DISCUSS THE CONCEPT OF DOCTOR - PATIENT CONFIDENTIALITY

Introduction
The duty of confidentiality as between doctor and patient enjoys both ethical and legal recognition. The duty is founded upon the notion that unless patients are confident that details about their condition and treatment will be kept secret, they may be unwilling to give doctors the information they need in order to provide good care. That is to say, the relationship between a doctor and his patient should be based on the moral principles of loyalty and fair dealing. A doctor is therefore under obligation of confidence to his patient with respect to personal information obtained for the purpose of treatment. The doctor must not disclose such information to others without the patient’s consent. This essay examines the ethical and legal bases of the duty of confidentiality as well as the circumstances where, in the absence of consent, the doctor can justify disclosure of personal information.

Ethical basis of the duty
Apart from the fact that doctors swear the Hippocratic Oath, promising to keep silence on whatever they see or hear from their patients[1], almost all associations of medical and healthcare professionals have introduced guidance on the use and protection of patient information. For example, according to the General Medical Council (GMC) guidance,[2] confidentiality is central to the trust between doctors and patients. The guidance states that if doctors are asked to provide information about patients they should seek patient’s consent to disclosure wherever possible, whether or not they judge that patients can be identified from disclosure. Where identifiable data is needed for any purpose other than the provision of care or clinical audit, members of the GMC are also required to seek patients’ express consent to disclosure of information. A serious breach of the guidelines by a doctor constitutes professional misconduct and the doctor may be struck of the professional register.

The Department of Health has also taken upon itself the responsibility of ensuring that confidentiality of personal information is respected within the National Health Service (NHS). The Department introduced a code of practice[3] for doctors and all other NHS staff with regard to confidentiality. Essentially, the NHS ensures that ‘all patient information is processed fairly, lawfully and as transparently as possible’ in order that patients will, among other things, be confident to consent to disclosure and use of their personal information. The duty of confidentiality is also recognized worldwide. The World Medical Association (WMA) Code of Ethics requires that physicians respect patients’ right to confidentiality.[4] Clearly, ‘respect’ in this context means that not only must doctors avoid disclosing information but they must also take steps to prevent disclosure of information. It is ethical though, according to the WMA code of ethics, to disclose confidential information when the patient consents to it.


Legal basis of the duty
A doctor’s duty of confidentiality is also based on common law and statute law. It must however be mentioned that the law relating to doctor-patient confidentiality is not clear. Case law illustrates that a doctor will breach his duty of confidentiality if others obtain confidential information about patient through his negligent conduct. Case law further illustrates that once personal information was received on the express basis that it was confidential, there would be a breach of confidence if the information was revealed to others. The court’s decision in Stephens v Avery and Others[5] attests to this fact. In every case the court will also determine whether the disclosure of information could cause harm to the person. Thus, in Campbell v MGN[6], the House of Lord held:

The potential for the disclosure of the information to cause harm was an important factor, to which a good deal of weight had to be attached, in the assessment of the extent of the restriction that was needed to protect the claimant's right to privacy.

It is therefore clear that the duty of confidentiality will not only be breached where there is a confidential relationship between the person who gave the information and the one who received it and revealed it to others. It is enough if it can be shown that (i) the information was reasonably expected to be private or confidential; and (ii) disclosure would be highly offensive to a reasonable person. The House of Lord’s decision in the Campbell v MGN case is in line with the decision in the Australian case of Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd[7] which illustrates that there will be a breach of confidence if disclosure would give substantial offence to the person. It is also the case that in determining whether there has been breach of confidence the court may have regard to relevant professional guidelines.[8]

The Human Rights Act 1998 also enables a person to bring a claim against a public authority for breach of his right under the European Convention on Human Rights (ECHR). Article 8 of the ECHR guarantees the right to private and family life and breach of confidentiality can be a cause of action under Article 8. The claimant in the Campbell v MGN case, for example, invoked article 8 in her claim. Other statutes which place people under obligation in relation to confidential information include the Data Protection Act 1998. Under section 10 of the 1998 Act, for example, an individual has the right to prevent processing of data that is likely to cause damage or distress to him.

Disclosure without patient’s consent
As explained above, it is only when a patient is confident that information he/she gives to the doctor about his/her condition will be kept secret that he/she will be willing to tell doctors the information they need in order to provide good care. However, this does not lead to the conclusion that information about a patient should never be disclosed without the patient’s consent. It is both ethically and legally permissible to disclose information about a patient without the patient’s consent. As noted above, where identifiable data is needed for the purpose of clinical audit, information can be disclosed without the patient’s consent. The health care system is such that without disclosure of medical information to others, the system can hardly work efficiently. Arguably, what matters is that disclosure of personal information should not be done in bad faith.

Confidentiality is therefore not a qualified right. In certain circumstances, personal information can be disclosed without the person’s express consent or permission. Without a patient’s consent, a doctor will be justified in breaking confidentiality in the patient’s own interest. This usually happens when the doctor has to consult with other doctors or health care professionals so as to find the best treatment for the patient. The doctor, however, still has a duty to persuade the patient to consent to disclosure of the information and also to tell the party receiving the information that the information is given in confidence. The doctor may also disclose information to an unrelated third party where he has a reason to suspect that the patient is, for example, a victim of physical or sexual abuse. The case of C v Cairns[9] suggests that a doctor will not be liable in negligence for failing to report physical or sexual abuse to a third party where he did not believe that disclosure of information was in the patient’s best interest.

When there is an overriding public interest in disclosure a doctor will be justified in disclosing information about patient. It must be borne in mind that there is the public interest in protecting confidence as well as the public interest in disclosure. Where public interest in disclosure outweighs public interest in protecting confidence, disclosure of information without the patient’s consent will be justified as being in the public interest. The case of Lion Laboratory Ltd v Evans[10] shows that it is in the public interest to disclose personal information without the person’s consent where there has been wrongdoing by the person. Similarly, in A-G v Guardian newspaper (No 2)[11] it was made clear that the right to confidence would not be upheld when to do so would be to cover up wrongdoing.

Doctors can also justify disclosure as being in the public interest if there is a threat of serious harm to others. In W v Egdell[12] the public interest in disclosure of information was found to have outweighed the public interest in the duty of confidentiality. The court ruled that suppression of information would have deprived others (i.e. hospital and the Secretary of State for Information) of information which was relevant to questions of public safety. It follows that a doctor will be justified in revealing information to appropriate authorities if he believes that his patient is likely to be more dangerous than other doctors believe. However, disclosure must be proportionate in extent and made to the appropriate authorities. The GMC Guidance also allows doctors to disclose information without the patient’s consent where there is a risk of serious harm to others. According to the Guidance:

Disclosure of personal information without consent may be justified in the public interest where failure to do so may expose the patient or others to risk of death or serious harm. Where the patient or others are exposed to a risk so serious that it outweighs the patient’s privacy interest, you should seek consent to disclosure where practicable. If it is not practicable to seek consent, you should disclose information promptly to an appropriate person or authority.[13]


There is also a threat of serious harm to others where a patient is infected with a disease which can be easily transmitted to others such as a sexual partner. One of such diseases is HIV. The GMC has issued guidance relating to ‘serious communicable diseases’ which directs doctors to disclose information about a patient, whether living or dead, so as to protect a person from risk of death or serious harm. Doctors may reveal information about a patient with HIV where they have reason to believe that the patient has not informed a known sexual contact of him/her of the disease and ‘cannot be persuaded to do so’. Doctors should however tell the patient, according to the guidance, before they make the disclosure, and must be prepared to justify a decision to disclose information. The guidance requires them not to disclose information to others such as relatives who are not at risk of infection.[14] The Court emphasised in the Egdell case that disclosure may be made only to those whom it is necessary to tell in order to protect the public interest; and to justify disclosure the risk must be ‘real’ rather than fanciful.[15] In X v Y[16] the names of two doctors being treated in hospital for AIDS were improperly disclosed. The health authority sought and obtained an injunction to prevent their publication by a newspaper. The case illustrates that a doctor or other health care worker being treated for a serious communicable disease is entitled to the same confidentiality as other patients but disclosure may be necessary in the public interest to protect others.

Guidance issued by he Department of Health specifies conditions which have to be satisfied in order for disclosure of information to be justified as helping to tackle crime. According the guidance, disclosure will be justified where the task of preventing, detecting or prosecuting crime would be seriously prejudiced or delayed. Disclosure will also be justified where:

Information is limited to what is strictly relevant to a specific investigation; there are satisfactory undertakings that the information will not be passed on or used for any purpose other than the present investigation[17]

Similarly, guidance issued by the GMC provides that disclosure that will be justified where it may assist in prevention or detection of a serious crime.[18] The fact that patient information is relevant to prevention of crime is demonstrated in a number of cases. In R v Singleton[19] for example, it was made clear that a police officer may obtain access to excluded material or special procedure material for the purposes of a criminal investigation when disclosure is in the best interests of a child or young person or vulnerable adult who does not have the maturity or understanding to make a decision about disclosure. However, It must be stressed that only the prevention of ‘serious crime’ may justify disclosure of confidential information. In every case, a balance will be struck between public interest in maintaining confidential information and public interest in disclosing it.

The law also permits disclosure of confidential information for conduct of medical research, teaching and clinical audit. The GMC guidance directs that a patient’s consent should be obtained, where possible, for disclosure of personal information even where disclosure of information about patients for the purpose of research, medical or clinical audit, education or training, or for public heath safety is unlikely to have personal consequences for the patient. The guidance further states that doctors may anonymise records but where it is not practicable to obtain patient’s express consent or anonymise the records, data may be disclosed without consent. The case of R v Department of Health ex parte Source Informatics Ltd[20] makes clear that it is not a breach of confidence to disclose anonymised patient information. In order that patients would understand the purpose for which information about them is to be disclosed, the DoH guidance states:

All NHS bodies must have an active policy for informing patients of the kind of research purposes for which information about them is collected and the categories of people or organisations to which information may need to be passed.[21]

A doctor may also not incur liability or face disciplinary action for disclosing clinical records for administrative or financial audit purposes, according to the GMC guidance. The guidance requires that financial or other administrative data be recorded separately from clinical information and provided in anonymised form, wherever that is possible. This is clearly in line with the decision of the European Court of Human Rights in MS v Sweden[22] , where it was held that disclosure to monitor proper use of public funds was necessary for the ‘economic well-being of the country’. Furthermore, section 98 of the National Health Service Act 1977 enables financial auditors to access patient information. Disclosure of patient information for purposes, such as financial audit purpose can be said to be something that is done with the patient’s implied consent. This is because, as stated above, without access to patient information by certain third parties, medical practice or hospital cannot operate efficiently.

Disclosure of genetic information may also be justified in the public interest. The justification lies in the fact that personal genetic information may be relevant to the health of a family member. According to the British Medical Association (BMA), much as the general principles of confidentiality apply equally to genetic information, genetic testing of one individual has relevance for other family members. It is not clear as to the level of confidentiality required for genetic information. However, the view of the BMA is that, with regard to genetic information, the doctor’s duty of confidentiality should only be breached when there is a legal requirement or an overriding public interest.

Apparently, a doctor owes no duty of confidentiality where the patient is a child, that is, someone who is incompetent to make a medical decision. Usually, a child under the age of 16 does not have the right to autonomy. A doctor will therefore be justified in disclosing information about such a patient to his/her parents. However, where a child is under the age 16 but is found to be mentally competent, he/she can prevent disclosure of personal information. The fact that a competent child who is able to understand the nature of the application for access to medical records is entitled to prevent their records being disclosed to parents is endorsed by the Data Protection (Subject Access Modification) (Health) Order 2000.[23] The burden is on the doctor to ‘justify excepting the duty of confidence’.[24]

Conclusion
It is clear from the above discussion that in certain situations, a doctor can depart from the duty of confidentiality. In other words, he will be justified in disclosing information about patient without the patient’s express consent. From the patient’s point of view, departure from the duty of confidentiality constitutes a breach of the principles of morality and fair dealing on which the duty is based. Clearly, the fact that information about a patient can be revealed to third parties without the patient’s express consent can discourage many people from giving doctors and other health care professionals adequate or correct information about their condition with the consequence that good care may be rendered impossible. It is argued that breach of confidentiality does not only harm the individual concerned but is also capable of affecting ‘the general public’s willingness to trust medical professionals and this can harm the health of the nation’.[25]

On the hand, although breach of confidentiality is defensible in certain situations, the restrictions imposed on disclosure of information, particularly by statutes, put more pressure on the decisions of the individual practitioner. For example, not only does the Data Protection Act 1998 gives the patient the right of access to their health records but it also enables the patient to discover if their data is being processed. It is argued that the ‘individualistic legal approach to medical confidentiality is too narrow to reflect the complex situations that exist in health care settings’.[26] It is further argued that confidentiality between patient and doctor should be a thing of the past; instead, the focus should be on protection of records and how to safeguard against the use of medical data for improper purposes.[27] The fact that the Human Rights Act 1998 enables persons to bring actions against public authorities for failing to uphold a person’s right to respect for private and family life also means that there will be more litigation where patients claim that confidentiality has not been respected.


References
[1] See for example, Kennedy, I. and Grubb, A. (2000) Medical Law, London: Buttherworths, p 1047 for the full statement.
[2] General Medical Council Confidentiality: Protecting and Providing Information (2000)
[3] Confidentiality: NHS Code of Practice. November, 2003
[4] World Medical Association: International Code of Ethics, 14. 10.2006
[5] [1988] 2 All ER 477
[6] [2004] UKHL 22
[7] (2001) 185 ALR 1
[8] See for example, Re C [1996] 1 FCR 605
[9] [2003] Lloyd’s Rep Med 90 QB
[10] [1984] 2 All ER 417
[11] [1988] 3 All ER 545
[12] [1990] 1 All ER 835
[13] General Medical Council Confidentiality: Protecting and Providing Information (2000)
[14] General Medical Council Serious Communicable Diseases (1997)
[15] See Bingham LJ’s judgment, para 853
[16] [1988] 2 All ER 648
[17] Department of Health The Protection and Use of Patient Information (1996)
[18] Ibid. n 13
[19] [1995] 1 Cr App rep 431
[20] (1999) 52 BMRL 65
[21] Ibid. n 17
[22] (1997) 45 BMLR 133
[23] SI 2000/413, article 5
[24] Ngwanga, C. and Chadwick, R. ‘Genetic Information and the Duty of Confidentiality: Ethics and the Law’ (1993) 1 Med Law Int 73
[25] Hall, M. ‘Law, Medicine and Trust’ Stanford Law Review, 2002, 55:463
[26] Gilbar, Roy, Medical Confidentiality with the family the Doctor’s Duty Considered, Int. J.L.P.F. 2004 18(2), 195-213
[27] See for example, Gostin, L. ‘Health Information Privacy’ Cornell Law Review 1995, 80:451

Bibliography
Herring, J. (2008) medical Law and Ethics, Oxford: Oxford University Press
Kennedy, I. and Grubb, A. (2000) Medical Law, London: Butterworths
Mason, J.K. and Laurie, G.T. (2006) Mason & McCall Smith’s Law and Medical Ethics, Oxford: Oxford University Press
Gilbar, R. ‘Medical Confidentiality with the family the Doctor’s Duty Considered’, Int. J.L.P.F. 2004 18(2), 195-213
Hall, M. ‘Law, Medicine and Trust’ Stanford Law Review, 2002, 55:463
Gostin, L. ‘Health Information Privacy’ Cornell Law Review 1995, 80:451

TERMINALLY ILL PATIENT’S RIGHT TO SELF-DETERMINATION.

Health care professionals are usually faced with the question whether it is lawful to administer treatment to a terminally ill patient or withdraw treatment at the request of such a patient. Once a patient can be said to be mentally competent, he has the right to decide what may or may not be done with his body (see for example, the House of Lords’ decision in Chester v Afshar [2005] 1 Ac 134).

A mentally competent patient who seeks to exercise the right to die should be allowed to do so. The fact that a mentally competent patient has the right to decide whether to consent to treatment or refuse treatment was emphasised in Re T (Adult: Refusal to Treatment)[1992] 4 All ER. The case clearly suggests that even where refusal will lead to death the patient must still be allowed to exercise the right to refuse treatment. In essence, it is not for the medical practitioners to consider the rationality of the patient’s decision to refuse treatment. It is enough if the patient’s refusal to undergo medical treatment is free and informed. In Re B (Adult: refusal of Medical Treatment) [2002] 2 FCR 1, doctors’ attempt to stop a patient from refusing treatment was condemned by the court. The doctors had the view that the patient still had a valuable life and therefore were not happy about her decision to refuse treatment. She was paralysed from neck down and had to depend on a ventilator for her life. The doctors did not question the patient’s mental competence. They were simply not willing to perform in accordance with her wishes. The court said it was irrelevant whether the patient’s decision was contrary to her best interests. According to the court, as someone who knew of the alternative options, her request to have the ventilator switched off should be respected by the doctors.

It is settled law that if, at the specific request of the patient, a doctor withdraws a life support machine from the patient he will incur no criminal liability as such conduct does not amount to assisted suicide or murder. This principle was established in Airedale National Trust v Bland [1993] 789. Essentially, what emerged from that case is that a doctor will be liable in battery if he administers treatment which involves any invasive procedure. The doctor can only escape liability if such treatment was administered by the authority of the patient or other lawful authority. Once there is no longer justification for invasive treatment, such treatment must be withdrawn otherwise the doctor will be liable in battery. Furthermore, continuing treatment will be unlawful if a doctor is asked by a patient to withdraw treatment or switch off a ventilator. It is unlawful for a doctor to act to hasten the death of a terminally patient. Thus, regardless of the gravity of the patient’s suffering, a doctor will incur criminal liability if he engages in what is called “voluntary euthanasia”. Section 2(1) of the Suicide Act 1961 makes it an offence for a person to assist another person to commit suicide.

The issue of whether a person has a right to be permitted to be killed or helped to commit suicide was determined in R (Pretty) v DPP[2002] 1 AC 800. Mrs Pretty was suffering from motor neuron disease. She wanted the Director of Public Prosecution to declare that if her husband helped her to commit suicide he would not be prosecuted for assisting a suicide. The DPP refused and Mrs Pretty challenged his decision in the court and the case went to the House of Lords and then to the European Court of Human Rights, where she claimed that English law in this area failed to adequately protect her human rights. The House of Lords held that the decision not to promise immunity to Mr Pretty should he help his wife to die was not, in the circumstances, amenable to judicial review. Mrs Pretty argued that a blanket prohibition on assisted suicide contravened Articles 2, 3, 8, 9 and 14 of the European Convention in Human Rights. This argument was rejected by their Lordships who concluded that Article 2 was intended to protect the sanctity of life. In the European Court of Justice it was also stated that there was no right under the European Convention on Human Rights to be killed or helped to commit suicide. The right to life under Article 2 indicated that the State had an obligation to protect life.

There is no such thing as self-determination when a terminally ill person is mentally incompetent. Doctors are expected to consider what treatment is in the best interest of such a patient. The case of F v West Berkshire Health Authority [1989] 2 All ER 545 illustrates this principle which was applied in the Bland case. The patient, Tony Bland, had been in a coma for over three years and was in a persistent vegetative state (PVS). His medical team, which received the support of his family, went to court to seek declaration that it would be lawful to switch off his life-support machine and to cease providing nutrition and hydration. It was held that since Bland was still alive, withdrawing treatment would not constitute an act but an omission. However, the omission would not breach the duty the doctors owed to Bland. This was because they were only required to provide treatment which was in the best interest of the patient. A body of medical opinion supported withdrawing artificial nutrition and hydration from a patient confirmed in PVS. Therefore, withdrawing treatment was lawful.

Their Lordships made it clear in the Bland case that their decision was restricted to patients in PVS. They added that doctors must not withdraw artificial nutrition and hydration from such a patient unless there was evidence to show, among other things, that diagnosis of irretrievable PVS has been agreed by two independent doctors. Doctors should also seek declaration from the court before discontinuing treatment. Their Lordships’ decision in the case further suggests that in determining such cases the court will have regard to the views of the patient’s immediate family.

Diagnosis of irretrievable PVS must be agreed by two independent doctors before treatment is discontinued. This requirement was apparently not satisfied in Frenchay Health Care Trust v S [1994] 2 All ER 403. However, a declaration was granted that the hospital could lawfully refrain from re-inserting the tube, which was unintentionally removed, to feed the patient. According to the Court, in the emergency that had arisen as a result of the removal of the tube, there was no benefit conferred on the patient by re-inserting the tube. Also, in Re D (Medical Treatment) [1998] FLR 411, the patient had suffered serious brain damage after a road accident. Her feeding tube became disconnected. The Judge was satisfied that there was ‘no evidence of any meaningful life whatsoever’ and held that it was lawful to refrain from re-inserting the tube. The fact that D’s condition did not fully conform to guidelines laid down by the Royal College of Physicians for the diagnoses of PVS was accepted by the judge yet he granted the declaration sought.

Another case in which the patient’s condition did not fully conformed to the Royal College of Physicians guidelines for the diagnosis of PVS but cessation of artificial feeding was authorised is Re H (A Patient) [1998] 2 FLR 36. The patient, H, was a forty-three year old woman who had suffered brain injuries in a car crash. She retained some rudimentary awareness. It was held that it was lawful to discontinue treatment as this was in the best interests of the patient.

It is worth mentioning that in the Bland, S, D and H cases discussed above, the doctors’ decision to discontinue treatment received the support of the patient’s family. Had there been a difference of opinion among the patient’s family, the court’s ruling would have favoured what was considered to be in the patient’s best interests. In Re G (Persistent Vegetative State) [1995] 2 FCR 46, the wife of the patient, who was in PVS, supported the application to withdraw artificial feeding from the patient. The patient’s mother opposed the application. The court rejected the mother’s view on the basis that it was contrary to what was considered to be in the best interests of the patient.

A patient’s right to self-determination does not mean he can instruct his doctors to administer a particular kind of treatment. The recent case of R (Burke) v GMC [2005] 3 FCR 169 attests to this fact. The patient suffered from cerebella ataxia. It was predicted that he would at some point in the future need to be given artificial nutrition and hydration to be kept alive. He was concerned that if he became incompetent, these might be withdrawn and he would die. He sought an order prohibiting the withdrawal of any nutrition and hydration. The court held that a patient had no right to demand a particular kind of treatment either when he is competent or incompetent.

If a terminally ill patient made an advance decision before losing capacity, her wishes in the advance decision regarding treatment would be complied with. Section 25 of the Mental Capacity Act 2005 provides that the directive has to be in writing, signed and witnessed. However, a patient cannot use an advance decision to demand life-shortening treatment to be given.

In conclusion, whether a patient in the dying process will be allowed to exercise the right to self-determination depends on his mental capacity. If the patient is mentally competent, he can decide whether to receive or refuse treatment. If he is incompetent, his wishes, which are clearly stated in his advance decision, must be complied with. In the absence of any advance decision, health care professionals should do what is considered to be in the patient’s best interests. Accordingly, it is correct to assert that the law recognises patient self-determination in the dying process only to some extent.

Bibliography
Brazier, M., (2003), Medicine, Patients and the Law. London: Penguin
Davies, M., (1998), Textbook on Medical Law. Oxford: Oxford University Press
Jackson, E (2006) Medical Law: Text cases and Materials, Oxford: Oxford University Press
Kennedy, I., Grubb, A., (2000), Medical Law: Test and Materials. London: LexisNexis
Stauch, M. et al (2006) Text Cases and Materials on Medical Law, London: Cavendish

Distinction between Resulting and Constructive Trusts in the Context of Claims for a Beneficial interest in land under an Implied Trust

Where two persons acquire property but only one of them is registered as the legal owner of the property, the other person may seek to acquire a beneficial interest in the property. Such an interest may be acquired under a resulting trust or a constructive trust. This raises the question as to whether there is a distinction between resulting and constructive trusts. The law does not draw a clear line between resulting and constructive trusts. Nevertheless, under an implied trust, resulting and constructing trusts appear to be fundamentally different, operating on different principles. Recent case law also illustrates that the distinction between resulting and constructive trusts is important when it comes to determining: (i) the nature of the contributions that can give rise to the trust; and (ii) the approach to be adopted by the court in determining the size of each party’s share in the property.

A resulting trust arises where the property is held on trust to give effect to the parties’ respective contribution to its purchase price. Thus where, for example, a woman makes a voluntary payment to her husband, or pays wholly or in part, for the purchase of the property which is vested in the husband alone, the property will be held on trust for the woman if she is the sole provider of the money. In the case of a joint purchase by the woman and the husband, the parties will be entitled to shares proportionate to their contributions, unless it can be established that the woman’s money was a gift. A constructive trust, on the other hand, arises where the property is held on trust to give effect to the agreement reached between the parties. As was held in Lloyds Bank v Rosset [1991] 1 AC 107, the agreement can be any agreement, arrangement or understanding reached between the parties that the property is to be shared beneficially.

Usually, it is the circumstances of a given case that determines whether one of the above-mentioned forms of trust is preferable to the other in the context of claims for beneficial interest in land. It must be emphasized that it is not for the claimant to choose whether they want to acquire a beneficial interest in the property under a resulting trust or a constructive trust. The Lloyds Bank v Rosset case illustrates that in determining whether the party asserting a claim has acquired a beneficial interest in the property, an inference will first be drawn from the conduct of the parties in the course of sharing the house as their home and managing their joint affairs. Essentially, express discussions between the parties about the property will constitute evidence of agreement, arrangement or understanding between the parties that the property is to be shared beneficially. There is therefore what can be described as ‘common intention’ constructive trust. In the case of Killey v Clough [1996] NPC 38, from example, a common intention constructive trust arose as the court held that there had been a common intention that the property would be shared ‘fifty-fifty’. In the absence of common intention or express agreement, the court will consider whether any inference could be drawn from the parties’ conduct regarding the sharing of the property. The finding of direct contributions to the purchase price made by the claimant, whether initially or by payment of mortgage installments, will lead to the conclusion that the claimant has acquired a beneficial interest in the property under a constructive trust.

The quantifying of beneficial interests arguably makes one form of trust preferable to the other. In the case of a resulting trust, there is rarely any difficulty in quantifying beneficial interests. The claimant’s share would be proportionate to the amount he/she contributed to the purchase price. It is clear from Curley v Parks [2005] 1 P&CR DG 15 that the only contributions which can be relied upon to establish a resulting trust are those made at the time the property was purchased or acquired. Thus later contributions, such as paying installment due under the mortgage, do not create a resulting trust in favour of the party making the payments. In the case of a constructive trust, however, the claimant may acquire a share which is not necessarily proportionate to their financial contributions. This means that payment of mortgage installments and other contributions, which are not relevant in establishing a resulting trust, can be relied upon in establishing a constructive trust.

The court’s decision in Drake v Whipp (1995) 28 HLR 531 clearly indicates that in the case of a constructive trust, all that is required is that there should be a common intention that the party who is not the legal owner should have a beneficial interest and that that party should act to her detriment. In that case, the plaintiff and the defendant cohabited after leaving their respective spouses. They purchased a barn, each contributing, on the common understanding that they were to share beneficially, although the property was taken in the sole name of the defendant. It was found that there was a common intention of the parties as to their beneficial shares, but the only direct evidence in support of that finding was the defendant's evidence as to his own intention. The claimant argued that the shares in the property should not be decided on the basis of a resulting trust as that required only that costs of acquisition be taken into account, not the costs of conversion, and operated on the basis of presumed, rather than actual, intention. The court said that the facts gave rise to the creation of a constructive trust since there was undisputed evidence of a common intention that the claimant should have a beneficial interest in the property and she had acted to her detriment. Accordingly, the claimant’s fair share was one third.

In Midland Bank plc v Cooke [1995] 4 All ER 562 , it was emphasized that the court should undertake a survey of the whole course of dealing between the parties relevant to their ownership and occupation of the property and their sharing of its burdens and advantages and should take into account all conduct which throws light on the question of what shares were intended. Also, in Oxley v Hiscock [2005] Fam 211, a case which involved an unmarried couple and their family home, it was stated that positive evidence that the parties neither discussed nor intended any agreement as to the proportions of their beneficial interest does not preclude the court, on general equitable principles, from inferring one.

It is clear from above that apart from the fact that distinction between resulting and constructive trusts is of crucial importance, constructive trust is preferable to resulting trust in the context of claims for a beneficial interest in land under an implied trust. Unlike the rules governing resulting trust, the flexible nature of the rules governing constructive trust enables claimants to acquire a fair share in property of which they are not the legal owner. However, the House of Lords’ decision in the recent case of Stack v Dowden [2007] 2 AC 432 makes it clear that the focus is not on the court imposing its own sense of fairness or justice on the parties, nor should the court be engaged in seeking to identify an imputed common intention. According to their Lordships, compelling evidence is required before a court could infer that, subsequent to the acquisition of the home, the parties intended a change in the shares in which the beneficial ownership was held.

Bibliography
Bray, J (2007) Unlocking Land Law, London: Hodder Arnold
Chappelle, D (2007) Land Law: Foundation Studies in Law Series, Harrow: Longman
Dixon, M, (2005) Modern Land Law, London: Cavendish
Mackenzie, J and Phillips, M (2006) Textbook on Land Law, Oxford: Oxford University Press
Sexton, R. (2006) Land Law Textbook, Oxford: Oxford University Press
Thompson, M. P. (2006) Modern Land Law’ Oxford: Oxford University Press