Doctors are placed in a position of trust and confidence when dealing with patients. The relationship between doctor to patient falls into a special category of relationships which are known as fiduciary. Doctors are considered fiduciaries and patients are considered beneficiaries. A doctor’s obligation to act in his/her patient’s best interests is understood as the most basic of all fiduciary obligations. In Canada, the doctor-patient relationship has long been recognized as one of the traditionally recognized categories of fiduciary relationships.
The recognized test for determining whether a fiduciary duty exists is:
- The fiduciary (doctor) has scope for the exercise of some discretion of power over the beneficiary (patient)
- The fiduciary (doctor) can unilaterally exercise a power or discretion so as to affect the beneficiary’s (patient) legal or practical interests
- The beneficiary (patient) is vulnerable to or at the mercy of the fiduciary (doctor) holding the discretion of power
Through a number of cases to date, the Supreme Court of Canada has established the nature and scope of the fiduciary relationship between doctor and patient. In the landmark case of Norberg v, Wynrib  2 SCR 226, the court stated:
“The relationship of physician and patient can be conceptualized in a variety of ways. It can be viewed as a creature of contract, with the physician’s failure to fulfil his or her obligations giving rise to an action for breach of contract. It undoubtedly gives rise to a duty of care, the breach of which constitutes the tort of negligence. In common with all members of society, the doctor owes the patient a duty not to touch him or her without his or her consent; if the doctor breaches this duty he or she will have committed the tort of battery. But perhaps the most fundamental characteristic of the doctor–patient relationship is its fiduciary nature. All the authorities agree that the relationship of physician to patient also falls into that special category of relationships which the law calls fiduciary.
…I think it is readily apparent that the doctor-patient relationship shares the peculiar hallmark of the fiduciary relationship – trust, the trust of a person with inferior power that another person who has assumed superior power and responsibility will exercise that power for his or her good and only for his or her good and in his or her best interests. Recognizing the fiduciary nature of the doctor-patient relationship provides the law with an analytic model by which physicians can be held to the high standards of dealing with their patients which the trust accorded them requires…”
In order to successfully prove a breach of fiduciary duty, there must be an element of exploitation of the patient by the doctor. In other words, there must be an abuse of power.
Abuse of power was found to be a breach of fiduciary duty in Norberg v, Wynrib  2 SCR 226, In this case, the male doctor was aware of his female patient’s drug addition. Knowing this, he prescribed her painkillers in exchange for sexual favours. The Supreme Court of Canada concluded that the doctor breached his fiduciary duty to his patient by not only violating her sexually, but also by actively contributing and prolonging her drug addiction.
On the other hand in W.(S.) v. Dore  OJ No.737, the family doctor diagnosed his female patient with multiple personality disorder and provided her with psychotherapy. He also continued to treat the patient’s other medical complaints including pain to which he prescribed more aggressive medications and doses for pain relief. The patient brought an action against the doctor for damages allegedly resulting from the doctor’s negligent diagnosis and treatment of her psychiatric condition and the doctor’s over-prescribing of addictive medication. The court concluded that the facts in this case were different than in Norberg in that the doctor was found not to have abused his power and not to have placed his own interests above his patient’s interests: