‘The doctor who abuses his relationship with his patient by demanding sexual
favours in return for drugs does not have ‘profits’ to disgorge; he is not required to be
‘loyal’, in the sense intended in fiduciary cases. He is required to act in the interests
of his patients, however, and if this obligation does not adequately meet the
particular facts then direct law reform is needed, not a fiduciary fudge.’ (Sarah
Worthington, Equity (2006))
Discuss this statement with reference to English, Australian and Canadian case law.
Fiduciary obligations impose a duty of loyalty and good faith on the fiduciary. The
aim of these obligations is to limit the scope for abuse, such as the fiduciary acting at
the beneficiary’s expense for their personal gain and self-interest. In contrast to
commercial or contractual dealings where parties are seen to be operating in their
own self-interest, fiduciary obligations concern selflessness, and the spirit of
altruism. In the Bray v Ford (1896)1 case, there is an explicit reference to human
nature. It follows the theory that humans naturally act in their own self-interest and
that this, especially with equity, needs to be corrected. Bristol v Mothew2 emphasized
two central duties arising from the duty of loyalty and good faith. Firstly, the fiduciary
has a duty not to put themselves in a situation where there may be a conflict
between their duty and interests, and a duty to not have secret profits.
There are relationships that are “indisputably fiduciary in nature.” 3 These
include agents and principals, solicitors and clients, employers and employees, and
more. Though a doctor and patient relationship is not one that would be a status-
based fiduciary relationship, courts have made it clear that this list is not exhaustive.
It is beneficial for claimants to establish a fiduciary relationship where they can and
claim for breach of fiduciary obligations. In doing this, the claimant can then claim for
an account for profits or obtain a constructive trust, or any profit or money gained
can be returned to the principal. Claiming remedies in a drugs for sex deal may be
1
Bray v Ford [1896] AC 44
2
Bristol and West Building Society v Mothew [1998] CH 1
3
Shaunnagh Dorsett, 'Comparing Apples And Oranges: The Fiduciary Principle In Australia And
Canada After Breen V Williams' (1996) 8 Bond Law Review.
, difficult to do under the tort of professional negligence, in which claiming for
psychiatric harm may be difficult in relation to establishing causation.
In order to discuss Sarah Worthington’s statement and conclude whether the doctor
and patient relationship will be found to be of fiduciary character, we must look at the
respective case law in England, Australia and Canada.
England:
In England, the Law Commission Report 1995 ‘Fiduciary Duties and Regulatory
Rules’4 describes a fiduciary relationship as one where a person “undertakes to act
on the behalf or for the benefit of another person, often as an intermediary with a
discretion of power,”5 which affects the other person’s “interests who depends on the
fiduciary’s information or advice.” 6 It can be argued that a doctor’s job is to act in
relation to the patient’s health and that abusing this power would directly affect the
patient’s interests. Furthermore, if the patient is a drug user, there may be more
significance on the doctor’s assumption to act in relation to their health and their
interests may be more significantly impacted.
Unfortunately for the claimant, by looking at the precedent it does not seem
that in England, this relationship would be seen as being of fiduciary character. We
can see this through the case which “set English law in stone”7 in reference to
doctors, patients and fiduciary relationships - Sidaway v Bethlem Royal Hospital
Governors [1985].8 In this case, Lord Scarman stated that though the doctor and
patient relationship is special, there is “no comparison” 9 between it and “that of a
solicitor and client, trustee and cestui qui trust or other relationships treated in equity
as of a fiduciary character.” 10 Browne-Wilkinson stated that this was due to the fact
there was no evidence the doctor was abusing this relationship for ‘secret profits.’ 11
4
Law Commission Report 1995, Fiduciary Duties and Regulatory Rules, part 1, section 1.3
5
Ibid.
6
Ibid.
7
Peter Bartlett, 'Doctors as Fiduciaries: Equitable Regulation of the Doctor-Patient Relationship’
(1997) 5 Medical Law Review.
8
Sidaway (A.P.) v Bethlem Royal Hospital and The Maudesley Hospital Health Authority and
Others [1985] UKHL J0221-1
9
Ibid.
10
Ibid.
11
Ibid.
favours in return for drugs does not have ‘profits’ to disgorge; he is not required to be
‘loyal’, in the sense intended in fiduciary cases. He is required to act in the interests
of his patients, however, and if this obligation does not adequately meet the
particular facts then direct law reform is needed, not a fiduciary fudge.’ (Sarah
Worthington, Equity (2006))
Discuss this statement with reference to English, Australian and Canadian case law.
Fiduciary obligations impose a duty of loyalty and good faith on the fiduciary. The
aim of these obligations is to limit the scope for abuse, such as the fiduciary acting at
the beneficiary’s expense for their personal gain and self-interest. In contrast to
commercial or contractual dealings where parties are seen to be operating in their
own self-interest, fiduciary obligations concern selflessness, and the spirit of
altruism. In the Bray v Ford (1896)1 case, there is an explicit reference to human
nature. It follows the theory that humans naturally act in their own self-interest and
that this, especially with equity, needs to be corrected. Bristol v Mothew2 emphasized
two central duties arising from the duty of loyalty and good faith. Firstly, the fiduciary
has a duty not to put themselves in a situation where there may be a conflict
between their duty and interests, and a duty to not have secret profits.
There are relationships that are “indisputably fiduciary in nature.” 3 These
include agents and principals, solicitors and clients, employers and employees, and
more. Though a doctor and patient relationship is not one that would be a status-
based fiduciary relationship, courts have made it clear that this list is not exhaustive.
It is beneficial for claimants to establish a fiduciary relationship where they can and
claim for breach of fiduciary obligations. In doing this, the claimant can then claim for
an account for profits or obtain a constructive trust, or any profit or money gained
can be returned to the principal. Claiming remedies in a drugs for sex deal may be
1
Bray v Ford [1896] AC 44
2
Bristol and West Building Society v Mothew [1998] CH 1
3
Shaunnagh Dorsett, 'Comparing Apples And Oranges: The Fiduciary Principle In Australia And
Canada After Breen V Williams' (1996) 8 Bond Law Review.
, difficult to do under the tort of professional negligence, in which claiming for
psychiatric harm may be difficult in relation to establishing causation.
In order to discuss Sarah Worthington’s statement and conclude whether the doctor
and patient relationship will be found to be of fiduciary character, we must look at the
respective case law in England, Australia and Canada.
England:
In England, the Law Commission Report 1995 ‘Fiduciary Duties and Regulatory
Rules’4 describes a fiduciary relationship as one where a person “undertakes to act
on the behalf or for the benefit of another person, often as an intermediary with a
discretion of power,”5 which affects the other person’s “interests who depends on the
fiduciary’s information or advice.” 6 It can be argued that a doctor’s job is to act in
relation to the patient’s health and that abusing this power would directly affect the
patient’s interests. Furthermore, if the patient is a drug user, there may be more
significance on the doctor’s assumption to act in relation to their health and their
interests may be more significantly impacted.
Unfortunately for the claimant, by looking at the precedent it does not seem
that in England, this relationship would be seen as being of fiduciary character. We
can see this through the case which “set English law in stone”7 in reference to
doctors, patients and fiduciary relationships - Sidaway v Bethlem Royal Hospital
Governors [1985].8 In this case, Lord Scarman stated that though the doctor and
patient relationship is special, there is “no comparison” 9 between it and “that of a
solicitor and client, trustee and cestui qui trust or other relationships treated in equity
as of a fiduciary character.” 10 Browne-Wilkinson stated that this was due to the fact
there was no evidence the doctor was abusing this relationship for ‘secret profits.’ 11
4
Law Commission Report 1995, Fiduciary Duties and Regulatory Rules, part 1, section 1.3
5
Ibid.
6
Ibid.
7
Peter Bartlett, 'Doctors as Fiduciaries: Equitable Regulation of the Doctor-Patient Relationship’
(1997) 5 Medical Law Review.
8
Sidaway (A.P.) v Bethlem Royal Hospital and The Maudesley Hospital Health Authority and
Others [1985] UKHL J0221-1
9
Ibid.
10
Ibid.
11
Ibid.
