This topic deals with when exactly the practitioner-patient relationship begins. This issue is important, because the practitioner’s legal and ethical duties towards a patient arise when the practitioner-patient relationship comes into existence. These principles are particularly relevant in situations where an emergency occurs, or where one practitioner covers for another.
The ethical and legal duties which arise between practitioner and patient are founded on the existence of a professional relationship.
In most cases, it is fairly obvious that the relationship is in existence. Care is provided to a patient by the healthcare practitioner and the existence of the relationship, together with the related professional duties which the practitioner bears (and responsibilities owed by the patient to the healthcare practitioner) is evident.
It is sometimes important to know exactly when this professional relationship arises. Common examples of where this is the case relate to emergency situations, such as a motor vehicle accident or a flight emergency), or in the casualty department of a hospital when people present themselves complaining of illness or injury.
The basis of the practitioner-patient relationship
Practice as a healthcare professional is based upon a relationship of mutual trust between patients and healthcare providers, thereby emphasising the professional relationship as the foundation of the duties between practitioner and patient.
Being registered as a healthcare professional with the Health Professions Council of South Africa confers on practitioners the right and privilege to practice their professions. Correspondingly, practitioners have moral or ethical duties to others and to society. These duties are generally in keeping with the principles of the South African constitution and the obligations imposed on healthcare practitioners by law.
Therefore, to understand when the practitioner-patient relationship begins, one needs to examine when the law imposes those obligations on practitioners.
There are two legal situations which are relevant in this regard. We shall discuss each of them in turn.
Relationship established by contract
The usual situation is that professional duties arise when a contract is concluded between the healthcare practitioner and the patient. Once a contract is concluded, the healthcare practitioner owes the patient professional duties of care. Although it is often the case that a written contract is concluded, it is not strictly necessary, and an oral contract is valid. Indeed, a contract can even arise where there is no discussion, and the parties make their intentions clear from their conduct.
Relationship established without a contract
What, though, is the situation where the patient is unable to write, speak, or even indicate their acceptance of medical treatment through their conduct, such as in an emergency situation? In such circumstances, a practitioner-patient relationship (and resulting professional duties) can arise even where no contract has been concluded.
The reason for this is that in certain circumstances the law recognises that people are under a legal duty to behave reasonably even where there is no contract between them. In the same way that road users have a legal duty to drive reasonably, and any person injured as the result of negligent driving can sue for damages without the existence of a contract, so healthcare practitioners may be liable for negligence even where there is no contract between them and the patient.
So, for instance, it is clear that a healthcare practitioner owes the patient professional duties once he or she begins to treat the patient, regardless of whether or not there is a contract in existence. In such circumstances, even where there is no contract, a duty arises by virtue of the fact that the healthcare practitioner has assumed responsibility for the care of the patient – in this case, through the practitioner’s treatment of the patient.
In practical terms, this usually happens when the healthcare practitioner knows of the patient’s need for medical services and accepts the patient, or otherwise takes positive steps to interact with the patient in a professional capacity.
Therefore, where a patient has not concluded a contract because he or she lacks the capacity to enter into a contract because the patient is unconscious, drunk, under the influence of drugs, highly emotional, medicated or for any other similar reason, and the healthcare practitioner assumes responsibility for the care of the patient, the healthcare practitioner owes the patient professional duties.
Regardless of how the duty arises, and whether the duty owed by the healthcare practitioner towards the patient arises as the result of a contract or not, the practitioner will have professional duties to provide reasonable care to the patient.
Typical examples of where a healthcare practitioner-patient relationship can arise even where no contract has been concluded are:
1 Where a patient has a mental illness which deprives the patient of capacity.
2 Where a child is being treated who does not yet have the capacity to conclude a valid contract and proxy consent cannot be obtained.
3 In an emergency department, when persons present themselves complaining of illness or injury and before they are treated or received into care in the hospital’s wards.
4 Where a healthcare practitioner treats an unconscious patient in an emergency situation outside a healthcare establishment, such as at an accident scene or during an in-flight emergency.
 Administrator, Natal v Edouard 1990 (3) SA 581 (A).
 Kruger v Coetzee 1966 (2) SA 428 (A).
 Lillicrap, Wassenaar and Partners v Pilkington Brothers (SA)(Pty) Ltd 1985 (1) SA 475.
 Lord Nathan at p 15 (referred to in Correira v Berwind 1986 (4) SA 60 (ZH)).
 Barnett v Chelsea and Kensington Management Committee  1 All ER 785.