SECTION I

The following part shall be inserted after part 4 of the seventh title of Book 7 of the Civil Code:

PART 5

Medical treatment contracts

Article 446

1. The contract concerning medical treatment -hereinafter referred to in this part as the treatment contract- shall be the contract whereby a natural or legal person, the care provider, undertakes in respect of another, the principal, to carry out in the pursuance of a medical occupation or enterprise medical actions directly affecting the person of the principle or of a particular third party. The person thus directly affected is hereinafter referred to as the patient.
2. Medical actions shall be taken to mean:

1. All procedures -including examinations and the provision of advice- directly affecting a person and intended to cure a disease, prevent its onset, assess a person's state of health or render obstetric assistance.
2. Actions other than those referred to in (a) which directly affect a person and which are carried out by a doctor or dentist acting in that capacity.

1. The actions referred to in paragraph 1 shall also include the attendant care and nursing of the patient and the provision in any other way for the latter's direct benefit of the material circumstances under which such procedures may be carried out.
2. Actions as referred to in paragraph 1 shall not include procedures in the field of pharmacy within the meaning of the Medicines Act if carried out by an independently established pharmacist within the meaning of that Act.
3. Actions to assess a person's state of health or to provide medical supervision shall not constitute a treatment contract if carried out on the instructions of a person other than that person in connection with determining claims or obligations, eligibility for acceptance by an insurer or access to a facility, or suitability for a course of training, employment or the performance of certain tasks.

Article 447

1. A minor who has attained the age of sixteen shall be competent both to enter into a treatment contract on his own behalf and to act in law in matters directly connected with the agreement.
2. A minor shall be liable in respect of the commitments ensuing therefrom, without prejudice to the obligation resting on his parents to meet the costs of care and upbringing.

Article 448

1. The care provider shall inform the patient clearly and, if requested, in writing of the proposed examination and treatment and of developments related to the examination, the treatment and the state of health of the patient. He shall provide patients under the age of twelve with information in a way they are able to understand.
2. In carrying out the obligation laid down in paragraph 1 the care provider shall be guided by what is reasonable for the patient to know with respect to:

1. the nature and purpose of the examination or treatment the care provider deems necessary and of the procedures to be carried out;
2. the likely attendant risks to and consequences for the health of the patient;
3. other relevant methods of examination or treatment.

1. The care provider may withhold from the patient the information in question only if its provision would manifestly cause the latter serious harm. If the interest of the patient requires, the care provider must give the information to a person other than the patient. The information shall be provided to the patient when there is no longer any danger of causing the harm referred to above. The care provider shall not use the authority referred to in the first sentence without having consulted another care provider on the matter.

Article 449

If the patient has expressed a wish not to be informed, information shall not be provided, except where the interest of the patient is outweighed by the harm to himself or others which may ensue from withholding it.

Article 450

1. Procedures carried out for the purpose of implementing a treatment contract shall require the consent of the patient.
2. If the patient is a minor and has not yet attained the age of sixteen but is over twelve, the consent of the parents who exercise parental authority over him or of his guardian shall be required. However, the procedure may be carried out without the consent of the parents or the guardian if it is manifestly necessary in order to avoid serious harm to the patient or if the patient, after careful consideration, still wishes the procedure to be carried out after consent has been refused.
3. If a patient aged sixteen or over cannot be deemed capable of reasonably assessing his interests in the matter, the care provider and a person as referred to in paragraphs 2 or 3 of article 465 shall comply with the apparent opinion of the patient expressed in writing while he was still capable of the said reasonable assessment of his interests and containing a refusal to grant consent as referred to in the first paragraph. The care provider may deviate from this if he deems that there are good reasons for so doing.

Article 451

At the request of the patient, the care provider shall in any event set out in writing the radical procedures for which the latter has given his consent.

Article 452

The patient shall to the best of his knowledge furnish the care provider with the information and co-operation which the latter may reasonably require in order to implement the contract.

Article 453

The care provider must in the course of his duties have regard for the standard of care required of a competent care provider and must act in accordance with the responsibilities ensuing from the standard of professional care required of care providers.

Article 1653h

If it is agreed that actions as referred to in article 1653 are to be carried out by a certain person, the procedures necessary for the implementation of the treatment contract must be performed by that same person, except where it follows from the contract that he may instruct others to perform them, without prejudice to the liability of the care provider.

Article 454

1. The care provider shall keep a file relating to the treatment of the patient. He shall use the file to record data concerning the health of the patient and the procedures performed on the latter. The care provider shall also include other documents containing such information as is necessary for the purpose of providing the patient with the proper standard of care.
2. The care provider shall if requested add to the file a statement made by the patient with regard to the documents included therein.
3. Without prejudice to the provisions of article 455, the care provider shall keep the documents referred to in the preceding paragraphs for ten years from the date on which they were produced or for as long after the expiry of this period as is reasonable in order to provide the proper standard of care.

Article 455

1. The care provider shall destroy the documents in his keeping referred to in article 454 within three months of receiving a request to this effect from the patient.
2. Paragraph 1 shall not apply in so far as the request concerns documents whose retention may reasonably be assumed to be of considerable importance to a person other than the patient. Nor shall it apply in so far as their destruction conflicts with provisions laid down by or pursuant to Act of Parliament.

Article 456

The care provider shall if requested provide the patient with access to and copies of the documents referred to in article 454. Access to and copies of the documents shall not be provided in so far as this is necessary to protect the privacy of person other than the patient. The care provider may charge a reasonable fee for providing the copies.

Article 457

1. Without prejudice to the provisions of article 448, paragraph 3, second sentence, the care provider shall ensure that persons other than the patient are not provided with information about the patient or with access to or copies of the documents referred to in article 454 without the consent of the patient. Information or access to and copies of documents shall be provided only in so far as no other person's privacy is thereby infringed. Information or access to and copies of documents may be provided regardless of the restrictions referred to in the preceding sentences if provisions laid down by or pursuant to Act of Parliament so require.
2. Persons other than the patient shall not include those who are directly involved in the implementation of the treatment contract or a person who acts as locum for the care provider, in so far as the provision of information or access to or copies of documents is necessary for the activities to be performed by them in that context.
3. Nor shall they include those whose consent in connection with the implementation of the treatment contract is required pursuant to articles 450 and 465. If by providing information or access to or copies of documents, the care provider cannot be deemed to be acting in accordance with what is required of a competent care provider, he shall refrain from doing so.

Article 458

1. Notwithstanding the provisions of article 457, paragraph 1, information about the patient or access to the documents referred to in article 454 may, if requested, be supplied to another person for the purpose of statistics or scientific research in the field of public health without the patient's consent, if:

1. consent cannot be reasonably requested and guarantees are provided that the patient's privacy will not be inordinately infringed by the conduct of the research;
2. consent cannot reasonably be requested given the nature and purpose of the research and the care provider has ensured that the data are supplied in such a form as to ensure that they cannot be traced back to individual natural persons.

1. Information may be provided in accordance with paragraph 1 only if:

1. the research is in the public interest;
2. the research cannot be conducted without the information in question, and
3. the patient in question has not explicitly objected to information being provided.

1. The fact that information has been provided under paragraph 1 shall be noted in the patient's records.

Article 459

1. The procedures carried out by the care provider in the framework of the treatment contract shall not be observed by any individual other than the patient unless the patient has given permission therefor.
2. Individuals other than the patient shall not include those whose professional assistance is required to carry out the procedures in question.
3. Those individuals whose permission for the procedure is required under articles 450 and 465 shall not be included either. If, by allowing the procedure to be observed, the care provider cannot be deemed to be acting in accordance with what is required of a competent care provider, he shall not permit such observation.

Article 460

The care provider shall not terminate the treatment contract unless there are cogent reasons for doing so.

Article 461

The patient shall pay the care provider a fee unless the latter receives a salary for his work under provisions laid down by or pursuant to Act of Parliament, or unless otherwise specified by the contract.

Article 462

1. If, in the implementation of the treatment contract, procedures are carried out in a hospital which is not a party to the contract, the hospital shall bear joint liability for any failure to comply with the provisions of the treatment contract as if it were a party to the contract.
2. A hospital as referred to in paragraph 1 shall be taken to mean an institution or department thereof recognised or designated as a hospital, nursing home or mental institution for the purposes of the Health Insurance Act or the Exceptional Medical Expenses Act, a teaching hospital, an abortion clinic within the meaning of the Termination of Pregnancy Act or a dental clinic within the meaning of the Dental Clinics Act 1986.

Article 463

No limitation or exception can be made in respect of the liability of a care provider or, in the case referred to in article 462, of a hospital.

Article 464

1. If in the pursuance of a medical occupation or enterprise medical actions are performed other than by virtue of a treatment contract, this part and articles 404, 405, paragraph 2 and 406 of part 1 of this title shall apply mutatis mutandis in so far as the nature of the legal relationship permits.
2. If the actions in question are those specified in article 446, paragraph 5:

1. the documents referred to in article 454 shall be kept only for as long as is necessary in connection with the purpose of the examination unless their destruction would conflict with provisions laid down by or pursuant to Act of Parliament;
2. the person to whom the research relates shall be given the opportunity to say whether or not he wishes to be informed of the results and the conclusions of the research and, if so, whether he wishes to be the first to be notified so that he can decide whether others are to be informed.

Article 465

1. If the patient has not yet attained the age of twelve, the care provider shall fulfil the obligations to the patients arising from this part in respect of either the parents who exercise parental authority over the patient or the latter's guardian.
2. The same shall apply if the patient has attained the age of twelve but cannot be deemed capable of making a reasonable assessment of his interests in the matter, unless the patient has attained the age of majority and is under guardianship, in which case the obligations shall be fulfilled in respect of the guardian.
3. If a patient who has attained the age of majority and who cannot be deemed capable of making a reasonable assessment of his interests in the matter is not under guardianship, the care provider shall fulfil the obligations to the patient arising from this part in respect of the person who is authorised in writing to act on the patient's behalf. If there is no such person or if he does not act, the obligations shall be fulfilled in respect of the spouse or other partner of the patient, unless the latter refuses, or, if there is no such person, in respect of a parent, child, brother or sister of the patient.
4. The care provider shall fulfil his obligations in respect of the patient's legal representatives as referred to in paragraphs 1 and 2 and the persons referred to in paragraph 3 unless this is incompatible with what is required of a competent care provider.
5. The person in respect of whom the care provider is bound by paragraphs 2 and 3 to fulfil his obligations to the patient arising from this part shall exercise the duty of care of a good representative. This person shall involve the patient as much as possible in the carrying out of his duties.
6. If the patient objects to a procedure of a radical nature for which a person as referred to in paragraphs 2 or 3 has given permission, the procedure may be carried out only if it is manifestly necessary to prevent serious harm to the patient's health.

Article 466

1. If pursuant to article 465, the performance of a procedure requires only the permission of a person referred to therein rather than that of the patient, the procedure may be performed without such permission if there is no time to request it because immediate performance of the procedure is manifestly necessary to prevent serious harm to the patient.
2. Permission required pursuant to articles 450 and 465 may be presumed to have been given if the procedure in question is not of a radical nature.

Article 467

1. Anonymous substances or parts secreted from the body may be used for medico-statistical or other medico-scientific research in so far as the patient from whom the bodily material originates has not objected thereto and the research is carried out with due care.
2. Research using anonymous substances or parts shall be defined as research which guarantees that the bodily material used for research purposes and the data obtained therefrom cannot be traced back to the person from whom they originated.

Article 468

The provisions of this part and of articles 404, 405, paragraph 2 and 406 of part 1 of this title may not be deviated from to the detriment of the patient.

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