Legal Parameters to Medical, Ethical and Professional Responsibilities: Are Doctors Appropriately Categorised as Fiduciaries

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Guy, Scott
Ann Hocking, Barbara
Muirhead, Stewart
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2004
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Abstract

The fundamental principles of medical negligence may be constant but the nature of these incidents is perpetually evolving. Across the common law world there has been a largely judicially imposed rising standard of care expected of the medical practitioner. This paper attempts to outline the various legal requirements and the duty owed by the medical practitioner as articulated by law. It focuses on the new issues facing the medical profession and asks whether a more flexible approach, one observed most particularly in the Canadian context, and one drawing on the concept of fiduciary obligation, might create appropriate legal boundaries to deal with those issues. Taking account of the so-called 'litigation crisis' in Australia (1), our analysis examines the doctrine of fiduciary duties, as it is presently understood, and asks whether it can be developed to provide adequate legal boundaries to the professional and ethical conduct of psychiatrists in particular. Special attention is paid to the recent Australian decision of B -v- Marinovich (2) , and the approach taken by the court in seeking to define a fiduciary relationship between doctor and patient. A review of comparative jurisdictions is further undertaken to support the argument that fiduciary duties can be expanded to create new standards in the context of medical negligence. By way of contrast, the paper then compares the ethical considerations arising in the legal profession in the context of their insurance arrangements, and examines the approach taken by the courts in defining those duties. The comparison is undertaken to demonstrate the court's ability to formulate the principle governing the fiduciary obligations of professionals.

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McGill Journal of Medicine

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7

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2

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Law not elsewhere classified

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