Medical Law Exam Notes
MEDICAL LAW NOTES
Semester 1 2011
Compiled by Gabe and Will
Contents
Topic 1: Contract, Battery & Negligence
In order to place medical law in its context, each of the potential actions for redress will be explored.
Contract – Medicine as trade
Existence of contract
A contract is an agreement between two (or more) parties
3 elements required for a contract to exist
Offer and acceptance (also called agreement)
Consideration
Intention to create legal relations
In the context of a standard doctor-patient interaction, these can all be satisfied
“The relationship between doctor and patient is contractual in origin, the doctor performing services in consideration for fees payable by the patient.” - Sidaway v Board of Governors of Bethlem Royal Hospital [1985] 1 A.C. 871 at 873 per Lord Templemen
Acceptance
Who makes the offer in a doctor-patient relationship?
Basic principle of ‘who makes the offer’ comes from Pharmaceutical Society of Great Britain v Boots Cash Chemists (Southern) Ltd [1953] 1 QB 401
Presentation of goods on a shelf was an invitation to treat; customer’s picking up of good from a shelf and presenting them for payment was an offer to buy (see Lord Birkett LJ)
Devereux: the better view is that the doctor makes the offer, and the patient accepts
However Picard (article Legal Liabilities of Doctors and Patients in Canada) – a patient’s request for treatment is regarded as the offer, and acceptance is signified by the doctor’s undertaking of the treatment
This is a direct application of Boots, it would seem
Remember – this is unsettled!
In an exam question, bring up both arguments and make a decision as to which one fits better/would be accepted by the court
Consideration
Recap: consideration is the price paid for the bargain
In the doctor-patient relationship, this is a promise to pay money: affirmed in Sidaway
“…performing services in consideration for fees payable by the patient”.
What if the patient cannot pay?
Money
Semester 1 2011
Compiled by Gabe and Will
Contents
Topic 1: Contract, Battery & Negligence
In order to place medical law in its context, each of the potential actions for redress will be explored.
Contract – Medicine as trade
Existence of contract
A contract is an agreement between two (or more) parties
3 elements required for a contract to exist
Offer and acceptance (also called agreement)
Consideration
Intention to create legal relations
In the context of a standard doctor-patient interaction, these can all be satisfied
“The relationship between doctor and patient is contractual in origin, the doctor performing services in consideration for fees payable by the patient.” - Sidaway v Board of Governors of Bethlem Royal Hospital [1985] 1 A.C. 871 at 873 per Lord Templemen
Acceptance
Who makes the offer in a doctor-patient relationship?
Basic principle of ‘who makes the offer’ comes from Pharmaceutical Society of Great Britain v Boots Cash Chemists (Southern) Ltd [1953] 1 QB 401
Presentation of goods on a shelf was an invitation to treat; customer’s picking up of good from a shelf and presenting them for payment was an offer to buy (see Lord Birkett LJ)
Devereux: the better view is that the doctor makes the offer, and the patient accepts
However Picard (article Legal Liabilities of Doctors and Patients in Canada) – a patient’s request for treatment is regarded as the offer, and acceptance is signified by the doctor’s undertaking of the treatment
This is a direct application of Boots, it would seem
Remember – this is unsettled!
In an exam question, bring up both arguments and make a decision as to which one fits better/would be accepted by the court
Consideration
Recap: consideration is the price paid for the bargain
In the doctor-patient relationship, this is a promise to pay money: affirmed in Sidaway
“…performing services in consideration for fees payable by the patient”.
What if the patient cannot pay?
Money