Date: Fri, 11 May 2007 10:29

From: Hector MacQueen

Subject: Good news/bad news

Sorry to come into this interesting discussion late. I just wanted to throw in the information that in Scotland we had an unsuccessful claim by a patient against an NHS trust on the basis of unilateral promise last year. The argument was that the doctor had so spoken and acted as to impliedly guarantee the patient a successful outcome to her pending operation. There being no doctrine of consideration in Scots law, such a promise if made would be enforceable. The judge held that there was no promise - he was unwilling to infer the necessary intention to be bound or indeed to make such a promise in the NHS context. A further point not adverted to in the judgement is that in Scots law promises must be in writing unless made in the course of business. Presumably it was tacitly assumed that the doctor was acting in the course of business. The case is called Dow v Tayside University Hospital NHS Trust 2006 SLT (Sh Ct) 141 and it can be found in the sheriff courts section of the Scottish Courts website judgements database.

Hector

--
Hector L MacQueen
Professor of Private Law
Director, AHRC Research Centre Intellectual Property and Technology Law
Edinburgh Law School
University of Edinburgh
Edinburgh EH8 9YL
UK
Tel: (0)131-650-2060; Fax: (0)131-662-6317

Quoting Robert Stevens:

There is I think a large problem with Robert's contractual "solution", viz., that any contract will almost certainly have been made before the patient can be asked to sign or be given the disclaimer so that the disclaimer will come too late to be effective.

There is never a contract between the patient and the NHS at any stage. There is no consideration provided by the patient. This is why the hospital can change the scope of its undertaking without a contractual variation.

In any case, I think that any disclaimer, particularly having regard to what I have just said, would have to be so worded that no one would be prepared to sign it.

Where the claim is based upon an assumption of responsibility by the defendant (ie under Hedley Byrne) there is no need to show any contract for the disclaimer to be effective: as is demonstrated by the result in Hedley Byrne itself.

If the disclaimer is not signed (and, in many cases, even if it is), I would not put much money on the chance that it would be enforceable by the hospital or doctor, given the circumstances in which the patient is told or shown its terms.

If the claim was based upon some other sort of right, if the doctor had injured the patient for example, then, at common law it would be necessary to show an agreement for the disclaimer to work (although the English UCTA would now strike it down). This is unnecessary under Hedley Byrne.

You would need, at the very least, to require the patient to have had independent legal advice.

I don't think this is required either.

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