Les liens d'affection au sein de la relation de soins comme limite à l'incapacité de recevoir à titre gratuit des médecins (Civ. 1re, 15 janvier 2014, no 12-22.950)

As underlines it Professor Louis Portes, the medical act consists in “a confidence [that of the patient] which joins freely a consciousness [that of the doctor]”. But sometimes, the gap between confidence and dependence is delicate. Consequently, the medical relation can be the favorable ground for the abuse of the situation of weakness, in particular when the patient faces his last disease. Presuming the extreme vulnerability of the sick person, the legislator forbids him to present the people having lavished on him the last care. This double incapacity, to use for the patient, and to receive for the doctor, bases on the fear of inveiglement of the sick person's properties at the end of life. But this fraud's assumption seems to overturn when the medical professional appears not as a doctor but more as a friend for the sick person. It is in particular in support of “old and deep emotional links” existing between a doctor and his patient, that the judges, in a decision of January 15th, 2014, in a surprising way, evict the incapacity for enjoyment planned in the article 909 of the Civil code.