Abstract
AbstractProfessors MacQueen and Thomson have defined ‘contract’, within Scots law, as denoting ‘an agreement between two or more parties having the capacity to make it, in the form demanded by law, to perform, on one side or both, acts which are not trifling, indeterminate, impossible or illegal’. This definition reflects the fact that Scottish contracts are underpinned by consent, rather than by ‘consideration’. This, naturally, has the potential to be of great significance within the context of physician/patient relationships, particularly since the 2006 case ofDow v Tayside University Hospitals NHS Trustacknowledged that these relationships could be contractual in nature. This observation is of renewed importance since the landmark decision inMontgomery v Lanarkshire Health Board, which found that physicians must ensure that they obtain full and freely given ‘informed consent’ from their patients, prior to providing medical services. In light of the present medical regime which requires ‘doctor and patient [to] reach agreement on what should happen’, the basis of liability for medical negligence, in Scotland, requires reanalysis: ‘To have a contract only when the patient pays is not consistent with a legal system which has no doctrine of consideration in contract’.
Highlights
This, naturally, has the potential to be of great significance within the context of physician/patient relationships, since the 2006 case of Dow v Tayside University Hospitals National Health Service (NHS) Trust acknowledged that these relationships could be contractual in nature
This observation is of renewed importance since the landmark decision in Montgomery v Lanarkshire Health Board, which found that physicians must ensure that they obtain full and freely given ‘informed consent’ from their patients, prior to providing medical services
This, naturally, has the potential to be of great significance within the context of Scottish NHS physician/ patient relationships,12 since the 2006 case of Dow v Tayside University Hospitals NHS Trust13 acknowledged that these relationships could conceivably be contractual in nature
Summary
Professors MacQueen and Thomson have defined ‘contract’ as ‘an agreement between two or more parties having the capacity to make it, in the form demanded by law, to perform, on one side or both, acts which are not trifling, indeterminate, impossible or illegal’.1 That this definition recognises the possibility, outside the concurrent creation of some formal deed,2 of a gratuitous contract (ie a contract which is not underpinned by consideration) may puzzle Anglo-American lawyers,3 but Scots law, following Canon law in repudiating the maxim ex nudo pacto actio non oritur [no action arises from a bare agreement],4 has long recognised that ‘every paction produceth action, et omne verbum de ore fideli cadit in debitum’ [and every word spoken in faith creates a debt].5 the Scots law of obligations accepts, as binding, agreements which are not underpinned by any ‘consideration’6 as well as unilateral promises7 – even where the content of said promise is not communicated to the beneficiary of the promise.8 Contracts and binding promises are formed, where the contracting parties or the promisor ‘engage’ with another person (who may potentially be innominate, the engagement being directed to the world at large)9 so as to demonstrate an intention to create, and be bound by, a legal obligation.10Consent, rather than ‘consideration’, underpins all contracts governed by Scots law.11 This, naturally, has the potential to be of great significance within the context of Scottish NHS physician/ patient relationships,12 since the 2006 case of Dow v Tayside University Hospitals NHS Trust13 acknowledged that these relationships could conceivably be contractual (or promissory) in nature.14 Though this case attracted little subsequent scholarly or judicial comment,15 the observations of counsel and of Sheriff Fletcher are of renewed importance since the landmark decision in Montgomery v Lanarkshire Health Board.16 In that case, the UK Supreme Court (UKSC) found that physicians must ensure that they obtain full and freely given ‘informed consent’ from their patients, prior to providing medical services.
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