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July 1, 2016

Beware ye of patients bearing gifts

Ed Madden, BL

With the season that’s in it, Ed Madden, BL, looks at how the doctrine of undue influence may impact on doctors receiving gifts from their patients

There is nothing intrinsically wrong with patients bestowing gifts on their medical practitioners. After all, it is everybody’s right to give a gift to another person.
However, in relation to gifts, the Courts recognise certain relationships as giving rise to a presumption of undue influence. These include, but are not limited to: solicitor and client; parent and child; and medical practitioner and patient.

Significant benefit
Where a patient enters into a transaction to his own disadvantage while acting under the advice or influence of his doctor, the presumption of undue influence will arise.  Not all gifts given by a patient to his or her doctor will give rise to the presumption; the doctor must derive a significant benefit from the transaction.
It can be seen that such a benefit would arise, for example, where a substantial gift of property is bestowed. In such a case, the Court will set aside the gift unless it is proved that it was a spontaneous act of the patient acting under circumstances which enabled him to exercise his own free will.

The Court intervenes, not on the ground that any wrongful act has been committed by the doctor, but on grounds of public policy: to prevent abuse of what is regarded as a relationship involving a special degree of trust by the patient in his doctor.

Once the relationship giving rise to a presumption of undue influence is established and it is shown that a substantial benefit has been obtained, the onus lies on the doctor to establish, on the balance of probabilities, that the gift resulted from the free exercise of the patient’s will.

The manner in which the presumption may be rebutted relates to two main issues:
1.    Whether independent advice was received by the patient — usually legal advice;
2.    Whether it can be shown that the patient, in making the gift, acted of his own free will.

With regard to legal advice, a legal advisor who acts for both the patient and the doctor will not be regarded as independent. To satisfy the Court that the patient was acting independently of any influence from the doctor, and with a full appreciation of what he was doing, it must be established that the gift was made after the consequences of making it had been fully explained to the patient by an independent, qualified person.

In addition, the advice must be given with knowledge of all relevant circumstances and must be such as a competent advisor would give if acting solely in the interests of the patient.

The presumption of undue influence does not arise in the case of gifts made by will.  Where a claim is made that a doctor exercised undue influence over a patient in the making of the patient’s will, it is a matter for the person claiming that the making of the will was procured by such influence to prove his case in court.

While the Medical Council in this jurisdiction does not appear to give any specific guidance in this area, in the UK the General Medical Council, in its most recent publication of Good Medical Practice at section 72, provides, inter alia, as follows:
“You must be honest and open in any financial arrangements with patients.  In particular:

c.  you must not encourage patients to give, lend or bequeath money or gifts that will directly or indirectly benefit you.”

Have a very happy Christmas and New Year.

References: See generally Equity and the Law of Trust in Ireland, H. Delany; Equity and the Law of Trust in the Republic of Ireland, R. Keane.