Doctor-Patient Contract in Common Law

Ethics and Doctor-Patient Contract
[Part-4, Broadcast: 28/7/2022 (6min R)]

ETHICS AND DOCTOR-PATIENT CONTRACTUAL RELATIONSHIP (Sec X. Part-4): Friends, in the discussion last year on "Sec. VII Inalienable Rights ...", we have examined extensively the doctor-patient relationship within the light of customarily accepted doctor's code of ethics, such as AMA Codes of Ethics [#28]. In that discussion, I mentioned an implied contract that has arisen between the doctor and patient when a patient visits the doctor for consultation and treatment. In that scenario, the patient is the primary stakeholder who shall exercise the right to manage their health. In contrast, the doctor has the role of helping and guiding that patient in managing the patient's health. Steps further in consideration, the undue interference by DIBP and IHMS in that doctor-patient consultation and treatment process has ultimately violated inalienable rights to the health of the patient, which also found to have violated slavery and torture laws.

Parallel to the above discussion, in this Part-4, we shall see the doctor-patient relationship in the common law contexts in formal contractual terms.

To examine the terms of doctor-patient implied contracts, the best authority I could find is the High Court of Australia's 1996 judgment on the case of "Breen vs Williams" [#57]. The Breen vs Williams, in a sense, has been an unusual case that originated in United States jurisdiction (Gummow J, [#57]) in which the appellant seeks to establish an extraordinary court outcome. The High Court judges are unanimous in rejecting that appeal case. It appears that Chief Justice Brennan, by way of his judgment, had delineated the terms of contractual duty for a doctor in proper Australian law contexts that applied in the cause of treatment to a patient.

Fortunately for us, Chief Justice Brennan summarised the three legal duties arising from the doctor-patient implied contract in plain English in the first five pages of the report [#57]. Remember, I shall be referencing only those offshore medevac cases that are too apparent in dereliction of care and abominable outcomes -- such as those publicly identifiable cases of Faysal Ahmed, Fariborz Karimi, Salim Kyawning and Hamid Shamshiripur -- about which the considerations on that three legal duties for offshore health care providers would be adequate. But, of course, in law, not all punishable crimes would require to have such "bad results". In general, when it comes to a criminal violation of law, the prosecution needs to prove the criminal act [of omission], the criminal intent and the concurrence to make a successful case [See Chap 4. "Criminal Elements", #50].

THE DOCTOR-PATIENT CONTRACTUAL DUTIES

First and foremost, the primary legal duty imposed on the provider-doctor is to "advise and treat the patient with reasonable skill and care". CJ Brennan explained [#57]:

"In 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. The consideration for the undertaking may be either a payment, .. or an undertaking by the patient to submit, to the treatment proposed. A duty, similar to the duty binding on the doctor by contract, is imposed on the doctor by the law of torts. The advice and treatment required to fulfil either duty depends on the history and condition of the patient, the facilities available and all the other circumstances of the case."

The words in primary terms of the contract -- i.e. "advise", "treat", "reasonable", "skill", and "care" -- all have everyday meanings and are also legally charged. However, we must be mindful that in the common law courts, especially before justices, the interpretation of words would be limited by prior known cases under the doctrine of legal precedence. As such, be careful in using new words and, where possible, avoid importing popular catchwords or terminologies.

The contract also imposed a second legal duty on the doctor regarding patient information. The doctor must respect the patient's privacy in person and observe the confidentiality of the patient's information. The source of that contractual duty has, for example, in Australia, originated from the Privacy Act 1988 (Cth), where a doctor had acquired information from the patient to advise and treat. Hence, the provider-doctor must not use that patient information for other purposes [#58].

The third legal duty for the doctor, fiduciary duty, had also arisen in the course of treating the patient. The doctor's fiduciary duty can arise either or both from (1) in the process of the patient reposing their trust in the doctor and (2) the patient utilising the doctor's agency in the treatment. Australian courts do not accept that the doctor, by social status or profession, would automatically owe a fiduciary duty towards their patient. The courts consider fiduciary obligations to arise because a doctor is obligated to act in the patient's interests. The courts would consider fiduciary duty for a doctor erected from the discharge of the primary duty on their patient to "advise and treat with reasonable skill and care" (See Gaudron & McHugh JJ [#57]).

These are the three most basic legal duties for healthcare provider-doctors owed to offshore asylum-seeker patients.

THE ROLES OF DOCTORS' ETHICAL CODES

For the general public, the doctor's Code of Ethics -- such as that of AMA [#28] -- has been a great source of information to gauge patients' rights. Most countries with common law traditions, such as the UK, USA, Canada and New Zealand, have deployed similar Code of Ethics for their medical professions. Professional member bodies, like AMA, enforce the Code of Ethics for medical practitioners. Although the Code of Ethics itself is not the law -- i.e. not enforceable outside the professional body's membership -- there has been an indirect connection between common law and the code. In expounding the origins of the doctor-patient contract, Gaudron & McHugh JJ summarised [#57]:

=>"The doctor-patient relationship is contractual in origin. In general terms, “[a] doctor offers a patient diagnosis, advice and treatment”, ...... Given the informal nature of the relationship, however, a contract between a doctor and a patient rarely contains many express terms. Because that is so, the courts are obliged to formulate the rights and obligations of the parties to the contract ...The court does so by implying terms in the contract in accordance with established legal principles."

=>"The common law draws a distinction between terms which are implied in fact and terms which are implied by law...... A term implied in fact purports to give effect to the presumed intention of the parties to the contract in respect of a matter that they have not mentioned but on which presumably they would have agreed should be part of the contract. "

=>"A term implied by law on the other hand arises from the nature, type or class of contract in question. Some terms are implied by statutes in contracts of a particular class... Other terms are implied by the common law because...they became so much a part of the common understanding as to be imported into all transactions of the particular description. "

=>"Many of these terms are implied to prevent “the enjoyment of the rights conferred by the contract [being] rendered nugatory, worthless, or, perhaps, … seriously undermined”, The distinction between terms implied by law and terms implied in fact can tend in practice to “merge imperceptibly into each other".

Therefore, the doctor-patient contract exists but is not in proper written form. When the need arises, the court will determine the terms of that contract under established legal principles. The terms will include the presumed intention of parties (provider-doctor & patient). The terms will also include implied terms from statutes (privacy and government health laws, for example). The court will also consider doctors' Code of Ethics as the common understanding of the doctor-patient relationship and generally accepted societal values.

We can now see that the doctors' Code of Ethics, which originated in common law, will have been reinforced again, if and when required, in a court of law.

PS: The doctors' medical codes, e.g. AMA Code of Ethics [#28], originated from common law and traditional ethical codes. "1.3 This Code has grown out of similar ethical codes stretching back into history, including the Hippocratic Oath and those from other cultures." This makes more sense because traditional doctors' ethics date back 4,500 years, while British common law is merely 900 years old. Perhaps, the imperceptible merger of these two!

NEXT IN PRACTICAL APPLICATION

Friends, our learning process in this area of law has now came crossing its steepest segment, perhaps. Therefore, in the next posting, we shall try to look at the offshore medevac situation in the context of a doctor-patient contract and identify the potential breach of that contract.

Offshore Arrangement And Medical Related Tort Laws
[Part-3, Broadcast: 17/7/2022 (5min R)]

OFFSHORE ARRANGEMENT AND MEDICAL RELATED TORT LAWS (Part-3): Friends, when we're embarking on actions for offshore asylum-seekers through the laws and courts, keep in mind that we -- the laypersons -- will not have 100% understanding on the language (jargon) of the laws and procedural formalities. Be as humble, we will nevertheless be following the steps taken in previous court actions, especially the two landmark judgments of M68/2015 [#51] and s99/2016 [#52]. We -- the refugee supporting community in Australia -- are very familiar with these two court cases, of course. Some of us (not myself!) may even have practically participated in those actions. I've drawn out two web links on case notes M68 & s99 prepared by Kaldor Center [#51, #52] to refresh our memories. Primarily, we'll be looking at how civil tort actions are taken on wrongdoers where the legal construction will parallel the breach of contract by healthcare providers, i.e. doctors, IHMS & DIBP [#53]. Be also aware that we are at a steep learning area in law: therefore, prepare yourself to start with minimal knowledge that is allowing you to grow and expand as we go along the discussion.

THE CRIME OF OMISSION AS BREACH OF LEGAL DUTY

A crime will be committed if "a person" acted in violation of a law prohibiting it or omitted to act in violation of a law ordering it (see "Definition of a Crime [#50]"). Omission to act is criminal in the following situations: (1) when there is a statute that creates a legal duty to act, (2) when there is a contract that creates a legal duty to act, or (3) when there is a special relationship between the parties that creates a legal duty to act (see "Omission to Act [#50]").

In offshore medevac situations, several incidents of omission act by the DIBP, IHMS and its doctors. For example, the doctor(s) at Manus Island Clinics who refused to disclose critical personal health information to Faysal Ahmed can be characterised as an act of omission [to carry out a doctor's legal duty]. The DIBP delaying & refusing to bring patients from Manus/Nauru to Australia against the doctor's recommended medical transfer has also been an act of omission [to carry out the department's legal duty]. In a more complex example in the s99/2016, the existing "special relationship" between plaintiff-s99 and the immigration minister has created a legal duty for DIBP to provide s99 with a "safe and timely" medical procedure. Remember, in the previous paragraph, "a person", "private company," or "government department" shall all have the same meaning in law as they are being interchangeable ( Para. 44, [#51] ).

In Section "VII. Inalienable Rights ..." last year, I mentioned the "implied contract" between the doctor and patient. The focus of the current discussion is to ascertain the existence of such a "doctor-patient contract" within common law and examine the types of legal duties arising from that doctor-patient contract.

THE DIBP AND ITS NON-DELEGABLE DUTY OF CARE

The pattern of DIBP medical neglect of asylum-seeker detainees was found, way back two decades. In 2004 the Baxter Immigration Detention Centre in the South Australian outback, the two immigration detainees, S & M, who had been suffering from severe psychiatric illness, had brought forward a court action [#55]. The presiding justice Professor Finn J of the Federal Court of Australia, examined their case. Just before the court could issue the order for an injunction, the department brought S & M to a proper psychiatric hospital in Adelaide. Finn J remarked on Commonwealth Government (outsourcing) contracting out health care for immigration detainees as [#55]:

"259. The Commonwealth entered into a complex outsourcing arrangement for the provision of mental health services which left it to contractors and subcontractors to determine the level of services to be supplied. The hallmarks of these arrangements were devolution and fragmentation of actual service provision. The service provision was so structured that there was a clear and obvious needs [sic] for regular and systematic auditing of ....... services ...... to inform itself (Commonwealth) appropriately as to ..... these services for which it (Commonwealth) bore responsibility. There has to date been no such audit."

This judgment indicates that, despite the devolution of health care services into the fragmented layers of contracts, the Commonwealth (DIBP) still bore responsibility. Justice Finn, on this point, has been drawing on the authority of the High Court [#54] in a case where the respective government authority which has contracted out services to an independent contractor may still be liable when it comes to the duties of "personal" or "non-delegable" in nature. Such is the type of common law duty of care being owed by a hospital to the patient, despite the malpractice that may have occasioned by a contracted "radiographer" or "part-time anaesthetist" or "special consultant" [Para.29, #54]. When it comes to the health care of UMAs, whether in onshore detention or offshore processing, the Commonwealth (DIBP) have such "personal" or "non-delegable" duty.

FRAGMENTED CONTRACT SERVICES

Under the Commonwealth government's contracted-out health services (i.e. outsourcing) arrangements, health care service provision is fragmented among various unconnected service providers [#55]. It is easy to see such a contracted-out service arrangement increases the government's capacity for plausibility in denying the occasion of damages. The offshore processing regime also enhances the deniability of the government. To counterbalance this deniability, one must break down the current contracted-out structure and identify the legal duty owed to the offshore asylum-seeker patient by each entity. Therefore, for this discussion, let's use the generic word "provider" to represent each layers of health care service provider. Hence:

=> the provider-DIBP has an overall non-delegable duty on health care of offshore asylum-seekers;
=> the provider-contractor-Broadspectrum has a contractual duty in care, including health care, of asylum-seekers that has been stipulated by written terms of contract with DIBP;
=> the provider-contractor-IHMS has a contractual duty on health care of offshore asylum-seekers that has been stipulated by written terms of contract with Broadspectrum/DIBP;
=> the provider-subcontractor-doctor has an employment contract with IHMS. That provider-doctor also has the doctor-patient implied-unwritten contract when treating the asylum-seeker patient. The subcontracted provider-doctor can either be a physician or a psychiatrist.

As discussed in the case of Samuel [#56], DIBP and IHMS have legal duties to support and facilitate the provider-doctor in treating asylum-seeker patients. As such, the doctor-patient implied-unwritten contract terms must be held as the highest order of precedence amongst when in implementation.

In the next posting, we shall examine in common law contexts, how a doctor-patient unwritten contract may have arisen when a patient visits the doctor. And also discuss the legal duties of the treating doctor from that contract. (..CONTINUED Pt.4 ..)

The Lawman's view of a Crime
[Part-2, Broadcast: 5/7/2022 (4min R)]

THE LAWMAN'S VIEW OF A CRIME (Part-2): When I think about how the law professionals -- i.e. judges & lawyers, including police forces -- may have perceived a crime, a bit of shocking memory does come back to me. Notably, in early 2017, I tried to read the 2008 novel slavery case of Queen vs. Tang HCA judgement [#9]. When I read Gleeson CJ's discussion on the part of the Criminal Code text just said, "...the law that creates the offence ...". I nearly fell off the chair! Eventually, it took me about three years to make sense of that HCA document.

When trying to redress the injustice in a situation, the usual steps that ordinary people take -- i.e. activists, asylum-seekers -- first and foremost take note of injustice, check if someone or something has been perpetrating the crime, and then finally look out for relevant law to apply. In contrast, law professionals would approach the situation of injustice the other way. For them, the "law" must come first. There's a famous quote, "No law, no crime (lt. Nullum crimen sine lege)". And there it comes: That "law" must be an "applicable law". Then that "applicable law" must also be combined with the proof of "an identifiable person/body" that had broken "applicable law" to consider as "a crime has been committed".

This self-justifying stance by law enforcement personnel here in Australia has unfortunate consequences. One case in point is the death of Faysal Ishak Ahmed in December 2016. We -- the activists and all asylum-seekers on Manus Island -- knew that Faysal Ahmed, who suffered from a debilitating illness, had been left to die in VSRA. That is despite a repeated plea for help made to IHMS and camp authorities by himself and the asylum-seekers. So, which Australian or PNG "laws" had been broken there? I suppose if Faysal Ishak Ahmed had a "powerful brother" -- i.e. wealthy, influential & he cares (sic) -- ever happened to be living in PNG, his brother would at least seek to establish the Australian detention authorities of "liabilities for failure to act", even without having adequate knowledge on Faysal Ahmed's long-term debilitating illness. But, in fact, the refugee Faysal Ahmed had no such wealthy brothers: not in PNG, not in Australia, not even in this world, unfortunately. Therefore, this onerous task of seeking justice for offshore asylum-seekers has been on us -- the general public. Consequently, the activists and asylum-seekers must engage Australia's criminal justice system through the correct channels.

The judicial determinations on offshore matters, such as questions on tort laws, have been finalised since the landmark cases of M68/2015 and S99/2016. These judgments, of course, are concerned with civil litigation for damages against the Commonwealth Government. However, for slavery and torture crimes, we would need to look into proper criminal prosecution. Therefore, we must take steps further and seek redress for the exemplary damages.

Therefore, I commended looking into "Criminal Law", an open online textbook prepared by the University of Minnesota [#50]. That law textbook is highly readable (Focus: Ch. 1,4,7 & 8 ) and especially helpful to familiarise with criminal law concepts, court procedures and languages. Keep in mind also that the US and Australian criminal justice systems are very much alike, but minor differences in court vocabulary (ex. US: felonies of crime = AU: indictable offences; US: crimes of misdemeanour = AU: summary offences; etc.. [ IF ANYONE FIND COMPLETE LIST ON SUCH TRANSFORMATION, PLEASE UPLOAD! ] ). -- Cheers, NetIPR.

Medevac and Common Law Patient Rights
[Part-1, Broadcast: 23/6/2022 (4min R)]

MEDICAL ETHICS, COMMON LAW RIGHTS AND OFFSHORE MEDEVAC CASES (Part-1): Friends, I have been revisiting the discussion I put out in May/June 2021 on "VII. Inalienable Rights to Health and Offshore Medevac Context " in recent weeks. In that discussion, we have identified that a patient, i.e. offshore asylum-seeker in our consideration, has been the primary stakeholder in managing their health and that the treating doctor must provide health care service with the necessary medical skill and knowledge to help improve the health of the patient. Furthermore, we have identified DIBP/IHMS's wrongful conduct by utilising the concept of "inalienable rights" of the human person and "customarily accepted ethical standards" for medical professions.

Here, we speak specifically of the "inalienable rights to manage one's health". Inalienable rights, also called natural rights, are a natural part of human life. They are the kind of rights every person has been born with, and those rights usually supersede any other governmental laws or customs. The earliest discussion on the natural rights of human persons is said to have been made by John Locke in 1632-1704 [#48].

For the "customarily accepted ethical standards" of medical professions, I have been influenced by the activist doctors -- such as Dr(s) Peter Young, Nick Martin amongst others -- who have substantially contributed to our understanding of the medical care situation in offshore detention centres. Consequently, I've drawn the Australian Medical Association's Ethical Guideline [#28] as the standard for our discussion. The historians found the earliest code of ethics for medical professions in 2500 BCE [#48]. As such, when it comes to medical ethics, we speak about the 4500 years old tradition!

COMMON LAW VS. ETHICS & RIGHTS

In In "VII. Inalienable Rights to Health and Offshore Medevac Context", we have identified the wrongful conduct of DIBP/IHMS and their doctors in treating offshore asylum-seekers. So far as I can tell, there are no other comparable writings on this subject, and the approach taken in my analysis has been unique. In this approach, I expressed the injustice inflicted upon offshore asylum-seekers in connection with human rights violations and the infringement against medical ethics. However, the Australian courts will not accept human rights language used in that discussion. Therefore, I shall begin transcribing our Offshore Medevac considerations into common law. Furthermore, the legal power for compliance with the medical code of ethics -- AMA Ethical Guideline, for example -- has originated from the common law [#49]. Since patients' human rights and medical ethics are flip sides of the same coin, their common law origins are unsurprising.

GENERAL LEGAL DIRECTION

The objective in the broadest terms: Firstly, to establish the Commonwealth Government of Australia (DIBP) and its contractor IHMS has the duty of care to provide health care services to the asylum-seekers offshore, either in detention or outside detention. Complete omission or dereliction of that duty attracts both civil and criminal liabilities. Accordingly, we may not eventually endeavour to establish normal torts for medical negligence by those entities (DIBP/IHMS). We shall instead be establishing such medical negligence cases have been arising out of the authorities' "wilful omission" of their duty. Such consideration is akin to prison authorities failing to provide requisite medical treatment, which violates torture laws. We've already learnt similar examples from the United States in the "IX. Medevac Related Torture at Offshore Centres".

THE CASES OF DUAL LOYALTY

In any setting, the treating doctor must act in the best interest and benefit of the patient. This required the doctor's allegiance (loyalty) to the patient of which the third party or other powerful actors can often compromise. This problem is known as dual loyalty [#47]. In our offshore cases, we have seen the contracted doctors/psychiatrists, who DIBP/IHMS had employed, were required to work in a compromised position. The 1993 International Dual Loyalty Working Group states: "Governments and other third parties often demand that health professionals put allegiance to their patients aside, in deference to the demands of these powerful actors -- often in a manner that violates patients' human rights [#47]". Starting with doctor-patient contractual duties, we must project the legal responsibility towards IHMS and, ultimately, the DIBP. On these tasks in common law areas, we must follow in the footsteps of competent legal authorities. Be aware I am not a lawyer and non-party to any of the cases -- all in the public domain -- of which I may cite from time to time. As such, there has been no force of the legal weight on what I've said ( at least not yet !! ) but to be treated as an independent analysis and helpful information.

NOTE on References: The reference numbers are taken across from the main discussion on Australia's Detention Slavery. The URL --> http://www.aus4iccwitness.org/node/92