Freedom of contract in the medical legal relationship

Studia Prawa Prywatnego | 01/2019
DOI: 10.32027/SPP.19.1.3
Witold Borysiak

§ 1. Introduction Nowadays, not every legal system and not every relation between a patient and entities performing medical procedures is qualified as a relation of civil law1. However, there is no doubt under Polish law that the nature of the relation between patient and healthcare services provider is that of a civil law obligation2. This is true in a situation when payment for a medical service is made within the public health system, and when a service is provided outside that system3. The qualification of such a relation as one belonging to private law is supported particularly by the formal equality of the parties, which is expressed by the absence of subordination of one party to the other4. This solution is justified by the legislator’s assumption that imposing mandatory medication on private individuals would produce undesirable effects on both the entities performing treatment procedures (especially by restricting the doctor’s freedom to act) and on the patients5. Including the relation between the patient and the entity performing medical procedures into private law relations finds its grounds in the constitution, because it guarantees the individual’s autonomy and protects its dignity and privacy in a wider scope than it would if this relation were included in the framework of public-private relations6. A legal relation that occurs between patient and healthcare services provider is an “ordinary” civil law obligation. It is governed by medical law regulations. The most frequent source of the civil law relation whose essence is defined by medical law regulations are legal acts, and more specifically contracts7. To serve the public interests, public law norms may place some limits on the patient’s autonomy in establishing a legal relation with entities performing medical procedures, and may even cancel that autonomy completely. They may also place some public law obligations on the medical service establishments, and the performance of these obligations may lead to establishing such a relation between those entities and the patient8.