The French rules that govern medical relationships come both from public and private law and trials, and can be judged both before administrative and judicial court, depending on whether the patient is treated in a private or public structure.
The medical relationship is analysed differently in public and private law:
- It is a contract in private law,
- It is a statute and not a contract in public law.
Such differences of qualification would not be theoretically problematic if the concrete situations of patients treated in hospitals or in private structure were very different. But this is not the case. Especially since the passing of a bill in 2002, most of the rules that govern this relationship have been the same. How is it that two identical situations can be qualified differently?
This divergence of qualification has some practical consequences. The refusal of the contractual qualification leads administrative courts to refuse hospitals’ requests to sue a patient’s relatives who have agreed to pay the medical fees for that patient. Since there is no contract between the patient’s relative and the hospital, the court considers the hospital has no right to sue the patient’s relative.
The refusal of the contractual qualification could also lead administrative courts refusing to give effect to agreements made between public hospitals and foreign patients who come to France to be treated. Such a solution would be a serious competitive disadvantage to the international treatment market and would be problematic for our hospitals who try to attract foreign patients. Indeed hospitals can charge those patients more than they would charge local patients, which thus contributes to reducing their deficits.
I believe that the reason for this divergence lies in the ambiguity of the notion of contract. When deciding whether a medical relationship is a contract, the judicial courts look at the procedure that brings together patient and doctor (or clinic), whereas administrative courts look at the rules that govern the relationship between patient and hospital. One focuses on the procedure, the other on the effects. In other fields of law this tension is not evident and the fact that the notion of contract merges these two approaches is unproblematic (see H. Kelsen, 1940). But this does not apply to the medical relationship, where this tension leads to different qualifications and different solutions to concrete problems. If one wants to solve these problems, a choice has to be made concerning the notion of contract.
My point of view is that contract should designate the negotiated effects of a relationship, the procedure being then analysed using the concept of the legal act. This implies that some of the rules that are stated to be governing the contract — mostly the rules that govern the validity — be reattributed to the legal act. Thus, all medical relationships would receive the same qualification - legal act - which would also explain why their validity is now governed by the same rules (mostly norms related to the consent of the parties and the aim they follow). The difference between private and public relationship would of course persist when studying some effects of these relationship. But those differences would no longer generate the practical inconveniences mentioned above.