When a patient requests a consultation, a care contract is concluded. For such a contract to be valid, the patient or their legal representative must be of legal age and capable of judgment (Art. 16 of the Swiss Civil Code).
For young children, the holders of parental authority (usually the parents) enter into the care contract on their behalf.
The care contract is governed by the provisions of the Swiss Code of Obligations (CO) relating to simple mandates (Articles 394 to 406 CO).
Such a mandate is generally established when the patient requests to be examined or treated by the practitioner, and an appointment is agreed upon.
The mandate given to the dentist covers:
- medical history (anamnesis)
- examination
- diagnosis
- advice
- and treatment
The patient is free to choose their dentist.
The dentist is not obliged to accept a mandate and is therefore only required to provide care in emergency situations.
However, the practitioner may not refuse a patient for discriminatory reasons (such as skin color, religion, etc.).
As a mandatary, the dentist is generally required to carry out the treatment personally. This does not prevent them from being assisted by qualified staff within the clinic.
However, the dentist must:
- give appropriate instructions to their assistants
- assign tasks in line with their competencies
- and supervise them accordingly
The dentist is not bound by an obligation of result, but by a duty of diligence. They must act conscientiously, to the best of their ability, and according to the standards of dental practice.
All treatments must be medically justified. The dentist has the necessary knowledge and skills to provide care accordingly.
A dentist may only fulfill a request for specific treatment or procedures from a patient or their representative if such treatment complies with generally recognized medical standards.
The dentist is required to inform the patient in a clear and understandable manner about:
- the various therapeutic options
- the nature of the proposed treatment
- and the potential risks of the procedure so that the patient can give informed consent (Federal Court Decision ATF 119 II 456).
The consent of the patient (or their representative) must be given freely, and they must receive sufficient information from the dentist beforehand.
The dentist is accountable to the patient at all times.
The care mandate may, in principle, be terminated at any time by either party. However, for the dentist, his right is limited if termination could endanger or negatively impact the patient’s health. If the mandate is terminated at an inopportune time, the party responsible may be liable for damages.
Adapted from: Legal Foundations for the Daily Practice of Physicians, 2nd edition, revised and supplemented with a chapter on adult protection law, published by the Swiss Academy of Medical Sciences and the Swiss Medical Association (FMH).
- CC: Swiss Civil Code
- CO: Swiss Code of Obligations