It is a well settled doctrine that where one occupies a position which naturally gives him the confidence of another, or which in any way gives him an influence, or an undue advantage over the other, transactions between them require something more to give them validity than is necessary in other cases. The mere fact of the existence of such a relationship as naturally creates influence over the mind will lead the courts to infer the probability of undue influence having been exerted. Confidence has been held to imply the opportunity for influence, and when established, dispenses with any more direct proof of influence. In such cases the onus is cast upon the person occupying such a relationship to establish the perfect fairness and equity of the transaction. He must shew that the other acted after full and sufficient deliberation and with all the information that it was material for him to have, in order to guide his conduct, and that he had either independent and disinterested advice, or as ample protection as such advice could have given him ([368]). Rhodes v. Bates ([369]) lays it down that the donor must have had competent and independent advice.
The relation between a medical man and his patient is one in which the probability of undue influence is inferred; |139| and so in dealings with their patients the acts of physicians are watched with great jealousy; not because the Court blames and discountenances the influence flowing from such relation, but because it holds that this influence should be exerted for the benefit of the person subject to it, and not for the advantage of the person possessing it ([370]). The discontinuance of the relationship is only material if the influence has ceased with the relation; and the relation does not necessarily cease because the patient has not medicine actually administered to him at the time ([371]).
Where a surgeon and apothecary obtained from a patient, eighty-five years old, an agreement to pay him £25,000, in consideration of past medical services, duly charged and paid for, and the promise of future medical and surgical assistance until death without charge, and kept the matter concealed until after the death of the patient, the Court, on the prayer of the patient’s executor, ordered the medical man to give up the agreement to be cancelled. So, when an octogenarian patient conveyed by deed of gift a property worth £1,000 to his physician, who was also his intimate friend, and the son of his benefactor, the Court set aside the deed for fraud. (In this case the consideration named in this deed was not the true one.) And even where a patient gave to his surgeon an annuity of £100 for the surgeon’s life, in consideration that he would live with him and give him the benefit of his professional assistance during his (the donor’s) life, it being shown that the surgeon had been told by an eminent physician, just before the deeds were drawn, that the patient could not recover or live long, and that the surgeon himself, about the same time, had said the patient could not live more than a month or so; the Court held the instruments could not be |140| maintained ([372]). A patient, aged, feeble, deaf and of very weak mind, bestowed all his estate on the attending physician, who lived with him, and had controlling influence over him, for an extremely trifling compensation. The transaction was set aside, the Court saying: “Owing to the relation which the parties sustained towards each other, the deed was presumptively the result of undue influence, and therefore prima facie void for that reason. It has been repeatedly declared by learned chancellors that the mere relation of patient and medical adviser was sufficient to avoid the contracts of the former made with the latter during the continuance of such relation” ([373]).
A security given by an old man for £262 10s. to a dentist, in consideration of his old teeth being kept in order and new ones being supplied during the remainder of his life, had to be given up ([374]). And if a man pays an exorbitant bill to a doctor, the Court will grant him relief; and it will be no answer to his asking his money back to say that he intended to be liberal, unless such intentions can be clearly shown ([375]). Even a sale to a patient by the medical man under whose care he is will be set aside if at an exorbitant price, and the purchaser has had no independent advice ([376]).
But where the evidence showed that the patient’s own attorney prepared the papers, that he had independent advice, and understood what he was doing, and exercised his free will, and that the medical man had long attended him, the Court refused to set aside the deed, although the patient was eighty years of age ([377]). And although a |141| gift made to a physician may be voidable, because of his standing in a confidential relation to the donor, a patient, yet, if after the confidential relation has ceased to exist, the donor intentionally elects to abide by the gift, and does, in fact, abide by it, it cannot be impeached after his death, even if it is not proved that the patient was aware that the gift was voidable at his election ([378]).
There is, of course, nothing in the relation of medical attendant and patient which can prevent the one from entering into a contract with the other, where the transaction proceeds openly and fairly, and the relation of physician and patient has, in reality, no bearing upon it ([379]). In the case of a sale by a patient to a physician, where there was no proof of inadequacy of price, the transaction was sustained ([380]).
A strong case must be made to set aside a will on the ground of undue influence. Influence is not sufficient: there must be such a degree of influence as deprives the testator of the proper mastery over his faculties ([381]). To invalidate a will, on the ground of undue influence, it must be shown that it was practised with respect to the will itself, or so contemporaneously with the will, or connected with it, as by almost necessary presumption to affect it; and flattery and obsequiousness, however degrading, will not constitute such an undue influence as will affect the acts of a capable testatrix ([382]). Many wills made in favour of medical men by their patients have been sustained, although disputed, and that even in cases where the patients have been aged, infirm women, with impaired minds ([383]). |142|
A physician, however, may fail to obtain the benefits which a grateful patient has wished him to have under a will, if—as was done in one case—after a long attendance on a patient, he thinks fit, when she is almost on her deathbed, to prepare and procure the execution of a will by which he becomes the principal object of her bounty, to the exclusion of her near relatives; and to do this without the intervention of any solicitor or other person competent to give her advice, and to guard her against undue influence; for in such a case the interests of the public require that his conduct should be regarded by Courts of Justice with the utmost jealousy ([384]). In another case, it was said that although there is no rule of law which forbids a man to bequeath his property to his medical attendant, yet it is not a favourable circumstance for one in such a confidential position, with respect to a patient labouring under a severe disease, to take a large benefit under such patient’s will, more particularly, if it be executed in secrecy and the whole transaction assumes the character of a clandestine proceeding, and in such a case the onus will lie very heavily upon the party benefited to maintain the validity of the will ([385]).
Clairvoyant physicians may also get into trouble. An action was brought against one to set aside a marriage and a conveyance of property worth $25,000. The patient was old, feeble, deaf, childish and a firm spiritualist. The clairvoyant was a woman who pretended to be very modest and bashful and able to cure the deafness. After a course of treatment, mainly by manipulation, she told the old man that the spirits said that they must be married within two weeks, or something dreadful “would step in between them.” |143| By misrepresentations concerning her character and her friends she won the old man and his property. After the honeymoon the patient came to his senses, and prayed to get back his liberty and possessions, because of the fraud used. The Court granted his prayer ([386]).
To promise a cure is unprofessional, and to obtain money on the faith of such a promise is sometimes dangerous. Brown falsely represented himself to A., an ignorant negro, to be a practising physician, and that he had restored sight to the blind. He persuaded A. that his (A.’s) house was infected with poison, and that it was in the bed occupied by his granddaughter, that she was poisoned, and that he could remove the poison if he was paid for so doing. A. gave him $22 to remove it. The Court held that Brown had been guilty of obtaining money under false pretences ([387]).