The doctor’s contractual obligations
As we saw in our article on the Mercier decision, doctors are bound by genuine contractual obligations towards their patients.
In practical terms, the doctor’s main obligations towards his patient include the following:
– Make and establish a diagnosis.
– Provide rigorous care, i.e. care that is conscientious, attentive and, above all, in accordance with the latest scientific knowledge at the time it is given.
– Obtain free and informed consent.
– Respect professional secrecy.
Furthermore, according to article R4127-35 of the French Public Health Code:
“The doctor must provide the person he is examining, treating or advising with fair, clear and appropriate information about his condition and the investigations and treatment he is proposing. Throughout the course of the illness, he will take account of the patient’s personality in his explanations and ensure that they are understood.
However, when a person asks to be kept in the dark about a diagnosis or prognosis, his or her wishes must be respected, unless third parties are exposed to a risk of contamination.
A fatal prognosis should only be revealed with caution, but close relatives must be informed, except in exceptional circumstances or if the patient has previously forbidden this disclosure or designated the third parties to whom it should be made”.
The parallel to this obligation is the patient’s right to information, as set out in article L1111-2 of the French Public Health Code:
” I. – Everyone has the right to be informed about their state of health. This information concerns the various investigations, treatments or preventive actions that are proposed, their usefulness, their possible urgency, their consequences, the frequent or serious risks normally foreseeable that they entail as well as the other possible solutions and the foreseeable consequences in the event of refusal. He/she is also informed of the possibility of receiving, when his/her state of health so permits, in particular when he/she is receiving palliative care within the meaning of article L. 1110-10, care on an outpatient basis or at home. Account is taken of the person’s wish to receive one of these forms of care. When new risks are identified after the investigations, treatments or preventive measures have been carried out, the person concerned must be informed, unless it is impossible to trace him or her.
All healthcare professionals are responsible for providing this information within the scope of their competence and in compliance with the professional rules applicable to them. Only in cases of urgency or where it is impossible to provide information may they be exempted.
This information is given during a personal interview.
A person’s wish to be kept in ignorance of a diagnosis or prognosis must be respected, except when third parties are exposed to a risk of transmission.
II. – The rights of minors referred to in this article are exercised by the persons with parental authority or by the guardian, who receive the information provided for in this article, subject to articles L. 1111-5 and L. 1111-5-1. Minors have the right to receive information themselves and to participate in decision-making concerning them, in a manner appropriate to their degree of maturity.
III. – The information provided for in this article is given to adults protected under the provisions of Chapter II of Title XI of Book I of the Civil Code in a manner suited to their ability to understand.
This information is also given to the person in charge of a legal protection measure with representation relating to the person. It may be given to the person responsible for a legal protection measure with personal assistance if the protected adult expressly consents to this.
IV. – Recommendations of good practice on the provision of information are drawn up by the Haute Autorité de Santé and approved by order of the Minister of Health.
In the event of a dispute, it is the responsibility of the healthcare professional or establishment to provide proof that the information was given to the person concerned in accordance with the conditions laid down in the present article. This proof may be provided by any means.
The health establishment shall collect from the hospitalised patient the details of the health professionals from whom he wishes the information necessary for his care to be collected during his stay and the information necessary for the continuity of his care to be transmitted after his discharge.
This means that doctors cannot conceal their diagnosis from patients. They must explain the treatments envisaged, as well as any possible dangers.
If you have been the victim of medical malpractice, contact our firm to assert your rights.
