Doctors as fiduciaries--revisiting the past with an eye on the future

A substantial proportion of the body of literature dealing with the question of whether or not a doctor stands in a fiduciary relationship with a patient in Australia assumes or asserts that this should be the case, despite strong indications to the contrary in Australian case law. Three key bases for making such assertions, the internationalist, revisionist and remedialist approaches, are identified and critiqued. It is argued that each of these approaches to justifying the characterisation of the doctor-patient relationship as a fiduciary one is flawed and unlikely to meet with success in future litigation. Additionally, there are issues of economic and resource allocation conflict in doctor-patient relationships. The implications for these conflicts in the doctor-patient fiduciary debate are briefly considered. It is concluded that, contrary to the dominant assertion in the extant literature on the subject, in Australia at least, the scales tip against, rather than towards, the characterisation of the doctor-patient relationship as a fiduciary one.