Obligations, consent and contracts in Scots law: re-analysing the basis of medical malpractice liability in light of Montgomery v Lanarkshire Health Board

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Abstract

Professors 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'. That this definition recognises the possibility of a gratuitous contract (i.e., a contract which is not underpinned by consideration) may puzzle Anglo-American lawyers, but Scots law, following Canon law in repudiating the rule ex nudo pacto actio non oritur [no action arises from a bare agreement], 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]. Thus, the Scots law of obligations regards, as binding, agreements which are not underpinned by any 'consideration', as well as unilateral promises – even where the content of said promise is not communicated to the beneficiary of said promise.
Consent, rather than 'consideration', thus underpins all contracts governed by Scots law. This, naturally, has the potential to be of great significance within the context of physician/patient relationships, particularly since the 2006 case of Dow v Tayside University Hospitals 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. 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'.
Original languageEnglish
Number of pages26
JournalLegal Studies
Early online date18 Jan 2021
DOIs
Publication statusE-pub ahead of print - 18 Jan 2021

Keywords

  • obligations
  • delict
  • informed consent
  • medical
  • medical law
  • best interests
  • negotiorum gestio
  • injury
  • contract

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