Patient or consumer : the medical patient is not a consumer

By not applying the French Consumer Code to the patient of a dental surgeon, the Paris Court of Appeal refused to assimilate the patient to a consumer (Paris Court of Appeal, 21 March 2013, n°12/01892).

Patient ou consommateur

Patient or consumer ?

The Court stated that the provisions of article L111-1 of the French Consumer Code […] are not intended to regulate the relationship between a patient and a health professional, a relationship which is organised  by the French Public Health Code provisions. The relationship between health professionals and their patients is therefore governed by the French Public Health Code, not by the French Consumer Code.

When applying this principle to the health professional’s obligation to inform the patient of medical care or its cost, the obligation to inform will have to comply with the provisions of the French Public Health Code (article L.1111-3), and not with those of the French Consumer Code (article L.111-1). Even though the decision of the Paris Court of Appeal concerned a dispute between a dental surgeon and his patient, there is no doubt that this decision is applicable to all health professionals who will thus have to comply with the article L.1111-3 of the French Public Health Code.

Will this Paris Court of Appeal judgement end the extension of the notion of the consumer, which in the absence of a legal definition varies in accordance with interpretations and intentions, often protecting weakened or disadvantaged persons?

The previous approach: the patient is a consumer

Previously, both judicial and administrative case law attributed the status of “consumer” to the patient in order to facilitate the application of medical liability (Cass. Crim, 15 May 1984, n°84-90252 and CE, 27 April 1998, n°184473). In the past, because there were no specific provisions concerning healthcare law, the use of concepts found in consumer law helped to sanction health professionals who failed to correctly execute medical contracts. Following this logic, the client (patient) was a “healthcare consumer” and the health professional a “service provider”; the fact that the activity was a liberal and medical profession was not taken into account. Health became a simple consumer good.

However, despite the fact that health professionals have an obligation to disclose information to their patients concerning the cost of the care and the risks incurred, medical contracts cannot, in their formation or their execution, be considered as a basic consumer contract because of their nature and intuiti personae character.  Indeed, the medical service concerns the person as a whole and not a simple good.

The criticism of this position

For these reasons, at the time of the decisions quoted above, treating patients as consumers was very criticised. According to critics, whilst the obligation to disclose the most complete information possible to the patient is essential for their protection, this obligation to inform does not justify the indefinite extension of the notion of a consumer. Instead, the notion is regulated by the French Public Health Code provisions.

Subsequently, French Public Health Code provisions and case law have gradually reinforced the obligation of the health professional to inform their patient and have given some tools to avoid using the qualification of “healthcare consumer” and to impose an obligation of information specific to the medical contract.

From now on, the most recent version of article L.1111-3 of the French Public Health Code imposes similar obligations with regard to patients’ information to information required for the consumer by the French Consumer Code provisions.

The view to be pursued: the patient is no longer a consumer

In any case it is important to stay attentive to the Court of Cassation’s future positioning if the Court rules on this specific area again.