judicial reasoning as firmly embedded in legal formalism so as to avoid making law based on policy considerations which are the proper concern of the legislature. Their Honours stated that: "advances in common law must begin from a baseline of accepted principle and proceed by conventional methods of legal reasoning," and further, "it is a serious constitutional mistake to think that the common law courts have authority to 'provide a solvent' for every social, political or economic problem. The role of the common law courts is a far more modest one." (66)

Conclusion

The legacy of Breen v Williams is a somewhat harsh rejection of the Canadian judiciary's approach to the doctor-patient relationship. In light of subsequent critiques, the reasoning in that case to resist adding 'doctor-patient' to existing categories of fiduciary relationships remains compelling for the Australian context. For essentially pragmatic reasons, Carlin, who in his analysis countered a range of arguments for a reversal of the Australian High Court's position in Breen, (67) concluded quite credibly that litigants (and undoubtedly legal scholars?) would be better served to pursue more "profitable" strategies. Indeed, he specifically challenged the merits of grounding a fiduciary relationship in specific duties to avoid financial conflicts of interest. In his view, a duty not to engage in false or misleading conduct through statute-based consumer protection regimes, such as the Competition and Consumer Act 2010 (previously Trade Practices Act 1974) in New South Wales, would likely provide greater success.

In contrast, his Honour Justice Michael D. Kirby, who retired in 2009 from his position as a Justice of the High Court of Australia, remains highly critical of the High Court's decision in Breen. This may be unsurprising, given that his Honour authored the sole dissenting opinion in Breen at the appellate level, with the majority judgement having been subsequently affirmed by the High Court. Irrespective, as he recently observed, "Breen states the law that Australian courts must apply. However, it does not close off discussion of the majority opinion or the narrow approach that appears to lie behind it." (68) He staunchly opposed the conservatism and isolationism of the Australian judiciary's approach to fiduciary relationships, and eloquently pleaded:

Looking forward, it might seem reasonable that any foreseeable legal alteration to the current contractual paradigm in Australia would require legislative reform rather than any extension of existing legal doctrine. However, to defer the matter entirely to legislators might be premature. As Justice Kirby noted further:

In conclusion, as a prelude to further enquiry into delimiting surgeons' responsibilities towards their patients within the modern global era of medical innovation, there is merit in revisiting the evolution of Australian and Canadian approaches to the doctor-patient relationship. The development of regulatory and theoretical models to reconcile interests in surgical innovation may thus be duly enriched by principles and values gleaned from equitable doctrines, which as expressed in Canadian jurisprudence, steadfastly protect the interests of vulnerable persons. Likewise, the Australian position, which remains grounded in a fundamentally contractual conception, provides a pragmatic point of reference that recognises the commercial character of the doctor-patient relationship. On balance, however, neither seems to fully capture the expectations of both doctor and patient or fully characterise their respective roles.

(1) Jane Johnson et al, "Ethical Challenges of Innovative Surgery: A Response to the IDEAL Recommendations" (2010) 376 Lancet 1113. This article responds to the position statement of the Balliol Collaboration set out in: J.S. Barkun et al, "Evaluation and Stages of Surgical Innovations" (2009) 374 Lancet 1089.

(2) Ibid at 1113.

(3) The second author is a member of the INCISIVE (Interdisciplinary Collaboration Investigating Surgical Innovation, Values and Ethics) Research Team based at Macquarie University, Sydney, Australia.

(4) Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] 1 All. ER 643 [1985]; AC 871 at 904 (per Lord Scarman).

(5) Ibid.

(6) Paul Sieghart, "Professional Ethics-for whose benefit" (1982) 8 Journal of Medical Ethics 25 at 26.

(7) Sidaway, supra note 4 at 903. See also Rogers v Whitaker, [1992] HCA 58; [1992] 175 CLR 479 at 483 [Sidaway]; Gover v South Australia and Perriam, [19851 39 SASR 543 at 551.

(8) Ian Kerridge, Michael Lowe and Cameron Stewart, Ethics and Law for the Health Professions, 3rd ed (Federation Press, 2009) at 70.

(9) Liverpool City Council v Irwin, [1976] UKHL I, [1997] AC 239 at 254.

(10) Ibid at 254 (per Lord Wilberforce). See also Hawkins v. Clayton, [1988] HCA 15, [1988] 164 CLR 539 at 571.

(11) Hawkins v Clayton, [1988] HCA 15, [1988] 164 CLR 539 at 573(Deane J). This test directs the court to imply terms into the doctor-patient contract "by reference to the imputed intention of the parties if, but only if it can be seen that the implication of the particular term is necessary for the reasonable or effective operation of a contract of that nature in the circumstances of the case".

(12) Kerridge, Lowe and Stewart, supra note 8 at 70.

(13) Breen v Williams, [1996] HCA 57, [19961 186 CLR 71 at 78 (per Brennan CJ) [Breen]; Kerridge, Lowe and Stewart, supra note 8 at 73 (In the case of 'bulk billing' it is arguable that the consideration given by the patient is the signed Medicare slip).

(14) Kerridge, Lowe and Stewart, supra note 8 at 71. Nevertheless, the law requires that a person arguing a lack of capacity prove both their incapacity and that the other party knew of the incapacity as the basis for avoiding their obligations under contract.

(15) Breen, supra note 13.

(16) McInerney v MacDonald, [1992] SCR 138, 93 DLR (4th) 415.

(17) In re Silicone Gel Breast Implants Products Liability Litigation, 793 F Supp 1098 (JPML 1992).

(18) Patrick Parkinson, "Fiduciary Law and Access to Medical Records: Breen v Williams" (1995) 17:3 Sydney L Rev 433 at 433.

(19) Breen, supra note 13 at 123 (per Gummow J).

(20) Ibid at 102 (per Gaudron and McHugh JJ).

(21) See also Sidaway, supra note 7 at 873 (per Lord Diplock).

(22) Breen, supra note 13 at 89-90 (per Dawson and Toohey JJ).

(23) Ibid at 78 (per Brennan CJ).

(24) Ibid at 80 (per Brennan CJ).

(25) Breen v Williams, (1994) 35 NSWLR 522 al 542-545 (per Kirby P).

(26) Marc Rodwin, "Strains in the Fiduciary Metaphor: Divided Physician Loyalties and Obligations in a Changing Health Care System" (1995) 21 Am J L & M 241 at 243.

(27) Hospital Products Ltd v United States Surgical Corporation, [1984] HCA 64, [1984] 156 CLR 41 [Hospital Products].

(28) Chan v Zacharia, [1984] HCA 36, [19841 154 CLR 178 [Chan].

(29) Hospital Products, supra note 27 at 67 (per Gibbs C J).

(30) Chan, supra note 28 at 96 (per Mason J).

(31) Ibid at 198 (per Deane J).

(32) Breen, supra note 13 at 92 (per Dawson and Toohey JJ). See also: Arthur Laby, "Resolving Conflicts of Duty in Fiduciary Relationships" (2004) 54 Am U L Rev 75 at 80; Ernest Weinrib, "The Fiduciary Obligation" (1975) 25 UTLJ 1 at 5 (identifying a fiduciary is a "notoriously intractable problem").

(33) Hospital Products, supra note 27 at 96.

(34) Breen, supra note 13 at 92 (per Dawson and Toohey JJ).

(35) Hospital Products, supra note 27 at 96. See also Julie Brebner, "Breen v. Williams: A lost opportunity or a welcome conservatism?" (1996) 16 Deakin L Rev 237 at 241.

(36) Rowe v Grand Trunk Railway, (1866), 16 UCCP 500.

(37) Ibid at 506. See also: Leonard I Rotman, "Fiduciary Doctrine: a concept in need of understanding" (1996) 34 Alta L Rev 821.

(38) Ibid. See also Billange v Southee, (1852) 68 ER 623; Mitchell v Homfray, (1881) 8 QBD 587; Williams v Johnson, [1937] 4 All ER 34; Norberg v Wynrib, [1992] 2 SCR 226.

(39) McInerney v MacDonald, [1992] 2 SCR 138, (1992) 93 DLR (4th) 415.

(40) Ibid at 139. It is also worth noting that the doctor-patient relationship has been identified as fiduciary by courts in the United States of Americi: Foshee v Krum, 332 636 (Mich 1952); Stafford v Schultz, 42 2d 767 (Cal 1954); Wohlgemuth v Meyer, 293 P 2d 816 (Cal App 1956); Natanson v Kline, 186 393 (Kan 1960); Canterbury v Spence, 464 F2d 772 at 776-78 (DC Cir 1972); Demers v Herety, 85 641 (NM 1973); Horne v Patton, 287 So 2d 824 (Ala 1973); Cannell v Medical & Surgical Clinic, 21 3rd 383 (Ill App 1974) ; Hales v Pittman, 118 305 (Ariz 1978); Henkin v Berea Bank & Trust Co., 566 SW2d 420 at 423-24 (Ky App 1978); Taber v Riordan, 83 3rd 900 (Ill App 1980); Hendricks v James, 421 So 2d 1031 (Miss 1982); Estate of Leach v Shapiro, 13 3rd 393 (Ohio App 1984); Stufflebaum v Applequist, 694 S.W.2d 882, 888 (Mo App SD 1985); Brandt v Medical Defense Assoc, 856 2d 667 (Mo 1993).

(41) Ibid at 140.

(42) Ibid at 139.

(43) Galambos v Perez, [2009] SCJ No. 48 [2009] 3 SCR 247.

(44) Ibid.

(45) Alberta v Elder Advocates of Alberta Society, 2011 SCC 24, 2 SCR 261.

(46) Ibid.

(47) Brebner, supra note 35 at 247.

(48) Breen, supra note 13 at 82 (per Brennan C J) citing Birtchnell v Equity Trustees, Executors and Agency Co Ltd, (1929) 42 CLR 384 at 408-409 and Johnson v Buttress, (1936) 56 CLR 113 at 134-135.

(49) Ibid at 83 (per Brennan C J).

(50) Ibid at 92 (per Dawson and Toohey JJ).

(51) Ibid at 107 (per Gaudron and McHugh JJ).

(52) Hospital Products, supra note 27 at 98.

(53) Arndt v Smith, [1997] 2 SCR 539 at para 38 (per McLachlin J).

(54) Breen, supra note 13 at 108 (per Gaudron and McHugh JJ). See also Daly v Sydney Stock Exchange Ltd, (1986) 160 CLR 371 at 377.

(55) Kerridge, Lowe and Stewart, supra note 8 at 74-77. Noteworthy examples may be derived from tort law, in regards to trespass to the person and negligence, and criminal law, where a health care provider may be prosecuted for criminal negligence for a mistake causing the death of a patient. Concerning the latter, the ruling of the House of Lords in R v Adomako, [1995] 1 AC 171 as well as the affirming judgement in R v Misra [2004] EWCA Crim 2375 was applied in R v Pegios, [2008] NSWDC 104, a New South Wales case where a dentist was prosecuted for manslaughter following the overdose of one of his patients whilst under anaesthetic.

(56) AAA v BBB, [2005] WASC 139.

(57) John Gaudin, "Breen v Williams--patients unrewarded in the High Court" (1996) 3 Privacy Law and Policy Reporter 106 at 109.

(58) Parkinson, supra note 18 at 438.

(59) Norberg v Wynrib, [1992] 2 SCR 226.

(60) Williams v Minister, Aboriginal Land Rights Act 1983, [1994] 35 NSWLR 497.

(61) Mabo v State of Queensland (No 2), [1992] 175 CLR l, 221.

(62) Guerin v R, (1985) 13 DLR (4th) 321.

(63) Shaunnagh Dorsett, "Comparing Apples and Oranges: The Fiduciary Principle in Australia and Canada after Breen v Williams" (1996) 8:2 Bond L Rev 158.

(64) Galambos v Perez, [2009] SCJ No 48; Alberta v Elder Advocates of Alberta Society, 2011 SCC 24.

(65) Breen, supra note 13 at 93-94 (per Dawson and Toohey JJ).

(66) Ibid at 115 (per Gaudron and McHugh JJ), citing Tucker v US Department of Commerce (1992) 958 F 2d 1411 at 1413.

(67) Tyrone Carlin, "Doctors as Fiduciaries--Revisiting the Past with an Eye on the Future" (2001) 9 J Law Med 95.

(68) Michael D Kirby, "Equity's Australian Isolationism", The Australian (20 November 2008).

(69) Ibid.

(70) Ibid.

Zara J Bending and George F Tomossy *

* Zara J. Bending, BSocSci/LLB Candidate, Macquarie Law School, Macquarie University, Sydney, Australia; George E Tomossy, Senior Lecturer, Macquarie Law School, Macquarie University, Sydney, Australia. This paper is based in part on the first author's presentation at the 2011 Annual Conference of the Australasian Association of Bioethics & Health Law. The authors gratefully acknowledge the invaluable feedback of Dr. Carlos Bernal on earlier drafts of this paper.
The critical feature of these relationships is that the fiduciary
   undertakes or agrees to act for or on behalf of or in the interests
   of another person in the exercise of a power or discretion which
   will affect the interests of that other person in a legal or
   practical sense. The relationship between the parties is therefore
   one which gives the fiduciary a special opportunity to exercise the
   power or discretion to the detriment of that other person who is
   accordingly vulnerable to abuse by the fiduciary of his position.
   (30)


... a person who is under a fiduciary obligation must account to
   the person to whom the obligation is owed for any benefit or gain
   (i) which has been obtained or received in circumstances where a
   conflict or significant possibility of conflict existed between his
   fiduciary duty and his personal interest in the pursuit or possible
   receipt of such a benefit or gain or (ii) which was obtained or
   received by use or by reason of his fiduciary position or of
   opportunity or knowledge resulting from it. (31)


... [T]here can be no doubt that a medical man is placed in such a
   position of trust and confidence towards his patient, which
   requires from him the same degree of good faith, plain dealing and
   guarded conduct which the law requires shall subsist between
   trustee and cestui que trust ... (37)


The physician-patient relationship is fiduciary in nature and
   certain duties arise from that special relationship of trust and
   confidence. These include the duties of the doctor to act with
   utmost good faith and loyalty, to hold information received from or
   about a patient in confidence, and to make proper disclosure of
   information to the patient. (40)


[f]iduciary duties arise from either of two sources, which may be
   distinguished one from the other but which frequently overlap. One
   source is agency; the other is a relationship of ascendancy or
   influence by one party over another, or dependence or trust on the
   part of that other. (48)


I see no reason to depart from the approach which considers the
   failure of a physician to advise of medical risks under the law of
   negligence relating to duty of care, absent special circumstances
   like fraudulent misrepresentation or abuse of power for an
   unprofessional end. (53)


Courts are reluctant to imply terms into contracts except where the
   implication is by operation of law, is necessary to give effect to
   the intention of the parties entering into the contract, it is
   self-evident or obvious that the parties would have accepted it
   when entering into the contract if their attention has been drawn
   to it or the term can be seen to be implied by custom or usage.
   (57)


Fiduciary duties may be superimposed upon contractual obligations
   and it is conceivable that a doctor may place himself in a position
   with potential for a conflict of interest--if, for example, the
   doctor has a financial interest in a hospital or a pathology
   laboratory--so as to give rise to fiduciary obligations. (65)


We in Australia, as others of our legal tradition earlier, must
   recognise the need to discard equity's isolationism. The doctrines
   and remedies of equity are part of a great worldwide legal
   tradition ... The problems which, in earlier centuries, equity
   sprang up to remedy, continue to present themselves in new guises.
   The instance of fiduciary duties to indigenous peoples (and,
   perhaps, by doctors to patients) are simply illustrations of the
   need to retain a lawyerly capacity to keep the doctrines and
   remedies of equity alive and bright in the current age with its
   distinctive challenges and global features. (69)


The apparent antagonism to the suggested updating of old principles
   (as in Breen ... in the High Court) reveals a hostility to
   evolution that we need to overcome ... As every lawyer knows, it is
   a fiction to leave all developments in the law to Parliament. In
   matters of such detail, Parliament is usually uninterested. It will
   usually do nothing. Judge-made adaptability is part of the genius
   of our law. We should cherish it and not deny its place. (70)
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