Property Rights in the Patient’s Legitimate Expectations

Chapter 8
Property Rights in the Patient’s Legitimate Expectations

If we examine the modern legal meaning of property, we can see its enduring appeal as a means of asserting the autonomy of the individual.¹

As a man is said to have a right to his property, he may be equally said to have property in his rights.²

In the first few chapters of this book, it was seen that the doctor–patient relationship and the assertion of patients’ right to self-determination have been influenced by, and evolved in tandem with, the ascendance of rights thinking and consumer advocacy. The relationship between consumers and the providers of goods and services is regulated by laws of contract, tort and property. The place of tort in the protection of patient self-determination has been discussed in Chapter 3. The place of contract has not been discussed, but its place in the UK medico-legal arena is limited to the relatively small size of the private sector, where doctors providing services privately are deemed to have a contractual relationship with their patients and can be sued in contract.³ In the NHS, doctors do not legally have such a contractual relationship with their patients⁴ although, as seen in Chapter 2, one model of the doctor–patient relationship could be described as contractual in nature.⁵

The subject of this book is the application of the third regulatory modality – property – to the doctor–patient relationship. One way of applying this is by treating a person’s body as his/her property, and on this basis treating the right to bodily integrity as a right to property. The arguments against this approach have been discussed in the previous chapter, and it has been concluded that the concept of property adopted in this book does not permit the commodification or other arguments to hold sway.

Once these arguments are disposed of, it would be logical for Lord Tebbit’s assertion (‘my body is my property’)⁶ to be backed by the law. On its own, however, the body-as-property approach would be inadequate for establishing a property model for protecting patient self-determination. One reason for saying so is that concentration on ‘body as property’ supports a narrow conception of property, whereas the case has been made in Chapter 6 for a broad, ‘Madisonian’⁷ conception. Secondly, a model founded solely on body-as-property will continue to elicit vocal opposition from those who maintain the commodification argument, thus stalling any moves to implement the property model as an alternative to the consent model. Thirdly, this approach based on a narrow conception of property will not fit easily with the Underkuffler framework that has been adopted in this book, and will therefore not have the advantages offered by this framework, such as the ability to define stringency of protection.

A key point is that property (as understood in this book) defines a relationship, not a thing. Moving away from the reification of property, a novel theory of property rights in the doctor–patient consultation is developed in this chapter. This theory ascribes property rights to the patient’s expectations from the doctor–patient consultation, and the correlative duties of the doctor are regarded as fiduciary and at the core of medical professionalism. If the patient’s legitimate expectations are accorded proprietary rights, they have the protection that property law offers, and this may have advantages over the consent model in securing self-determination. By thinking of legitimate expectations as giving rise to proprietary rights we move away from the notion of property as a thing and follow the alternative notion of property as defining relationships. This stance is also consonant with a social relational approach, which in turn is consonant with the ecology paradigm (discussed in Chapter 1).

Protecting the Vulnerable

It is not unusual for the law to protect the expectations of consumers. Consumer expectations are protected in product liability law. For example, the European Council Directive on General Product Safety 2001/95/EC states that the conformance of a product to a general safety requirement shall be assessed taking into account ‘reasonable customer expectations regarding safety’⁸ (among other considerations). Consumer protection law commonly upholds consumer rights by requiring providers to disclose detailed information about their goods and services, particularly where safety or public health is an issue.

In general, the law tends to protect the interests of the more vulnerable party by imposing obligations on the more powerful party. Academic commentators have made the case for the use of property rights to protect the interests of those affected by the closure of industrial plants in the USA,⁹ the interests of individuals who are victims of takings¹⁰ and the interests of employees in a publicly traded firm.¹¹ The case for these pleadings is based on the need to legally protect these interests and a recognition of the security associated with property rights.

Fundamentally, there is little difference between these interests and a patient’s interest in being able to make informed decisions about his/her treatment; they all relate to basic human and consumer rights and it would not be out of place for the law to protect the patient’s interests in the same way that it protects the vulnerable party in the examples given above. In transactions between two parties, what each party gets out of the transaction is usually a function of its power relative to the other. In the doctor–patient consultation, the patient is the more vulnerable party and, as argued in previous chapters, the consent model has proved incapable of offering the vulnerable party adequate protection in the face of a steep power gradient between doctor and patient. This gradient is partly responsible for the gap between the theoretical and the operationalised paradigms of consent and for the prevalence of Category III consent.¹²

If the consent model is not fit for purpose in this regard then, as argued earlier, the solution is not to tinker with this model but to explore alternative models. The starting point for one such approach is to recognise the patient’s interest in making decisions on his/her own treatment; the right tool for protecting this interest can then be sought and applied. The patient has a legitimate expectation that the doctor will, in the course of the consultation, recognise and respect his/her right to self-determination. Respect for this right entails engagement with the patient, provision of tailored information, taking reasonable steps to ensure comprehension and accepting the patient’s decision.

This right to self-determination should be protected as a legal right in itself.¹³ The legitimate expectation which flows from that right should be protected as a distinct legal interest. Property analysis has the potential to come to the rescue here: the legitimate expectation can be protected as a proprietary right. Property, as discussed in Chapter 6, defines the relationship between parties, and proprietary rights offer a means of protection to an otherwise vulnerable party in a transaction or relationship.¹⁴ The patient’s legitimate expectations from a consultation with the doctor constitute a chose in action. As discussed in Chapter 6, a chose in action is a property interest that can be enforced only through legal action; the term was originally used to cover rights associated with a personal action, and it was argued a century ago that a right of action in tort could be regarded as a chose in action. It is, therefore, not anomalous to suggest that the patient’s legitimate expectation could be regarded as a chose in action.

Treating the patient’s expectation as property would be similar to what happens with intellectual property and other intangible valuables:

… the owner of patent rights in a machine owns neither a particular machine nor the model or drawings of the machine submitted to the patent office, but rather the rights to control the use of his or her design for the machine. Immaterial, or even ‘non-existent’ entities can be subjugated to property regimes, if they are believed to have value, if they can be clearly conceptualized, and if they can be ‘constructed’ in such a way as to make property rights in them administrable. For example, the laws of slander and libel have been made to protect something as immaterial as a businessman’s ‘property in reputation’.¹⁵

In other words, there is nothing extraordinary in treating patient expectation as property and, as it meets the criteria outlined in this quote, there is no legal reason why it cannot be treated as such. In the following paragraphs the principle of property rights in expectation and how this principle could be applied to the doctor–patient transaction are explored. The central role of trust in this transaction is emphasised and, as one of the criticisms of the consent model is that it negates trust, the possibility that recognising the doctor’s duties as fiduciary can help build trust is also explored. In the property model proposed in this book, the patient’s legitimate expectations are accorded property rights and, correlative to this, the doctor has fiduciary duties which include the duty to respect the right to self-determination. If this model works, therefore, it will enshrine trust while also upholding self-determination.

Expectation interest (the interest of a party to a breached contract in receiving the benefit of the bargain by being put in a position as good as that which would have resulted had the contract been performed) and reliance interest (the interest of a party to a breached contract in being compensated for detriments suffered in reliance on the agreement) are firmly embedded in contract law.¹⁶

Reliance interest is also established in divorce law.¹⁷ The idea that expectation should in certain circumstances be protected by the law is therefore not new.

The idea that expectation could be treated as property is also not entirely new – what is new is its application to self-determination in health care and particularly, to the doctor–patient consultation. Jeremy Bentham declared that ‘[p]roperty is nothing but a basis of expectation’.¹⁸ Powell noted that the law ‘has recognised and protected even the expectation of rights as actual property’.¹⁹ Demsetz theorised that property rights are an instrument of society, and posits:

In the world of Robinson Crusoe property rights play no role. Property rights are an instrument of society and derive their significance from the fact that they help a man form those expectations which he can reasonably hold in his dealings with others. These expectations find expression in the laws, customs, and mores of a society.²⁰

Patent law is now firmly established, but at its heart lies a recognition of property in the expectation of the patent holder.²¹ Harris argued that expectations grounded on the privileges of being a white person amounted to property.²² Further, Nwabueze has speculated that ‘the need to protect certain societal expectations may lead to the emergence of new forms of property’.²³

Expectation has also featured in the personhood theory of property (briefly discussed in Chapter 6). Radin, an exponent of this theory, said:

This view of personhood [as a continuing character structure encompassing future projects or plans, as well as past events and feelings] also gives us insight into why protecting people’s ‘expectations’ of continuing control over objects seems so important. If an object you now control is bound up in your future plans or in your anticipation of your future self, and it is partly these plans for your own continuity that make you a person, then your personhood depends on the realization of these expectations. This turn to expectations might seem to send property theory back toward Bentham, who declared that ‘the idea of property consists in an established expectation.’ But this justification for honoring expectations is far from Benthamite, because it applies only to personal property.²⁴

An opportunity for a judicial test of the proposition that expectation could be property arose in the American case of Local 1330, United Steel Workers of America v. U.S. Steel Corp.²⁵ The claimant was a labour organisation representing the workers of a steel mill. The defendant, United States Steel Corporation, had been running a steel mill in Youngstown, Ohio, for many years but decided, in view of the age of its machinery and developments in technology and marketing, to shut down the steel mill. This was certain to lead to the economic demise of the community. The company declined the workers’ offer to buy the plant. The labour union went to court on the matter. At the pre-trial hearing the judge said:

Everything that has happened in the Mahoning Valley has been happening for many years because of steel. Schools have been built, roads have been built. Expansion that has taken place is because of steel. And to accommodate that industry, lives and destinies of the inhabitants of that community were based and planned on the basis of that institution: Steel.

We are talking about an institution, a large corporate institution that is virtually the reason for the existence of that segment of this nation … It would seem to me that when we take a look at the whole body of American law and the principles we attempt to come out with – and although a legislature has not pronounced any laws with respect to such a property right, that is not to suggest that there will not be a need for such a law in the future dealing with similar situations – it seems to me that a property right has arisen from this lengthy, long-established relationship between United States Steel, the steel industry as an institution, the community in Youngstown, the people in Mahoning County and the Mahoning Valley in having given and devoted their lives to this industry. Perhaps not a property right to the extent that can be remedied by compelling U.S. Steel to remain in Youngstown. But I think the law can recognize the property right to the extent that U.S. Steel cannot leave that Mahoning Valley and the Youngstown area in a state of waste, that it cannot completely abandon its obligation to that community, because certain vested rights have arisen out of this long relationship and institution.²⁶

Subsequently, the steelworkers sought an injunction, claiming that their long dependence on the plant entitled them to property rights in the plant. Their claim was unsuccessful, despite the views expressed by the judge at the pre-trial hearing. The district court denied relief, holding that the refusal to sell the plant to the workers did not constitute an antitrust violation; that the workers could not assert a property interest in their jobs.²⁷ The workers filed an appeal with the Sixth Circuit Court of Appeals,²⁸ and this appeal was supported by amicus curiae from the Center for Constitutional Rights which argued that companies such as the steel giant that received substantial public funding should be constrained by judicial control to act in the best interests of the community.

The appeal court expressed sympathy for the community interest that was the subject of appeal but ruled that there was no legal authority to support a property claim as advanced by the workers.²⁹ A couple of years after this ruling the steel plants were destroyed. This case is similar to the Moore³⁰ case in that the courts recognised the disadvantaged position of the claimant but felt uncomfortable with the idea of ameliorating this through application of property analysis. It appears that in both cases, the court’s decision was strongly influenced by policy considerations (in the former, the impact of restraining an industrial company from moving its operations as dictated by economic factors; and in the latter, the impact of the court’s decision on scientific and technological innovation).

The decision in this case has been robustly criticised by Singer.³¹ In a comprehensive analysis of a property in reliance interest, Singer argued that, contrary to the statement of the court in US Steel Workers, there was legal support for the property claim made by the workers. He cited public trust doctrine, adverse possession, easements by estoppel, easements by necessity and public rights of access as legal doctrines which provide relevant precedent for the property right described by Judge Lambros at the pre-trial hearing. He argues that:

The doctrines of adverse possession, prescriptive easements, easement by estoppel and easement by necessity all stand for the same proposition: Where a non-owner of property comes to rely upon access to property, the law sometimes recognizes the non-owner’s vulnerability and shifts some or all of the property rights from the title owner to the non-owner. The rules in force therefore protect the non-owner’s reliance on her relationship with the owner that made access to the land possible.³²

Interestingly, the doctrines which he refers to as providing the legal precedent to establishment of property in legitimate expectation are legal doctrines that apply in situations where the parties concerned are strangers to each other, in the sense that they did not have a pre-existing agreement. A parallel could be drawn between this situation and the situation in clinical practice described as ‘Strangers at the Bedside’.³³

Although the court did not recognise a property interest in this particular case, Singer’s comprehensive analysis is convincing enough to support a belief that there are reasonable prospects of the courts upholding this right in future cases, bar countervailing policy considerations. In any case, the doctrines of easements are evidence that, regardless of the court’s decision in a particular case, expectation and reliance interests may be regarded as property rights in law. The challenge is to show how and why this can be extended to the doctor–patient relationships

Expectation and reliance interests associated with the doctrines of easement have developed in the course of a continuing relationship between both parties. In the case of doctor and patient, the expectations that may be subject of property rights arise a priori from the covenant between both parties. Underlying this covenant is medical professionalism. Medical professionalism specifies the duties of the doctor, and the patient, relying on professionalism, expects the doctor to act in accordance with professional norms. This reliance is an act of trust.

Medical professionalism is the framework of values, attitudes and behaviour that defines the relationship between doctors and patients, in the context of society.³⁴ Medical professionalism is what distinguishes medicine as a profession from medicine as a commodity.³⁵ It is the bedrock of the trust implicit in a traditional patient–doctor relationship where it is normative that the doctor will always act in the best interest of the patient. The patient is, by virtue of illness and of inferior technical knowledge, in a vulnerable position, and reposes trust in the doctor to act in his or her best interests. The Tuskegee,³⁶ Willowbrook³⁷ and Shipman³⁸ disasters referred to in Chapter 2 are failures of medical professionalism.

When it comes to promoting patient self-determination in clinical practice, however, it is important to adopt the right strategy. Jones drew attention to the importance of looking at the shop floor when exploring the law of consent and its application.³⁹ It has been shown in empirical studies that clinicians’ perception of what the law of consent requires is often different from what the law actually says.⁴⁰ The protection of patient self-determination may start with the law but it is operationalised in the consultation rooms, so it goes to the heart of medical professionalism.

The doctor must a priori see the patient as an individual, with his/her own values, attitudes, beliefs and knowledge. Wright and colleagues showed that patients wanted ‘to be afforded the dignity and rights associated with being “a human being, somebody who has an opinion”’.⁴¹ Having elicited in a qualitative study the views and needs of patients, they said that:

When individuals feel vulnerable in the face of major threats, they seek attachment figures to help them feel safe. Only a doctor who was believed to be expert, to value the patient as an equal, and to be committed to the patient in a unique relationship could fulfil this role. The starting point for study and training of clinical communication should therefore be patients’ vulnerability and dependence on doctors.⁴²

Medical professionalism should be taught at undergraduate, postgraduate and continuing education levels and the property model, enshrined in medical professionalism, should be part of the curriculum.

While there has been no difficulty in recognising the value of medical professionalism, there has been less certainty about what it actually entails. Traditional notions of professionalism have construed it in terms of trusteeship and altruism: Rosen and Dewer describe the traditional image of medical professionalism as that of ‘a selfless clinician, motivated by a strong ethos of service, equipped with unique skills and knowledge, in control of their work and practising all hours to restore full health to “his” or “her” patients’⁴³ but some more recent notions have focused on delivery of technical expertise.⁴⁴