(a) Summa divisio obligationum

‘Medical law’ (alternatively styled as ‘healthcare law’, or variations thereupon) emerged as a ‘distinct, autonomous subject of legal study’ only within the last century,Footnote ³¹ however, as a ‘contextual category’ of jurisprudence,Footnote ³² ‘the body of law on which it draws is by no means new’.Footnote ³³ The boundaries of ‘medical law’ may be difficult to delineate (such, as Professor Birks notes, is in the nature of contextual categories of law),Footnote ³⁴ but since the field of study is principally concerned with ‘the relationship between health care professionals (particularly doctors and to a lesser extent hospitals or other institutions) and patients’,Footnote ³⁵ the discipline necessarily draws upon ‘primary categories’ of private law. Though, then, reference is occasionally made to ‘UK medical law’ by commentators, such references are almost invariably conceptually inaccurate and inadequate.Footnote ³⁶ Parity of practical outcome, in particular cases or instances, in no way implies parity of law or juridical reasoning: hence, though Montgomery has been described as a ‘UK medical law case’Footnote ³⁷ (and was decided by the UKSC), the consequences of this decision may well differ depending on whether one stands north or south of the Tweed.

Scots private law, as Whitty notes, was neither influenced nor hampered in its development by the English forms of action.Footnote ³⁸ Similarly, marking yet another distinction from the law of England,Footnote ³⁹ Scotland does not have a discrete law of ‘torts’ or ‘delicts’,Footnote ⁴⁰ but rather a broad and unitary law of obligations of which the law of delict forms but a part.Footnote ⁴¹ As such, inter alia, Scots private law does not recognise a nominate delict or ‘torticle’ of negligence per se,Footnote ⁴² but rather has developed in such a manner so as to recognise the possibility of delictual liability arising where loss has been caused through the negligent conduct of another.Footnote ⁴³ Drawing this distinction is no matter of mere hair-splitting pedantry. In deducing the law from principles, rather than founding it on actions, ‘Scots law… has [as a mixed jurisdiction]Footnote ⁴⁴ conformed more closely to the Civilian norm, rather than to the Common law’.Footnote ⁴⁵ This, as Birks observed, marks ‘the true difference [between Scots and English law, which] consist[s] in the [Scots] commitment to the institutional scheme or, in other words, to a more systematic approach’.Footnote ⁴⁶

Though Scots law has historically been influenced by the institutional schema of Justinian,Footnote ⁴⁷ the quadripartite division of obligations known to the Romans (obligations arising ex contractu, quasi ex contractu, ex maleficio and quasi ex maleficio)Footnote ⁴⁸ was rejected by Stair,Footnote ⁴⁹ and so by subsequent Scots jurisprudence.Footnote ⁵⁰ Obligations, in Scotland, may be imposed ex lege [by law] (and so be styled ‘involuntary obligations’Footnote ⁵¹ or, in Stair's parlance, ‘obediential obligations’)Footnote ⁵² or they may arise as a result of one's own private, voluntary undertaking (and so be styled ‘voluntary’ [ie ex voluntate] obligationsFootnote ⁵³ – termed ‘conventional obligations’ by Stair).Footnote ⁵⁴ Within the law of obligations, liability arising ex delicto has historically been contrasted with liability arising ex contractu,Footnote ⁵⁵ with the latter being conceived as the ‘prime example of a “conventional” obligation’.Footnote ⁵⁶ While this divide between contract and delict has been termed summa divisio obligationum [the principal division of obligations],Footnote ⁵⁷ Scots law also recognises unilateral promises as species of ex voluntate obligations,Footnote ⁵⁸ and considers, inter alia, liability arising from an unjustified enrichment, or claims arising on the basis of negotiorum gestio, as species of involuntary obligations.Footnote ⁵⁹

The Anglo-American common law tradition knows of no equivalent to negotiorum gestio – indeed, lawyers schooled within that tradition would likely regard a gestor as an ‘officious intermeddler’ if not ‘an outright tortfeasor’.Footnote ⁶⁰ Scots law, though, corresponds here with the tradition of Continental European nations such as FranceFootnote ⁶¹ and GermanyFootnote ⁶² in its impulse to ‘praise and reward’ one who takes steps to protect the interests of another, even where the intervenor lacks authorisation from that person. Negotiorum gestio was ‘borrowed by [Scots] law from the Roman law’Footnote ⁶³ and ‘adopted practically without change’Footnote ⁶⁴ – hence, the law of Scotland recognises that the actions of a gestor may create a relationship which gives rise to reciprocal rights and duties on the part of the gestor and the person whom they have intervened to aid.Footnote ⁶⁵ As with obligations arising from an unjustified enrichment, with which negotiorum gestio was historically identified,Footnote ⁶⁶ the obligations which arise from this relationship are imposed ex lege.Footnote ⁶⁷ They are not (strictly speaking) voluntarily undertaken by the gestor, nor by the party who benefits from the actions of the gestor.

Within the context of the Civilian tradition, the divide between ‘voluntary’ and ‘involuntary’ obligations was drawn neatly by Zimmermann (who, of course, recognised that ‘the borderline between contract and delict is by no means as clear as might be imagined’).Footnote ⁶⁸ The former is said to pertain to the body of rules concerned with the fulfilment of expectation, while the latter concerns those rules which serve to safeguard the status quo (requiring reparation, repetition or restitution in the event of an upset thereof).Footnote ⁶⁹ Promises, like contracts, are self-evidently prospective in outlook, while all actions for unjustified enrichment are definitionally concerned with repetition of the status quo ante. Negotiorum gestio might be thought of as quasi-contractual,Footnote ⁷⁰ but Scots law does not resort to the fiction of an ‘implied contract’ to explain the operation of this concept. Instances of negotiorum gestio are said to give rise to a claim which ‘has a solid foundation in justice, and in human nature, without necessity of recurring to the strained supposition of a contract’.Footnote ⁷¹ The Latin phrase quasi-ex contractu, thus, cannot be translated literally, or with reference to contracts, within Scotland.Footnote ⁷² As a species of involuntary obligation, the actions arising from negotiorum gestio are properly concerned with the preservation of the status quo and, through the obligation to compensate the gestor, with effecting a return to the status quo ante (insofar as money can achieve this recompense).Footnote ⁷³

(b) Expectations, negotiorum gestio and medical treatment

The provision of medical treatment, in the most general terms, may be viewed as either concerned with achieving the direct fulfilment of a person's positive expectations (ie in visiting my physician, I expect that their treatment should benefit me) or with preserving the status quo (ie I hope that the attending physicians, through their efforts, will be able to keep my presently incapax mother alive). In all cases, at the very least, all patients and their families are entitled to expect that the status quo itself (that is, the patient's current status of health) will not be upset further through the wrongdoing of any healthcare professionalFootnote ⁷⁴ – but this is no different from the position arising from any other human interaction.Footnote ⁷⁵ Any person – physician or otherwise – who is at fault for causing another's loss or ‘personal injury’ is liable to repair that loss or personal injury due to the operation of the law of delict.Footnote ⁷⁶

The appropriate analysis will depend on the particular nature of the treatment which is sought. A prospective – and thus contractual or promissory – analysis of the situation has clear benefits in cases of cosmetic surgery, as in all such cases the status quo is thought undesirable. Doctor and patient agree that a physiological change should be made and the patient expects that this change will occur while they submit to surgery. Conversely, in instances in which an incapax patient is treated there can be – unless otherwise expressed ahead of time, for example, through an advance directiveFootnote ⁷⁷ – no fulfilment of expectation on the part of the patient as there can be no expectation of any kind on the part of the patient at the time of treatment. The operating physician is, here, in the position of a benevolent intervenor seeking restoration of the status quo ante, or the maintenance of the status quo.

This latter scenario describes, on the face of it, a quintessential instance of negotiorum gestio: the physician has usefully, but without authorisation from the incapax, acted for the good of the incapax patient.Footnote ⁷⁸ While ‘almost any act in the conduct of another's affairs may amount to negotiorum gestio’,Footnote ⁷⁹ and there has been academic commentary which suggests that analysing the physician/incapacitated patient relationship as being one of negotiorum gestio would be fruitful,Footnote ⁸⁰ the law of Scotland has not yet expressly taken this step.Footnote ⁸¹ Such is unfortunate from the perspective of any jurisprudent, since negotiorum gestio could be used to explain the existence and operation of controversial concepts such as the ‘medical exception’ within this jurisdiction.Footnote ⁸² It is also unfortunate from the standpoint of anyone who is opposed to the lingering presence of undue paternalism in medical law and ethics. Drawing on the earlier work of Professor TB Smith, Meyers has suggested that the law pertaining to negotiorum gestio could be developed so as to justify a move away from the traditional (paternalistic) ‘best interests’ standard in medical decision-making,Footnote ⁸³ insofar as the care of incapax adults (and certain children)Footnote ⁸⁴ are concerned.Footnote ⁸⁵ In employing negotiorum gestio in preference to the ‘best interests test’, ‘the fundamental enquiry will become “do we know or can we find out what the patient would want done under the circumstances at hand?” Not, “What do we think is ‘best’ for the patient?”’Footnote ⁸⁶

The former question would appear to be more in keeping with the spirit of the judgment in Montgomery than the latter. The decision in that case enjoins physicians to recognise the humanity of those whom they treat: as noted in the judgment of Lords Reed and Kerr, patients are and ought to be seen as ‘persons holding rights’, not merely regarded ‘as the passive recipients of the care of the medical profession’.Footnote ⁸⁷ Having regard to an individual's personhood or ‘personality’ necessarily entails having a respect for that person's personality interests, whether the person is capax or incapax at the relevant time. ‘Autonomy’, of course, ‘seems to be a personality [as opposed to proprietary] right’Footnote ⁸⁸ and is recognised as a core interest relevant to medical decision-making in common, Civilian and Mixed jurisdictions alike.Footnote ⁸⁹ Negotiorum gestio, in this context, provides a ready-made framework onto which a medico-legal regime which prioritises respect for personality interests, such as ‘autonomy’, might be superimposed. The law can – and indeed, in systems which recognise negotiorum gestio, does – presume that the average citizen would willingly accept benevolent intervention were they in a position to do so (ie were they not absent or incapax), but where there is evidence to suggest that the citizen in question would actively reject the gestor's intervention (however objectively beneficial) the law regards the unwarranted intervention as a wrong.Footnote ⁹⁰

This corresponds with the ‘patient-empowering’ (or patient-participating) policy objectives of modern medical (and medico-legal) practice.Footnote ⁹¹ The net effect of the decision in Montgomery is to place ‘the wants, needs and reasonably held expectations of patients… at the apex of judicial reasoning’.Footnote ⁹² Negotiorum gestio excuses reasonable interference with the interests of the incapax where there is a reasonable presumption that the incapax would have given the gestor a mandate for their interference.Footnote ⁹³ Where there is evidence to suggest that the incapax would not have assented to any such interference, however, the intervenor is not properly speaking a gestor but is rather a delinquent – that is, the false gestor has committed a delictual wrong (whether through a negligent, reckless or malicious design is here irrelevant, as the significance of the classification of the conduct will depend on the nature of the interest interfered with). Extending the analysis of negotiorum gestio to the doctor/patient relationship would mean that a medical practitioner who acts in what they reasonably believe to be the interests of an incapax patient will be a gestor and so be deemed to be acting lawfully and within the confines of a relationship of negotiorum gestio.Footnote ⁹⁴ One who hubristically acts against, or without regard to the known or presumed wishes of the patient, will, however, commit the delict of assault.Footnote ⁹⁵

Adopting the negotiorum gestio analysis outlined above would not materially change the requirements for a successful suit against a negligent physician. A gestor who fails to achieve a successful result through fault in their intervention may be liable, in delict, to the absent or incapax person whom they have sought to aid.Footnote ⁹⁶ The question of the liability of a gestor was, in Roman law, controversial,Footnote ⁹⁷ although a gestor was certainly liable for actions which displayed dolus (maliciousness) or culpa lata (the utmost degree of fault).Footnote ⁹⁸ In Scots law, a gestor has long been recognised as obliged to ‘bestow a degree of care and diligence [which] alter[s] with circumstance’.Footnote ⁹⁹ Traditionally, as in the law of delict, there were said to be three degrees of fault for which one might be liable: culpa lata, culpa levis (ordinary, or slight fault) and culpa levissima (the slightest degree of fault).Footnote ¹⁰⁰ The standard of care expected of a gestor varied depending on the circumstances of the case, with a gestor acting in circumstances of necessity liable only for demonstrating dolus or culpa lata,Footnote ¹⁰¹ with one acting as gestor in ordinary circumstances held liable for ordinary negligence or fault (culpa levis).Footnote ¹⁰² A false gestor – that is, a genuinely officious intermeddler who involved themselves in another's affairs without cause, or contrary to that person's expressed wishesFootnote ¹⁰³ – was held liable for the officious intermeddling alone,Footnote ¹⁰⁴ rationalised in this context as liability for culpa levissima.Footnote ¹⁰⁵

By the latter half of the nineteenth century, the tripartite distinction between degrees of fault in delict became a bipartite distinction. The Inner House rejected the distinction between culpa levis and levissima in MacKintosh v MacKintosh Footnote ¹⁰⁶ and held that a party who engages in a risky venture ‘should exercise the care and diligence which a prudent man would observe in his own affairs, and which a prudent and conscientious man will observe as to the interests of his neighbours’.Footnote ¹⁰⁷ By the turn of the twentieth century, the bipartite distinction was abandoned,Footnote ¹⁰⁸ having fallen out of fashion.Footnote ¹⁰⁹ Thus, in Hunter v Hanley,Footnote ¹¹⁰ Lord Russell found that ‘in civil claims based on negligence, and including claims against professional men, there is… only one standard, viz., the absence of reasonable care in the circumstances or ordinary culpa’.Footnote ¹¹¹

Just as the distinction between degrees of fault was abrogated in the law of delict, so too was it abandoned in the context of negotiorum gestio. Foreshadowing his celebrated decision in the (Scottish) case of Donoghue v Stevenson Footnote ¹¹² by a year or so, in 1931 Lord Atkin opined that while ‘what measure of care is required from a negotiorum gestor in respect of goods over which he assumes control has been the subject of much discussion… the more scientific treatment of the problem is not to predicate different degrees of negligence [ie culpa, or “fault” in this context],Footnote ¹¹³ but to concentrate on the duty, breach of which constitutes negligence. The duty is to take reasonable care in the circumstances, and will vary in each case, but, having been discharged, negatives any negligence, lata, levis, or levissima’.Footnote ¹¹⁴ In effect, then, the existence of a negotiorum gestio relationship negates, in cases of purportedly negligent conduct, any question as to whether or not a duty of care is or ought to be owed; the question becomes simply whether or not the gestor exercised the requisite standard of care expected in the circumstances.

Extending the concept of negotiorum gestio to cover matters of medical practice would not, as the above analysis indicates, change terribly much in respect of ordinary cases of negligent malpractice. A physician who fails to exercise the expected level of care in treating their patient will be adjudged by the same delictual standard whether the relationship between doctor and incapax patient is conceived of as one of negotiorum gestio or not. A physician who subjects an incapax patient to an untested or novel form of treatment without having first obtained the knowledge or consent of that patient would still be liable in a claim for delictual assault.Footnote ¹¹⁵ Adopting the negotiorum gestio analysis outlined above would, however, allow for a more ready and rational departure from the standard of ‘best interests’ in medical decision-making, in a manner consistent with the decision in the case of Montgomery. It would also bring a level of coherence to Scottish medical jurisprudence which is presently lacking. This, it is submitted, would be a boon to practitioners and jurisprudents alike; there is, after all, ‘nothing so practical as a good theory’.Footnote ¹¹⁶

(c) ‘Injury’ (‘personal’ and otherwise), assythment and medical treatment

The influence of Roman law on the Scottish reception of negotiorum gestio is obvious, but Scotland's connection to the Continental European Civilian tradition was of the utmost importance in the development of the wider Scots law of obligations also.Footnote ¹¹⁷ Historically, the maxim spondet peritam artis et imperitia culpae adnumeratur [one promises skill in one's art and the lack of such skill is a fault]Footnote ¹¹⁸ was of importance in the Scots law of ex lege and ex voluntate obligations alike,Footnote ¹¹⁹ since the law of reparation of damnum (damage) in delict is predicated on the occurrence of the delinquent's culpa [fault]Footnote ¹²⁰ and the brocard was (to adopt anachronistic English parlance) implied into all contracts of the hire of services.Footnote ¹²¹ However, within Roman law itself, the art of medicine was treated amongst the artes liberales and so – unless the physician was a slave or libertini let out to perform their art under a contract of lease or hireFootnote ¹²² – physicians were not, socially, regarded as artisans selling or contracting out their labour.Footnote ¹²³ Work arising as from obligation to another, rather than altruism, was seen in Rome as a sordid activity,Footnote ¹²⁴ fit only for slaves.Footnote ¹²⁵ For the Romans, then, the basis of liability for medical malpractice generally arose within the context of the law of delicts, rather than of contracts.Footnote ¹²⁶

Delictual actions for damage done to the body (ie ‘personal injury’) through culpable, but unintentional, wrongdoing were initially barred in Roman-Scots law,Footnote ¹²⁷ as throughout the law in the Continental Europe ius commune,Footnote ¹²⁸ since the actio de damno dato (action for damage done) which became common currency throughout the courts of ius commune legal systems, was said to be based on the lex Aquilia.Footnote ¹²⁹ The Roman lex Aquilia was a statute allowing for the recovery of property damage caused by wrongful conduct (damnum injuria datum).Footnote ¹³⁰ Since it was held, in Roman law as in the later ius commune, that dominus membrorum suorum nemo videtur [no one is to be regarded as the owner of their own limbs],Footnote ¹³¹ it followed that a freeman (or woman sui iuris)Footnote ¹³² could not sue in their own name for ‘personal injury’.Footnote ¹³³ One could not claim ‘damages’ for harm effected to one's body, since one's body was not an object in one's patrimony (ie one's own body is not, in life, one's ‘property’ in law).Footnote ¹³⁴ To obtain redress for wounds inflicted upon the body, one would have to succeed in an actio iniuriarum, which was functionally confined to occasions of calculated wrongdoing.Footnote ¹³⁵ ‘Hence there was no fertile soil here for the growth of medical malpractice; an action for deliberate assault would seldom be appropriate’.Footnote ¹³⁶

Since the body of a free person is (at least so long as it is ‘inhabited’ by some ‘spirit or soul’Footnote ¹³⁷ – in other words, for as long as the free person is alive) not a ‘thing’, in law,Footnote ¹³⁸ it was held that it could not be ‘damaged’ in any monetary sense.Footnote ¹³⁹ ‘The Romans seem to have treated seriously their maxim that the body of a free person is beyond price’;Footnote ¹⁴⁰ under the influence of this Roman rule and Christian theology alike, mediaeval and early modern lawyers did likewise.Footnote ¹⁴¹ Thus, ‘while [following negligent injury to their body, a free person] could claim damages for medical expenses and loss of earnings,Footnote ¹⁴² [they] could not claim for other non-patrimonial types of harm because of the principle that a freeman's body is of inestimable value’.Footnote ¹⁴³ As in Rome, wrongs to the body were reparable only where there was ‘injury’ in the sense of iniuria (ie in the sense of the nominate delict, as opposed to its sense in the context of damnum iniuria datum),Footnote ¹⁴⁴ and not merely where the victim suffered ‘personal injury’ in the modern sense of that term.Footnote ¹⁴⁵

Iniuria was an etymologically complex Latin term, but in the context of the actio iniuriarum it specifically denoted contumelious (hubristic)Footnote ¹⁴⁶ conduct which affronted the existimatio (a collective term for all ‘personality interests’) of a persona.Footnote ¹⁴⁷ Used in this sense, iniuria could be inflicted by words (and so be termed iniuria verbalis or ‘verbal injury’) or by deeds (and so be termed iniuria realis or ‘real injury’).Footnote ¹⁴⁸ Affronts caused by iniuria did not give rise to any claim for ‘damages’,Footnote ¹⁴⁹ since properly speaking ‘damages’ serve only to repair instances of patrimonial loss (damnum).Footnote ¹⁵⁰ Rather, reflecting the fact that the actio iniuriarum served as a means to repair non-patrimonial hurt, the remedies for ‘injury’ were either non-pecuniary or punitive.Footnote ¹⁵¹ The key punitive pecuniary remedy for affront, solatium,Footnote ¹⁵² came however to be ‘effortlessly reinterpreted as being purely compensatory when the time came for legal writers to fit the actio iniuriarum into the modern theory of Scots delict law’.Footnote ¹⁵³

That solatium and ‘damages’ are conceptually separate has been consistently overlooked in Scottish legal theory and practice.Footnote ¹⁵⁴ Indeed, ironically, while bemoaning the neglect and maltreatment of the actio iniuriarum within Scottish jurisprudence, Professor TB Smith himself described solatium as a form of ‘damages for non-patrimonial loss’.Footnote ¹⁵⁵ This misunderstands the simple fact that an award of damages exists to repair damnum (loss) while a compensatory award of solatium is granted in recognition that iniuria has been inflicted, even if that iniuria occurs ultimately sine damno (ie even if the contumelious conduct does not cause the victim ‘loss’). This is not to say that a pursuer can raise and win an actio iniuriarum without demonstrating that they suffered harm at the hands of the defender;Footnote ¹⁵⁶ it is merely the case that the threshold for ‘harm’ is lower in cases where solatium is sought in an actio iniuriarum than in cases where damages are sought for damnum iniuria datum.Footnote ¹⁵⁷ Mere upset or annoyance does not constitute ‘loss’, but it most certainly can evidence an ‘affront’ in circumstances in which the defender has ostensibly committed iniuria.Footnote ¹⁵⁸

The neat divide between the Roman actions, and the associated remedies, for patrimonial loss and non-patrimonial affront was, from the outset of the Scottish reception of Roman law, blurred due to the extant customary Scots law relating to harms effected to the body.Footnote ¹⁵⁹ Prior to the reception of, and thereafter alongside the received, Roman law, Scotland recognised its own native penal action and compensatory remedy of assythment.Footnote ¹⁶⁰ By the nineteenth century, the word ‘assythment’ had – in addition to its dual meaning denoting both action and remedy – a further dual meaning, denoting both (‘in its “proper” sense’)Footnote ¹⁶¹ ‘the composition payable on the commission of a crime’, but also (‘in the more general sense’)Footnote ¹⁶² ‘the right to reparation for personal injury [ie for bodily wounds or death inflicted on a person through the actions of another] generally, even where there was no criminal prosecution’.Footnote ¹⁶³ The monetary remedy of assythment served the dual purpose of repairing instances of ‘loss’, in the sense of damnum, but also of affording emotional redress to the wounded, or the family of the deceased. Per Balfour, assythment was payable to ‘to the kin, bairnis, and freindis [of a deceased person], in contentatioun of their damage, and for pacifying of thair rancor’;Footnote ¹⁶⁴ as Professor Black notes ‘however, only one lump sum was awarded, and there was no formal division of the amount into so much for patrimonial loss, and so much for moral damages [which might be here termed, anachronistically, solatium]’.Footnote ¹⁶⁵

Although assythment – as an action and remedy – was said to be available only where the conduct of the defender was ‘criminal’, it must be borne in mind that a great deal more conduct fit under this heading in early modern Scots law than would fit within the definition of ‘criminal’ conduct today.Footnote ¹⁶⁶ There was no meaningful separation of crime and delict in Scotland until the nineteenth century.Footnote ¹⁶⁷ Furthermore, while ‘it would have been perfectly logical, and perhaps desirable, for eighteenth century Scots law to have required that a defender actually be convicted by the appropriate Scottish criminal court before finding assythment due… it was not the law’.Footnote ¹⁶⁸ The action for and remedy of assythment was consequently available throughout the eighteenth century for all cases of ‘mutilation and demembration’Footnote ¹⁶⁹ which were in the Continental European legal tradition species of iniuria realis, and for cases of negligent or culpable homicide as well as murder alike.Footnote ¹⁷⁰ Thus, in spite of the position within Roman jurisprudence, ‘the proposition that damages [as well as what would now be called solatium] were available in cases of bodily injury in the Court of Justiciary was trite. It was observable in “daily practice”’.Footnote ¹⁷¹

Notwithstanding the evident utility of the action for assythment, the action began a process of terminal decline from the early eighteenth century onwards. This decline can be linked to the corresponding rise of the modern Scots law of actionable negligence predicated on culpa, which is widely regarded to have its genesis in the (unreported)Footnote ¹⁷² case of Gardner v Ferguson in 1795.Footnote ¹⁷³ Medical malpractice lawsuits – alleging infringement of the body, rather than a failure of skill in reporting medical information or diagnosisFootnote ¹⁷⁴ – seemingly did not occur in Scotland until the twentieth century,Footnote ¹⁷⁵ at which time the action for and remedy of assythment was neither well-understood nor commonly utilised by Scottish lawyers. Scots law had, by that time, been pulled in two distinct directions by its connections to the two great legal traditions – the Continental European Civilian tradition and that of the English common law – and neither of these sources of legal culture possessed a grammar by which assythment could be readily rationalised. English law wholly and explicitly rejected the concept of assythment,Footnote ¹⁷⁶ while the idea of a single action and remedy to afford reparation for patrimonial ‘loss’ and non-patrimonial ‘injury’ simultaneously was distinctly un-Roman. That there was confusion in the provenance of Scottish claims for death or ‘personal injury’ is consequently unsurprising.Footnote ¹⁷⁷

Ultimately, assythment – as a remedy and thus also as an action – was abolished by section 8 of the Damages (Scotland) Act 1976.Footnote ¹⁷⁸ This statutory intervention came after the House of Lords, in the 1972 case of McKendrick v Sinclair,Footnote ¹⁷⁹ held that Scottish common law actions and doctrines cannot fall into desuetude.Footnote ¹⁸⁰ Until the legislature intervened at this juncture, it remained (theoretically) possible for a litigant to succeed in a claim for this remedy.Footnote ¹⁸¹ Still, it was consistently passed over by lawyers and litigants in favour of the general Civilian reparative action, based on the lex Aquilia, which was extended beyond its original confines as a proprietary remedy to afford reparation in cases of ‘personal injury’. That solatium – along with damages – became available in such actions ‘seems to have been grafted from the earlier redress of assythment and not from the actio iniuriarum of Roman law’.Footnote ¹⁸²

Although the ‘proper’ actio iniuriarum was received into Scots law,Footnote ¹⁸³ the action has been sorely neglected in Scots jurisprudence for over two centuries.Footnote ¹⁸⁴ Still, the potential for a revival remains presentFootnote ¹⁸⁵ and – indeed – development of the action would be of practical as well as analytical benefit to lawyers and litigants in Scotland.Footnote ¹⁸⁶ This is particularly so in light of the decision in Montgomery; a physician who, contrary to the decision in that case, subjects a patient to a form of treatment to which the patient has not expressly consented unquestionably interferes with that patient's autonomy. As indicated in the 2013 case of Holdich v Lothian Health Board, it can plausibly be argued that ‘autonomy’ is not an interest which might be damnified,Footnote ¹⁸⁷ although in that case a claim for ‘loss of autonomy’ was recognised as ‘not per se irrelevant [and] as capable of forming part of a claim for solatium as it is of supporting a standalone claim’.Footnote ¹⁸⁸ Logically, since ‘“autonomy” in this context seems to be a personality [as opposed to proprietary] right’,Footnote ¹⁸⁹ and since solatium is said to be the appropriate remedy for interference with this non-patrimonial ‘personality right’, the basis of the right of action would be the actio iniuriarum, which serves in Scotland – as it did in Rome – to repair instances of affront to personality, rather than loss of [part of] one's patrimony.

To succeed in such an action, a pursuer need only demonstrate that the defender behaved contumeliously towards them in infringing a recognised ‘personality interest’.Footnote ¹⁹⁰ Subjective affront to a recognised interest is not sufficient, however; it is for the court, on examination of the facts, to make a determination of whether or not the conduct complained of is (properly speaking) ‘injurious’.Footnote ¹⁹¹ This determination is made according to the ‘admittedly nebulous’ standard of boni mores,Footnote ¹⁹² which in contemporary parlance is comparable to the familiar standard of ‘public policy’.Footnote ¹⁹³ In other words, conduct is ‘injurious’ if it causes sufficient subjective ‘affront’ to move a person to initiate a court action and if it is also thought by the court to have objectively overstepped the bounds of acceptable conduct, which is measured according to the prevailing norms of society.Footnote ¹⁹⁴

Since the decision in Montgomery, what is thought – in the medico-legal sphere – to constitute ‘acceptable conduct’ according to modern mores has been modified considerably. While at one time a considerable degree of latitude was afforded to physicians in carrying out their practice,Footnote ¹⁹⁵ in a legal order in which patients are properly regarded as ‘persons holding rights [and] exercising choices’,Footnote ¹⁹⁶ medical practitioners are constrained in the exercise of their profession. To achieve the standard of care expected of a competent physician, said physician must take ‘reasonable care to ensure that the patient [is] aware of any material risks involved in any recommended treatment, and any reasonable alternative or variant treatments’.Footnote ¹⁹⁷ This alone, however, is insufficient to properly afford protection to the recognised ‘personality interests’ of patients. Were a physician to proceed with an operation without properly obtaining consent from their patient, or without informing them of alternative treatment options, it would, however, be difficult to frame an Aquilian action for damages (ie an action predicated on the physician's culpa) in the event that the physician's chosen treatment proved successful. The physician's actions would, in this case, be iniuria (wrongful), but iniuria sine damno (wrongful conduct without ‘loss’) does not give rise to any right of reparation in an action of this kind.

Thus, again, to comply with the spirit, as well as the letter, of the decision in Montgomery there must, in law, be some means of protecting the personality interests of patients which does not concern itself with questions of quantification or ‘loss’. As with negotiorum gestio in respect of incapax patients, the development of the actio iniuriarum would afford Scots lawyers with a ready-made framework – already present within the Scottish legal system – from which a robust means of protecting ‘personality interests’ might be developed. Development of this Scottish legal resource would allow patients who are subjected to medical treatment without their consent, or subjected to (even successful) medical treatment without first having been made aware of the full suite of treatment options available to them, an action to obtain solatium for the infringement of their personal autonomy. This right of action would be grounded in judicial recognition of the fact that, in the twenty-first century, any physician who high-handedly elects to proceed with their preferred form of treatment without ‘respect[ing their] patients’ right to reach decisions with [them] about their treatment and care’ acts hubristically.

(d) Consent, contracts and medical treatment

While it is plain that ‘the full potential of negotiorum gestio [or, indeed, actio iniuriarum]Footnote ¹⁹⁸ in Scots law has not, or has not yet, been realised’,Footnote ¹⁹⁹ and although Roman law dealt with matters of medical malpractice almost wholly through the lens of its law of delicts, Scots law has historically recognised that a contract exists where doctor and patient reach consensus in respect of the treatment which is to be afforded.Footnote ²⁰⁰ Indeed, it was not until the 1914 case of Edgar v Lamont Footnote ²⁰¹ that it was found (in peculiar circumstances) that medical practitioners owe, in delict, a duty of care to their patients.Footnote ²⁰² This delictual duty, logically in line with the principles of Scots law, is owed in addition to any extant contractual obligations.Footnote ²⁰³ The case of Edgar, however, was not merely decided at a time in which patients were not properly recognised as ‘persons holding rights’, but indeed at a time in which women (particularly married women)Footnote ²⁰⁴ were not fully or properly recognised as ‘persons’ at all.Footnote ²⁰⁵

In Edgar, the pursuer's husband contracted with a physician (Dr Lamont) to secure medical treatment for her. This was par for the course in the early twentieth century; ‘medical attendance was one of the necessaries of family life, for which the husband as head of the family was liable’.Footnote ²⁰⁶ Though Dr Lamont had contracted with Mrs Edgar's husband to treat her injured finger, Lamont was (it appears grossly) negligent in his provision of treatment, with the net effect that Mrs Edgar's maltreated finger caused her ‘great pain’ and ultimately had to be amputated.Footnote ²⁰⁷ Although Scots law at this time recognised at common law the concept of a jus quaesitum tertio (third party ‘right’ arising from contract),Footnote ²⁰⁸ for reasons which are not clear from the case report,Footnote ²⁰⁹ Mrs Edgar – rather than her husband – elected to sue Dr Lamont and predicated her claim on the law of delict rather than the law of contract.Footnote ²¹⁰

Compounding the issue, the defender sought to argue that in a lawsuit predicated upon a contract ‘the only person with a title to sue is the person with whom the contract was made’.Footnote ²¹¹ This proposition was quite consistent with the relevant English law of the day,Footnote ²¹² but was not at all in keeping with the then-prevailing position in Scots law.Footnote ²¹³ Nevertheless, founding on English legal principles and authorities, the Court of Session ultimately held that ‘a patient is entitled to a direct action ex delicto against a doctor for professional incompetence or negligence’ since ‘to hold otherwise would lead to an entire denial of any remedy to a person who did not happen to be the person who had contracted with the doctor’.Footnote ²¹⁴ The veracity of this finding might well be doubted, particularly since ‘Scots law historically recognised that an individual may sue the parties to a contract, notwithstanding the fact that said individual was never party to that contract, if the individual in question explicitly or implicitly benefits from the grant of a jus quaesitum tertio’,Footnote ²¹⁵ but this notwithstanding, Scottish legal practitioners came to recognise delictual actions as the primary means of securing reparation in cases of medical malpractice.Footnote ²¹⁶

With the advent of the National Health Service (NHS)Footnote ²¹⁷ and National Health Service (Scotland) (NHS (S))Footnote ²¹⁸ following in the wake of World War II, the idea that a physician might directly contract with their patient had already largely died away. Indeed, when the case of Hunter v Hanley Footnote ²¹⁹ called before the Court of Session in 1955 the notion that the case might proceed upon the grounds of a contract was not at all explored, nor was the significance (or otherwise) of the then-recent National Health Service (Scotland) Act 1947 on the liability of a physician, or the Secretary of State, touched upon either. The pursuer predicated her claim in Hunter upon the defender's alleged culpa (fault)Footnote ²²⁰ and did not succeed in her claim as it was found by the court that the defender, Dr Hanley, had in his actions achieved the requisite standard of care expected in the circumstances. Since this time, ‘with the assimilation of the law on the standard of care’, it has been said that ‘there is very little difference between English law and Scots law on medical negligence’.Footnote ²²¹

There remain, however, notable and significant differences between the English law of contracts and the Scots law of ex voluntate obligations. In England and Wales, services under the NHS are (typically, as yet) provided ‘free at the point of use’ and so no contract is concluded between service-provider and service-user.Footnote ²²² While there might exist agreement between service-provider and service-user, or while the service-provider may undertake to make some promise to the service-user, bare promises are not enforceable in English law and to be enforceable as a contract an agreement must typically be underpinned by consideration,Footnote ²²³ which is necessarily lacking in cases involving NHS practitioners and their patients.Footnote ²²⁴ In Scotland, by contrast, since the concept of a ‘gratuitous’ contract – and indeed gratuitous unilateral obligations – has long been recognised, the lack of exchange or underpinning ‘consideration’ between NHS physician and patient is no bar to the recognition of a contract between them.

As noted in the introduction to the present paper, this was recognised in the 2006 case of Dow v Tayside University Hospitals NHS Trust, although ultimately it was found that no contract or enforceable promise was formed within the facts of that case. Indeed, Sheriff Fletcher considered that a contract (or unilateral promise) would be constituted in respect of an NHS physician/patient relationship only if ‘it was clear that the doctor concerned was exceptionally entering into a contract and was not relying on the statutory relationship [predicated the National Health Service (Scotland) Act 1978] alone’.Footnote ²²⁵ The circumstances in which this would occur, Sheriff Fletcher admitted, were unlikely and difficult to conceive of;Footnote ²²⁶ they would also be such as to place an ‘additional burden’, or additional duties, on the healthcare provider.Footnote ²²⁷ Nonetheless, Dow is notable for correctly recognising that unlike in England and Wales, there is no bar, in theory, to the recognition of an ex voluntate obligatory relationship between NHS (S) service-providers and service-users.

In spite of this, it remains the case that ‘the current orthodoxy is that, as a generality, no contractual relationship exists’ in such circumstances.Footnote ²²⁸ This orthodoxy is, however, predicated upon three propositions which are demonstrably false or irrelevant to a claim within the context of Scots law: ‘the first being the absence of a statutory power to contract; the second being that statutory agencies, such as health boards, which are legally obliged to do something are not free to contract to do that thing; and the third principle being that patients and other service users do not (in general) provide consideration for services received’.Footnote ²²⁹ The last of these three propositions clearly runs counter to the basic principles of Scots law, as has been demonstrated throughout this paper, but such did not prevent discussion of the point in the Outer House of the Court of Session, in the case of Holdich v Lothian Health Board.Footnote ²³⁰ Nonetheless, the position advanced by the pursuer in Holdich was unquestionably sound viz Scots law: ‘the absence of any need for contractual consideration in Scots law enlarges the opportunities for statutory providers to contract’.Footnote ²³¹

This is certainly the case, just as it is also the case that, as Lord Stewart recognised, there was no principled reason that a statutory health board could not enter into contracts in the absence of express statutory authority.Footnote ²³² As the pursuer argued in Holdich, ‘health authorities do make contracts daily’ and, in answer to the second alleged ‘principle’ barring recognition of a contractual relationship between NHS (S) physician and patient, though a health authority is statutorily obliged to provide ‘treatment’, ‘[a] consent form completed by the pursuer [might] demonstrate that the pursuer had freedom to make stipulations’ with the net effect that ‘the normal rules of contract apply unless there is conflict with statutory functions’.Footnote ²³³ Although Lord Stewart ultimately concluded that ‘the pursuer's property-contract case… as it has been presented at this stage, faces difficulties’,Footnote ²³⁴ his Lordship expressly recognised that ‘consenting to medical treatment need not be inconsistent with contracting for medical treatment’.Footnote ²³⁵ The difficulties faced by the pursuer were largely concerned with the framing of their argument: ‘as the defenders correctly point out the there is a shortage of detail in the pleadings, at this stage, to support the idea of contractual intention’.Footnote ²³⁶

That Scots law can recognise the relationship between NHS (S) physicians and their patients as predicated on an ex voluntate obligation is thus apparent. That Scots law should recognise this is likewise clear. As Professor McBryde noted in a 2011 address before Compass Chambers,Footnote ²³⁷ there are sound public policy reasons for recognising the existence of contracts between NHS (S) physicians and their patients. ‘If those who pay for medical treatment have more rights than the majority who do not, the law is discriminatory, defective and unfair’.Footnote ²³⁸ McBryde's observation has been placed into sharper focus since the decision in Montgomery, in which it was recognised that patients are seen as ‘consumers exercising choice’.Footnote ²³⁹ If patients are increasingly afforded the opportunity to choose alternative (private-sector) healthcare providers in preference to NHS (S) services, then it is imperative that the basis of liability for private medical malpractice be rationalised on the same basis as liability for medical malpractice which follows from ‘free at the point of use’ provision. This is particularly so when, as in Scotland, there is no legal formal bar to the recognition of gratuitous contracts between doctor and patient.

Affording a patient who has ‘jumped the queue’ additional rights, even if those additional rights amount only in practice to the right to plead alternate claims in their action,Footnote ²⁴⁰ would place NHS (S) patients at a disadvantage relative to those who receive private healthcare. While ‘no doubt it is sometimes difficult to distinguish between liability arising from breach of contract and liability arising from breach of duty’Footnote ²⁴¹ and, indeed, in Scots law, breach of certain types of contract may give rise to a claim for solatium as well as of damages,Footnote ²⁴² it remains the case that there are occasions in which proof of a contract might benefit a pursuer who would otherwise require to predicate their claim on the law of delict alone. It appears, for instance, that if a contract of deposit is breached, and sentimentally important property is lost or damaged as a result of that breach, then the pursuer might claim monetary compensation ascertained with reference to the pretium affectionis [‘price of affection’] associated with the thing.Footnote ²⁴³ There is, it might be thought, less scope for such recovery within the law of delict.

The practical issues faced in the pleadings submitted by Ms Dow and Mr Holdich in their respective cases are – or can be – likewise mitigated following from the decision in Montgomery. While Dow and Holdich each stumbled due to a lack of specification in the terms of the purported ex voluntate obligation, the fact that medical practitioners are now expressly expected to reach agreement, with their patient(s), as to the form of treatment which that patient is to undergo means that there necessarily will be evidence of the terms of the discussion between doctor and patient. If such evidence is absent, then it is a prima facie indication that the physician has committed a delictual wrong, since it is injurious to proceed with treatment in the absence of the patient's consent. Where such evidence is present however, legal practitioners ought to be able to readily interpret the terms of that discussion as obligatory or not,Footnote ²⁴⁴ depending on the particular facts of the particular case. There is, after all, no formal requirement that contractual terms (other than those concerned with real rights in land)Footnote ²⁴⁵ be in writing in order to be given legal effect.Footnote ²⁴⁶ Intention to create legal relations must be inferred from the fact that, objectively speaking, any physician who agrees to respect a patient's choice must surely understand that they will be bound in law to do so.

The above discussion is not to say that a contractual analysis of the NHS (S) physician/patient relationship will be appropriate in all cases. Rather, this paper has simply sought to argue that it is, in Scots law, possible to recognise this relationship as contractual and that in some – indeed, perhaps many – cases, this would be of benefit to lawyers, physicians and patients alike. All of these groups would benefit from a more rationalised Scottish medical jurisprudence which is consistent with the wider norms of Scots private law.Footnote ²⁴⁷ Altogether more practically, however, recalling Zimmermann's observations that the law of ex voluntate obligations is primarily concerned with the fulfilment of expectation,Footnote ²⁴⁸ it is quite clear that it is more appropriate to invoke the law of contract than the law of delict in cases of frustrated expectation. Since 2015, NHS (S) patients have been imbued with a legitimate expectation that any decisions with respect to their medical treatment will be made in partnership with their physician(s) and only then after the patient has expressly consented. Thus, it would be in keeping with common sense, as well as with the fundamental principles of Scottish jurisprudence, to regard any relationship in which consensus in idem through mutual agreement has been achieved as contractual, rather than regarding the breach of an agreement as a delictual matter.