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Dr Richard Tjiong – A Caring Profession – Are Physicians Fiduciaries

A Caring Profession

The medical profession is an ancient and caring profession characterised by its members’ commitment to serve and uphold the interests of their patients. It is part of the wider healthcare professions with similar dedication. There are also other vocations where the givers likewise put the interests of members of the community above their own.

The English common law recognises fiduciary relationship, underpinned by trust and confidence, where there is an imbalance of power and where the giver in the relationship undertakes to look after the interests of the receiver. However, recognition by English common law has been more narrowly restricted to relationships that involve financial interests or material rights. The law recognises a number of categories of fiduciaries: solicitor (and accountant) with their client, trustee and beneficiary, company director and shareholders, etc. The law is invoked where there is a conflict of interests between the two parties and the giver breaches their fiduciary duties.

The common law in England and Australia does not recognise doctors and health workers as fiduciaries. The subject of care in a doctor-patient relationship is the wellbeing of the patient and not the patient’s financial or material interest. Their relationship is covered by the laws relating to civil wrongs such as negligence and to contracts where the two parties are treated more or less as “equal neighbours”.

The provision of healthcare services in Australia has been increasingly influenced by commercial interests; this may seem to be partly caused by the introduction of universal health care in 1974. Rapid changes in medicine and the increasing workloads on health professionals may also have contributed. Large number of medical centres have evolved as commercial entities and their shareholders rightly demand returns on their capital investments. There is some risk of healthcare services being treated as commodities and traded for fees, while the humanistic nature of care inadvertently takes second place.

From my personal administrative experience, many patients who sued doctors for negligence have done so not because the doctor was necessarily negligent, but because an unhappy patient perceived the doctor did not care. There is a need, more than ever before, for healthcare professionals to reaffirm their caring commitments to their patients. To state the obvious, society expects doctors and other healthcare workers to be caring; society should therefore uphold, encourage and promote this high community value.

I reflect on an article published when I was president of the NSW Medical Defence Union.


Are Physicians Fiduciaries?

Reproduced from The Australian Law Journal 1993 Volume 67 at p. 436.

Richard Tjiong
MB, BS (Syd), FRCS(Ed), FRACS,
Dip Law (Barristers Admission Board).

Anglo-Australian law has not expressly recognised the relationship between physician and patient as being fiduciary in nature. Developments in North America suggest a wind of change. Two decisions of the Supreme Court of Canada delivered in June 1992 have expressly included physicians in the category of fiduciaries: Norberg v Wynrib[i] and McInerney v MacDonald[ii].

Norberg v Wynrib

The plaintiff was a patient who was addicted to pain-killers. The defendant, an elderly doctor, traded prescriptions for sex. The relationship continued on for 12 months. The doctor made no attempt to help the patient with the addiction. The patient admitted that the doctor did not at any time use physical force, that he did favours for her, and that she “played” on the fact that he liked her and she knew throughout the relationship that he was lonely.

She was eventually charged with the summary conviction offence of “double-doctoring” under the Narcotic Control Act, that is, obtaining narcotic prescription drugs from a doctor without disclosing particulars of prescriptions from other doctors. She subsequently underwent a successful rehabilitation from her addiction.

The action based on sexual assault, negligence, breach of contract and breach of fiduciary duty failed at the trial. The trial judge, Oppal J, rejected the claim of sexual assault on the finding that there was consent. The Judge found the doctor professionally negligent in continuing to prescribe the drug of addiction, but was unable to find compensable damage. He recognised that the relationship between the parties was one of trust and confidence, traditionally the hallmark of a fiduciary duty. He found the doctor had breached his duty, but barred the plaintiff from recovering because of her own illegal and immoral acts.

An appeal to the British Columbia Court of Appeal[iii] was dismissed. The majority, McEachern CJ and Gibbs JA, held that the trial judge was correct in dismissing the sexual assault claim on the basis that the patient had consented. McEachern CJ agreed that the doctor had breached his professional duty, and further found that there was sufficient harm done by the appellant’s continued addiction to support a cause of action, but reduced the damages in part by the appellant’s own contributory negligence as a “knowing participant in her own misfortune”.

The majority Judges rejected the claim of breach of fiduciary duty finding that “unless the breach relates to an improper disclosure of confidential information or something like that, it adds nothing to describe the breach as a fiduciary one “.[iv] The majority found that the principle of ex turpi causa non oritur actio was applicable.

Locke JA, dissenting, found the doctor negligent in that the appellant was subjected to drug addiction for an extended period, and further held that this amounted to foreseeable damage. He agreed that the sexual assault claim failed because of the appellant’s consent. He found no evidence to support any equitable rule operating to show the existence of a fiduciary relationship. The doctor revealed the patient’s affairs to no one and he did not unduly influence her. Locke JA disagreed that there was any illegal or immoral act that would effectively bar the appellant’s claim.

The appellant succeeded on a further appeal to the Supreme Court [the highest court in Canada], the members of which delivered three decisions which approached the finding of liability from three differing perspectives. La Forest J (Gonthier and Cory JJ concurring), held the respondent liable for battery. He used the equitable doctrine of unconscionable transactions to negate the defence of consent. He did not find a need to consider fiduciary duty.

Sopinka J treated the matter simply as the contractual or tortious breach of the physician’s duty to his patient. He rejected La Forest J’s battery approach on the basis that the doctrine of unconscionable transactions had hitherto been confined to setting aside unconscionable contracts, and that, where applicable it serves not to negate consent but to set aside an agreement on grounds of inequality of bargaining power and unfairness.

Sopinka J recognised that some aspects of the physician-patient relationship may be fiduciary, but found no such duty relevant to the acts alleged by the appellant. He adopted the majority view at the Court of Appeal, confining breach of fiduciary duty to “improper disclosure of confidential information or something like that”.

McLachlin J (L’Heureux-Dubè J concurring) found the defendant liable for breach of fiduciary duty. She stated:

“[I do] not find that the doctrines of tort or contract capture the essential nature of the wrong done … Only the principles applicable to fiduciary relationships and their breach encompass it in its totality”.[v]

She took the comparison further.[vi]  In negligence and contract the parties are taken to be independent and equal actors, concerned primarily with their own interest. The law seeks to find a balance between enforcing obligations and preserving optimum freedom for the parties. The essence of the fiduciary relationship, by contrast, is that one party exercises power on behalf of another and pledges himself or herself to act in the best interests of the other. The fiduciary relationship has trust, not self-interest, at its core, and when a breach occurs, the balance referred to above tilts in favour of the person wronged.

She quoted with approval Wilson J in Frame v Smith[vii], who attributed the following characteristics to a fiduciary relationship:

“(1) The fiduciary has scope for the exercise of some discretion or power;

(2) The fiduciary can unilaterally exercise the power or discretion so as to affect the beneficiary’s legal or practical interests;

(3) The beneficiary is peculiarly vulnerable or at the mercy of the fiduciary holding the discretion or power” [emphasis added].

The existence of discretion or power needs little elaboration. The second characteristic introduces a concept which extends beyond the confines of traditional legal interests. It concerns, in the case on appeal, “the protection of interests, both societal and personal, of the highest importance”. The plaintiff “has a striking personal interest in obtaining professional medical care free of exploitation for the physician’s private purposes”.[viii]

Her Honour emphasised[ix] that fiduciary obligations are capable of protecting not only narrow legal and economic interests, but can also serve to defend fundamental human and personal interests. It seems that it is this extension beyond the traditional interests protected by the doctrine of fiduciary that now reaches the physician-patient relationship. Furthermore, McLachlin J referred to the third element of vulnerability as stemming from the structure and nature of the fiduciary relation, rather than vulnerability per se.

Her Honour summarised the criteria for the imposition of fiduciary duty as follows: there must be an imbalance of power, a potential for interference with a legal or a non-legal interest, and a commitment made by the fiduciary to look after the interest of the beneficiary. Her Honour was of the opinion that the presence of these criteria and their application would negate the contention that her decision would open the floodgates to unfounded claims. She held that the doctrine of ex turpi did not apply as the plaintiff did nothing wrong in the context of the fiduciary relationship.

La Forest J (Gonthier and Cory JJ concurring) awarded compensatory damages including aggravated damages of $20,000 and punitive damages of $10,000. Sopinka J agreed with La Forest J in awarding compensatory damages of $20,000, but did not feel that punitive damages were appropriate. McLachlin J, (L’Heureux-Dubè J concurring) awarded $20,000 for prolonging the plaintiff’s addiction, $25,000 for sexual exploitation, and $25,000 punitive damages.

McInerney v MacDonald

A patient with a thyroid condition asked her doctor for copies of her complete medical files. The doctor limited her patient’s access to copies of papers she had prepared herself, but refused access to records she had received from other physicians who had previously treated the patient, stating that they were the property of those physicians.

The doctor failed at the trial, and her appeals to the Court of Appeal for New Brunswick and to the Supreme Court of Canada were dismissed. The Supreme Court delivered a joint judgment by La Forest, L’Heureux-Dubè, Gonthier and Iacobucci JJ.

The Supreme Court held that the fiduciary nature of a physician-patient relationship is founded on trust and confidence. The physical ownership of the record lies with the physician, who holds it in trust for the benefit of the patient. The “beneficial interest” of the patient in the information in her record indicates that she has a right of access and the physician a corresponding obligation to provide it. The equitable interest continues when information is conveyed to another doctor. The duty to act with utmost good faith and loyalty
is inherent within the relationship of trust.

The duty of confidentiality is meant to encourage disclosure of information and communication between doctor and patient; the trust reposed in the physician by the patient mandates that the flow of information operates both ways. Access is limited to the information the physician obtained in providing treatment. It was held not to extend to information arising outside the doctor-patient

The Court explored the existence of a “proprietary interest” by the patient in her record, but resiled from this common law characterisation. Finally, the Court grounded “therapeutic privilege” (the term was not used in the judgment) as an exception to the general rule, but put a heavy burden of proof on the physician.


A number of interesting points arises from these judgments. First, there are many professional relationships which are characterised by the presence of trust and confidence as well as an imbalance of power (the hallmarks of fiduciary duty) and where the interests of the beneficiaries are not of a financial or a legal nature. These interests are currently outside the protection of the law relating to fiduciary duty in Australia. The healthcare profession arguably ranks first among these vocations, where the need for accountability in some circumstances may not be fully or appropriately addressed under traditional tort law. The technique adopted by McLachlin J in Norberg seems both credible and persuasive; it remains to be seen if the expanded doctrine of fiduciary duty as it applies to physicians in Canada will be given a similar recognition in Australian law, and if so, how the courts will determine the scope of the obligation. Secondly, the Jurisdiction to award damages in equity is different from that in common law. If the principles in Norberg are accepted, it will be of interest to see how equity will deal with the assessment of damages for non-financial loss. Thirdly, given that equity courts are known as courts of “conscience”, it seems apt that another ancient profession known for its noble calling should be held accountable under the rules of equity; the utility function of equity in this context is barely tapped in our legal system.

[i]    (1992) 92 DLR (4TH) 449.

[ii]    (1992) 137 NR 35.

[iii]   (1990) 66 DLR (4th) 553.

[iv]   Ibid, at 556.

[v]    Supra, n l, at 484.

[vi]   Ibid, at 485-488.

[vii]  (1987) 42 DLR (4th) 81 at 89.

[viii] Supra, n l, at 490.

[ix]   Ibid, at 499.


Post Script


After the publication of the above article in 1993, the High Court of Australia (Breen v Williams, 1996), deflected the wind of change that flowed from Canada. In the line of judges from the trial to the ultimate appeal in the High Court, one lone judge in the NSW Court of Appeal involved in that case, Michael Kirby J., supported the concept that aspects of doctor-patient relationship are fiduciary in nature. I am not aware of any other decision in an Australian court that has since dealt with the subject.

 Dr Richard Tjiong

Dr Richard Tjiong – Doctors’ Duty in Medical Emergencies

The medical profession has generally been held in high regards throughout the world, largely because of the humanistic and caring nature of the services they provide and their commitment to put the interest of their patients first and foremost. This commitment and the corresponding community expectation are founded on medical ethics and enforced within their licence to practise. Aspects of the English common law[i] also bind them to these obligations.

There is little dispute as to whom they owe their obligations to whilst they are on duty. When it comes to their obligations while they are off duty in situations of medical emergency, the licensing boards and the common law seem to have differing approaches.

Hippocratic Oath and Medical Ethics

For over two thousand years, the Hippocratic Oath has formed the basis for the codes of ethics for doctors in most of the western world. In 1949, the General Assembly of the World Medial Association formulated its own code and adopted the following wordings: “A physician shall give emergency care as a humanitarian service unless he/she is assured that others are willing and able to give such care.” National Medical Associations in constituent countries have incorporated this principle in their Codes of Conduct.

The British General Medical Council has this to say: “You must offer help if emergencies arise in clinical setting or in the community, taking account your own safety, your competence and the availability of other options for care.”

The Australian Medical Council and the Medical Board of Australia adopt identical statement at paragraph 2.5 of their Code of Conduct: “Good medical practice involves offering assistance in an emergency that takes into account of your own safety, your skills, the availability of other options and the impact on any other patients under your care; and continuing to provide that assistance until your services are no longer required.”

Licensing Board

In Australia, this ethical principle has been enshrined in Section 139C(c) of the  Health Practitioner Regulation National Law[ii] which states that a doctor may be guilty of unsatisfactory professional conduct if they refuse or fail, without reasonable cause, to assist a person in need of urgent attention.

In recent time, two cases are worth noting. The Medical Board of Australia found unsatisfactory professional conduct when a doctor denied that he was a doctor when asked by a stranger in need of urgent attention outside his clinic.[iii] However and in contrast, the West Australian Supreme Court of Appeal dismissed a finding of professional misconduct by the State Administrative Tribunal (of WA) when the doctor left a scene of accident at night without stopping to render assistance after a near miss, the doctor did not have a torch, any medical equipment or mobile phone, but she drove to the nearest police station and reported the accident.[iv]

The Common Law and a Doctor on Duty

The common law in England, Australia, Canada and the USA mandate doctors’ obligation to respond to medical emergencies while they are on duty- this means that over and above their duties to their existing patients, they do have a duty of care to their non-patient strangers who are attending their clinics or the hospitals in which the doctors are employed or when the doctors are visiting in their medical capacity.

In Australia, a doctor on duty may have a common law obligation also to attend non-patients in the streets or in public places in emergencies under certain circumstances. The NSW Court of Appeal set the precedent in 1996 in a well-publicised case of Lowns v Wood[v].

The facts established in the trial[vi] are as follows. Eleven years old Patrick Woods suffered severe neurologic impairment as a result of a prolonged epileptic fit while on holiday in the New South Wales Central Coast in 1987. His sister allegedly sought the assistance of a general practitioner, Dr. Lowns, who – the sister said – refused to attend. Dr. Lowns failed in his defence based on mistaken identity. Patrick’s lawyers were able to establish that at the time when Dr Lowns was approached, he was in his surgery ready to start the day’s clinic but with no other patient present, notwithstanding that the fact that his support staff had not arrived and his clinic was not yet open.

The common law of negligence is based on the existence of a duty of care between “neighbours”.[vii] The trial judge[viii] found that there is sufficient neighbourly relationship between Dr. Lowns and Patrick to create the legal obligation of a duty of care under the common law, and that Dr. Lowns had breached his duty of care by not attending Patrick. The judge found that Dr Lowns was:

“…at his place of practice… ready to begin his day’s work and not yet occupied in any other professional activity which would preclude his treating [Patrick]… What was asked of him involved no health or safety risk to himself; and he was not disabled by any physical or safety risk to himself; and he was not disabled by any physical or mental condition from travelling and treating [Patrick].”[ix]

The New South Wales Court of Appeal upheld the finding of the trial judge, with President Kirby and Cole JA concurring, and Mahoney JA dissenting.

Cole JA affirmed the trial judge’s observation that “[in] general, the common law does not impose a duty of care to assist a person in peril even when it is foreseeable that the consequence of a failure to assist will be the injury or death of the person imperilled” and that there are case law precedents to the effect that a doctor is under no common law duty to attend a person who is sick even in an emergency if that person is one with whom the doctor is not and has never been in a professional relationship.

However, Cole JA found that there was obvious “physical and circumstantial proximity” between Dr. Lowns and Patrick in that Dr. Lowns was directly requested for assistance and that there was no impediment for him to attend; the trial judge had also found that the administering of intravenous Valium would have ended the status epilepticus before the onset of brain damage. Cole JA found that all these elements matured into a legal proximity, which created a duty of care between Dr. Lowns and Patrick.

Kirby P agreed with the analysis of Cole JA. He added that the standard requiring a doctor to attend in an emergency is a high standard which goes far beyond what is expected of other professions, “[but] in the noble profession of medicine, it is the rule which parliament has expressed [in the Medical Practitioners Act], which the organised medical profession has accepted, and which Dr. Lowns himself has acknowledged and did not contest.”

Mahoney JA, in a dissenting judgment, states that moral and professional obligations alone are insufficient to extend the obligation into a common law duty. An obligation to attend an emergency on request needs take into account the professional qualification and skill of the doctor and the circumstances of the call. It would be inappropriate to enforce such an obligation by the law as it would have required many qualifications and exceptions.

While the courts extended the common law duty where Patrick was a stranger to the doctor, Dr Lowns was found in breach of his duty because, when approached by Patrick’s sister, he was already on duty in his surgery- Dr Lowns was in “a professional context”. Secondly, some medical commentators mistakenly consider the law as being peculiarly applicable only to courts in the State of NSW. The law was made by the Court of Appeal- the highest court in the state of New South Wales; its decisions bind not only the Supreme Courts (and other inferior courts) in that State, but these decisions are highly persuasive and virtually bind the Supreme Courts and other inferior courts in all Australian jurisdictions- they are also likely to be followed by the Courts of Appeal in the remaining states and can be displaced only by the High Court of Australia or by an act of parliament.

Summary and Conclusion

Attending emergencies when one is not on duty is essentially a Good Samaritan act. In Australia, the Civil Liability Act protects a Good Samaritan from liability in negligence providing the negligence is not gross.[x] The legislative protection was put in place so as not to deter a doctor from being involved as a Good Samaritan. There is therefore no excuse for a doctor not to respond in times of emergency where-ever the doctor may be and whenever the occasion is unless there is some mitigating circumstance.

Not to respond whether the doctor is on or off duty may invoke sanction by the Medical Board with possible consequences to their license to practise. Not to respond when a doctor is on duty or in “professional context” may involve an additional sanction by a common law court in an action for negligence, where the aggrieved patient may be awarded damages.

It seems that common law courts have so far not reached a doctor who is off duty and unwilling to be a Good Samaritan.  However, it is open for a court to extend this boundary in certain circumstances. What if the doctor is off duty but they make it known to world that he/she is  a doctor, such as when they board an aeroplane bearing the title “doctor” or when they innocently make a restaurant reservation in the name of a doctor, or when they simply drive around in a car bearing a doctor’s badge? In these circumstances, the court may take the view that they have held themselves out as a doctor with an implied offer of services and with all the attendant obligations- a court may find that they should act like a doctor by responding to an emergency, especially when asked to do so. The position of negligence law is less clear when a doctor is incognito while off duty but fails to respond to a call “is there a doctor in the house?” In these circumstances the doctor may still face disciplinary action by the licensing authority.

On the positive side, and given the protection by the law for Good Samaritans, a doctor should not hesitate to conform to their calling when facing an emergency- one can only do one’s best in the circumstance and wait for help.

Richard Tjiong,

MBBS (Syd.), FRACS, FRCSEd, Dip. Law (Barristers Admission Board), FACLM,

Sydney 18 February 2015.

[i]     Judge-made law in contrast to legislations made by parliaments.

[ii]     This section is quoted from the NSW legislation, similar enactments exists in other Australian jurisdictions.

[iii]    Hoffman v Medical Board of Australia [2012] WASAT110.

[iv]    Dekker v Medical Board of Australia [2014] WASCA 216.

[v]     Lowns v Woods (1996) Aust. Torts Reports 81

[vi]    Woods v Lowns (1995) 36 NSWLR 344 (Badgery-Parker J at the trial).

[vii]   While this concept is derived from Biblical principle “thou must love thy neighbour”, the court defines who the neighbours are for the purposes of negligence law.

[viii]   Woods v Lowns (1995) 36 NSWLR 344 (Badgery-Parker J at the trial).

[ix]    Ibid 360.

[x]     Civil Liability Act (2002) NSW ss55-58; other states and territories have similar enactments and provisions.

Dr Richard Tjiong