by Helga Fonseca, Collaborating Member of CEDU

▪

1. INTRODUCTION

The Treatment contract is one of the legal instruments provided in the Draft Common Frame of Reference (DCFR)[i] which allows the parts into a medical services contract under the Art. I.V.C.-8:101 to 8:111.

This particular instrument developed in the 1980s in the legislation of the European Community – now the European Union – has the purpose to protect the parts, inter alia, the consumers in private contractual situations, above all, when one party is in a weaker position (the patient) in comparison to the medical provider (the Services Directive does not applies to the medical services)[ii].

As it says in the DCFR, the “DCFR is developed on the basis of comparative studies of community law and the laws of the Member States, it has to reflect the underlying values to be found in the existing laws, that are not the same in each system”. As far as there are differences between the underlying values in individual jurisdictions, or between the laws of the Member States and EC law, the DCFR mediates between them and takes a balanced position. Any attempt to work in principles of private law, will at least have to deal with the following core aims and the values expressed in them: Justice; Freedom; Protection of Human Rights; Economic welfare; Solidarity and Social Responsibility; Promotion of the Internal Market; Preservations of Cultural and Linguistic Plurality and so on[iii].

The DCFR is to be interpreted and applied in consistent with the aims and principles of which not only the laws of the Member States, but also the principles to which the European Union is based on. Such as the Internal Market with free and fair competitions and free movements of goods, people, services and capital, and the protection of consumers and others in need of protection.

2. THE FRAMEWORK OF THE RULES OF CHAPTER 8 DCFR

 The DCFR[iv] was elaborated on the basis of national comparative law and the study of the acquis communautaire in private law. The aim is to harmonize European legislation in the EU and to be a “toolbox” for both legislation and judicial actors[v].

They are soft law, but very important in the doctrine and jurisprudence, inter alia, in services contracts whether some countries don´t have regulated services contracts[vi].

Article IV.C. – 8:101: Scope

This Article covers the scope of application of the rules in this Chapter. The most common application will be that of a patient entering into a contract with a treatment provider in order to receive treatment. However, an important policy issue is whether the Chapter should apply to situations where a clear contractual link is lacking. On one hand, it may be argued that for conceptual reasons only treatment provided after a treatment provider and a patient concluded a contract should fall within the scope of this article. On the other hand, not broadening the scope of these rules to the aforementioned situations would amount to discrimination, not treating identical situations alike, without any practical reason. In fact, it often happens that the patient and the person concluding the treatment contract are not the same[vii] [viii].

The scope of application is extended to treatment provided on behalf of a person who is not a contractual party[ix]. The reason is the protection of patients in equal situations. In exceptional circumstances, where treatment must be performed immediately to serve the best interests of the patient and the patient cannot express agreement to the contract the rules on benevolent intervention in another’s affairs may apply.

In principle, the Chapter applies only in so far as there is a contractual relationship between a treatment provider and the patient. However, if under national law the relationship cannot be qualified as a private law contract, the present Chapter does not apply; administrative courts may, irrespective of its private law nature and of their own accord, apply by analogy.

In most European countries, the contract for treatment falls into the existing categories of contracts for services (Spain and Portugal), or contracts for work (France). In some legal systems it is not clear if treatment is qualified as a contract for work or services or if it is a specific innominate sui generis contract (Greece). Countries regulating the contract for treatment as a nominate contract in the CC are the Netherlands, Germany (in BGB since 2013) and some in the East. In Portugal, when the treatment takes place in a public hospital, administrative law applies. It would be desirable to considerate as a contract this contractual relationship whether it is private or public[x]. In the Netherlands there are two contracts: one with the doctor and one with the clinic[xi].

Article IV.C.-8:105: Obligation to inform; IV.C.-8:106: Obligation to inform in case of unnecessary or experimental treatment; and IV.C.-8:107: Exceptions to the obligation to inform:

This Art. IV.C.-8:105 par. (1)[xii], identifies what extent of information should be provided by the doctor and in par (2)[xiii] some determination of it. The duty to inform about all risks is bigger in the voluntary treatments once there is no urgency and medical necessity.  In the Art. IV.C.-8:107, the exception to provide information of the par (1) (a), the so called therapeutic exception or therapeutic privilege[xiv]. In some circumstances, it´s better for the patient not to know because his/her health condition, for example, cardiac or mental cases. And in par (1) (b)[xv], the right not to know is accepted stricto sensu.

IV.C. – 8:108: Obligation not to treat without consent

The contractual obligation not to proceed without the informed consent of the patient is reinforced by the fact that there would usually be non-contractual and possibly criminal liability for invading a person’s bodily integrity without that person’s consent. Another issue covered by this Article is the right of the patient to withdraw consent at any time (paragraph (2)). Even if the patient has previously provided consent for treatment, and treatment has already started, the patient can decide to withdraw consent at any given time. Consent does not usually require a specific form and may be withdrawn freely at any time (CHRB art. 5[xvi]). This is a corollary of patient autonomy: regardless of the consequences, the directions of the patient must be followed.

IV.C. – 8:109: Records

In this Art. IV.C.-8:109[xvii] the treatment provider has an obligation to create and keep up to date adequate records concerning the clinical history of the patient. This obligation aims to ensure the correct performance of treatment, securing elements that may be important as evidence and promoting accountability. The reference to “adequate records of the treatment” assumes that the records will cover the anamnesis, the present health status of the patient, the way the illness has developed, the therapeutic procedures followed, the medication, the obtaining of consent, the treatment performed, and the names of the health-care professionals involved. One reason for having an obligation to keep adequate records is that a patient may be seen by a number of different people at different stages and it is important that at each stage the treatment provider should know what happened at earlier stages.

Another issue that the comments raise is whether it should also have access to subjective annotations of the professionals and where the access to medical records should be done through collaboration of the doctor.[xviii].

The par (6) [xix] requires the service provider a third obligation: the secret about the content of the clinical history in relation to third parties other than legal representatives of the patient (the comments refer to the insurance companies or employer, if these were the contractual parties).

IV.C. – 8:110: Remedies for non-performance

The normal remedies for non-performance of an obligation provided by Book III, Chapter 3 apply in the case of obligations under a contract for treatment. The remedies include withholding of performance, damages, price reduction and termination of the contractual relationship for fundamental non-performance. The remedy of enforcing specific performance would also be available in theory but would be of restricted application in practice because of the personal nature of the obligations under a treatment contract.

The right provided by IV.C.–2:111 (Client’s right to terminate) also applies in the context of a contract for treatment and enables the patient to terminate the contractual relationship at any time.

This Article contains two adaptations. The treatment provider may not withhold performance or terminate the contractual relationship or if doing so would cause serious harm to the health of the patient and an obligation to refer the patient to another treatment provider.

IV.C. – 8:111: Obligation of treatment-providing organizations

It happens in some countries that health-care professionals without an employment contract with or a functional link to a hospital are allowed by that hospital to administer treatment on its premises. This situation may result in uncertainty about the legal rights of patients. The idea underlying this Article[xx] is that a treatment-providing organisation, such as a hospital, should make its own position clear and should inform the patient of the identity of the treatment provider. If the treatment provider cannot be identified, the organisation will be treated as the treatment provider.

The rule of par (2) is inspired in the Art. 3º, nº 3 [xxi] of the Directive 85/374/EEC, of  25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products[xxii].

3. CONCLUDING REMARKS

The possibility of a Medical Service Contract in the Portuguese Civil Code, like the Netherlands Civil Code. Is that necessary?

We know that in each legal system, the elements of hard law are just one part of the regulatory environment and, without properly taking into account the larger nature of the regulatory environment, it is difficult to know whether a ‘transplant’ will flourish. That is the point.

There are some authors that are not that devoted to codify special types of contract in general since it tends to reduce the flexibility inherent in contract law. Unless existing solutions found by courts are dissatisfying, one should rather refrain from freezing the status quo as just done in Germany[xxiii] (where one can fear with good reason that it will cause more problems of classification than contribute to better – or at least more predictable – solutions).

Of course that there are pro and con arguments. If one finds a need under Portuguese law[xxiv] to develop it further in the field of medical service contracts, legislative intervention may or may not be useful. The answer to that question will be a helpful contribution to this study irrespective of its outcome.

It is also noted that the encoding of a patients’ rights law facilitates knowledge of these rights, to a more effective protection and a more transparency and legal certainty.

Actualize them through coding jurisprudential guidelines, promoting a culture of avoidable errors, increasing the rights against the institutions with greater involvement of patient information, based on principles of burden of proof, reducing defensive medicine. As in the Netherlands and Germany, other countries followed the same contractual model and also typified the contract to provide medical services in the Civil Code[xxv]. In the current regime in Portugal, the jurisprudence is not yet consolidated, especially in relation to informed consent and responsibility for the risk of public hospitals, in this case to consider de lege ferenda, the ability to always enter into a contract between the patient and the hospital. It appears that the conditions for a legal system to overcome the principle of guilt are complex and difficult. Between us, the legal culture is very traditional, based on comparative law, particularly under German law. The rights of patients, based on the patient’s right to informed consent to or refuse treatment, the right to a clinical process and access to health information, medical confidentiality and treatment according to the legis artis, need a coding unit. Already in 1984, Jorge Sinde Monteiro[xxvi], defended the classification of this medical contract and that “should the courts to make use of the prima facie evidence, as the evidence of difficulties in violation of artis legis and causality are such that there must be room to facilitating proof by presumptions”.

The way that medical liability has followed reveals increasingly greater awareness of the uneven relationship between doctor and patient and, therefore, we must find legal solutions that grant greater protection to the patient. Despite this development of medical liability in Europe seems spectacular it should not be overstated. When we look at the evolution of medical liability it notes that there have been more changes in the last two or three decades of the last century than in the first decade of this century. In the words of Bernhard Koch[xxvii], this “can be explained in part by the movement of the fact that the rights of patients have increased at European level, which has led to some legal systems have improved the situation of patients who have been injured during medical treatment and which could not be sufficiently remedied with traditional instruments for reimbursement of contractual or non-contractual liability”.

Therefore, shifting the burden of proof and the explosion of the doctrine of informed consent are indications of this change, but not necessarily to the same degree in all countries.

[i] Principles, definitions and model rules of European Private Law- Draft Common Frame of Reference (DCFR), Edited by Christian Von BAR et al., Full Edition, Book IV (“Specific Contracts and the rights and obligations arising from them”), Part C (“Services”), Chapter 8 (Treatment), 2009, pp. 1930 seq.

[ii] Council Directive 2006/123/CE, 12 December 2006, OJ 2006, L 376/36.

[iii] Model Rules…, cit., p. 8.

[iv] General Provisions (Book I); Contracts (Book II); Obligations (Book III); Specific Contracts (Book IV); Benevolent Intervention in another affairs (Book V) et al.

[v] JANSEN, N., ZIMMERMANN, “A European Civil Code in All But Name” in Cambridge Law Journal, 2009, pp. 98-112; C. VON BAR, Coverage and Structure of the Common Frame of Reference, ERCL, 2007, passim.

[vi] Services contracts are not regulated in Spain.

[vii] IV.C.-8:101 (1): This Chapter applies to contracts under which one party, the treatment provider, undertakes to provide medical treatment for another party, the patient; (2): It applies with appropriate adaptations to contracts under which the treatment provider undertakes to provide any other service in order to change the physical or mental condition of a person; (3): Where the patient is not the contracting party, the patient is regarded as a third party on whom the contract confers rights corresponding to the obligations of the treatment provider imposed by this Chapter”.

[viii] DCFR, Full Edition, cit., p. 1934.

[ix] See par (3)

[x] SINDE MONTEIRO, “Responsabilidade Médica em Portugal” in Boletim do Ministério da Justiça, 332, 1984, p. 33, says that “there´s no medical contractual liability of the doctor, for his duty, in the public hospital, unless he works there in a private practice”, there is only contractual liability of the hospital.

[xi] HONDIUS, EWOUD, HOOFT, ANNET, “The New Dutch Law on Medical Services” in Netherlands International Law Review, XLIII, Utrecht, 1996, p. 2: “This implies that the patient sometimes has two contracts; one with the hospital authorities for nursing and care and one with the physician for examination and treatment”.

[xii] 8:105 (1): “The treatment provider must, in order to give the patient a free choice regarding treatment, inform the patient about in particular: (a) the patient´s existing state of health; (b) the nature of the proposed treatment; (c) the advantages of the proposed treatment; (d) the risks of the proposed treatment; (e) the alternatives to the proposed treatment, and their advantages and risks as compared to those of the proposed treatment; and (f) the consequences of not having treatment”.

[xiii] 8:105 (2): “The treatment provider must, in any case, inform the patient about any risk or alternatives which might reasonably influence the patient´s decision on whether to give consent to the proposed treatment or not. It is presumed that a risk might reasonably influence that decision if its materialization would lead to serious detriment to the patient. Unless otherwise provided, the obligation to inform is subject to the provisions of Chapter 7 (Information and Advice)”.

[xiv] IV.C.-8:107 (1) “Information which would normally have to be provided by virtue of the obligation to inform may be withheld from the patient: (a) if there are objective reasons to believe that it would seriously and negatively influence the patient´s health or life”.

[xv] “(b): if the patient expressly states a wish not to be informed, provided that the non-disclosure of the information does not endanger the health or safety of third parties”.

[xvi] Article 5 (General Rule) of The European Convention on Human Rights and Biomedicine: “An intervention in the health field may only be carried out after the person concerned has given free and informed consent to it”.

[xvii] IV.C.-8:109 (1): “The treatment provider must create adequate records of the treatment. Such records must include, in particular, information collected in any preliminary interviews, examinations or consultations, information regarding the consent of the patient and information regarding the treatment performed. (2): The treatment provider must, on reasonable request: (a): give the patient, or if the patient is incapable, the person or institution legally entitled to take decisions on behalf of the patient, access to the records; and (b): answer, in so far as reasonable, questions regarding the interpretation of the records”.

[xviii] DCFR, Full Edition, p. 2003.

[xix] Vd., supra IV.C.-8:101 DCFR.

[xx] IV.C.-8:111 (1): “If, in the process of performance of the obligations under the treatment contract, activities take place in a hospital or on the premises of another treatment-providing organization, and the hospital or that other treatment-providing organization is not a party to the treatment contract, it must make clear to the patient that it is not the contracting party. (2): Where the treatment provider cannot be identified, the hospital or treatment-providing organization in which the treatment took place is treated as the treatment provider unless the hospital or treatment-providing organization informs the patient, within a reasonable time, of the identity of the treatment provider. (3): The parties may not, to the detriment of the patient, exclude the application of this Article or derogate from or vary its effects”.

[xxi] When the producer of the product can not to be identified, each supplier shall be treated as its producer unless he informs the injured person within a reasonable time.

[xxii] See http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:31985L0374&from=PT. In Portugal, Vd., SILVEIRA, DIANA, Responsabilidade Civil por Danos Causados por Medicamentos Defeituosos, Centro de Direito Biomédico, 18, Coimbra editora, 2010, pp. 181-224.

[xxiii] Titel 8- “Dienstvertrag und ähnliche Verträge”- Untertitel 2 – “Behandlungsvertrag” §630a- §630h BGB.

[xxiv] See about medical liability in portuguese law, inter alia, RAPOSO, VERA LÚCIA, Do ato médico ao problema jurídico, Almedina, Coimbra, 2015.

[xxv] See http://europatientrights.eu/types/nominate.html.

[xxvi] “Responsabilidade Médica na Europa Ocidental-Considerações de lege ferenda” in Scientia Juridica, Tomo XXXIII, Braga, 1984.

[xxvii] KOCH, BERNHARD A. (Ed.), Medical Liability in Europe: A Comparison of Selected Jurisdictions in Tort and Insurance Law, Vol. 29, De Gruyter, Berlin, 2011, pp. 611 e ss.

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