Norm collisions in the physician–patient relationship

Abstract

The article examines the relationship of application between the Health Services Act and the Civil Code in matters relevant to the legal relationship between the physician (or, more broadly, the healthcare provider) and the patient. It builds on the prevailing position in the scholarly literature, which typically accords the Health Services Act priority in application. The author therefore raises the question whether this one-sided approach genuinely reflects the legislature’s intent.

The article considers whether the regulation contained in the Health Services Act is so comprehensive that applying the Civil Code would, in practice, run counter to the purpose and rationale of the norms governing this area. After clarifying this issue, the author presents, primarily on foreign scholarship, an overview of approaches to competing legal norms, and then applies these approaches to the field of healthcare law. The article concludes that certain legal rules of the Civil Code (especially those concerning informed consent) do not satisfy the criteria of formal speciality. Accordingly, the maxim lex specialis derogat legi generali cannot be applied to them automatically. The author therefore argues for an alternative approach that, in principle, combines the relevant legal requirements of the competing norms. The practical implications of this approach are demonstrated through an analysis of the individual elements on which a physician must inform the patient prior to the provision of health services.