For the patient, where does the buck stop?

The word “fiduciary” did not begin in medicine. It began in law.

For centuries, lawyers have refined a doctrine that is now woven through corporate governance, trust administration, securities regulation and pension oversight.

A fiduciary acts solely in the interest of the beneficiary. The duty is loyalty, prudence and full disclosure.

Implicit in all of these is the duty of competence and the requirement that the beneficiary’s interest comes before the fiduciary’s own. Where the duty is breached, courts intervene.

The doctrine is not aspirational. It is enforceable.

Health care has borrowed the word, but not always the discipline.

At the bedside, fiduciary obligation is rarely in doubt. The clinician acts in the interest of the patient. That obligation is reinforced by professional regulation, malpractice law, college discipline and a culture trained over generations to recognize the patient as the person to whom duty is owed.

At the level of governance, the picture is less clear.

Manitoba’s tertiary cardiac service operates within a layered structure.

The provincial government sets policy and funding parameters. Shared Health holds provincewide service responsibilities. The Winnipeg Regional Health Authority oversees regional, not provincial, delivery. St. Boniface Hospital provides the specialized infrastructure and clinical expertise.

Each of these bodies has its own board, its own bylaws, its own legal counsel and its own leadership. Each is governed by agreements that lawyers have drafted, reviewed and approved.

The boards and the leaders they appoint owe their duties to the institutions they govern. No instrument in this architecture names the patient as the beneficiary to whom the duty is owed.

The Winnipeg Regional Health Authority’s accountability agreement, in the schedules now in the public domain, is instructive. It treats cardiac surgery as a volume target.

It specifies how many cases will be performed. It does not specify the programmatic features that produce safe and timely care. It does not assign governance responsibility for outcomes. It does not name the patient as the beneficiary of the obligations the agreement creates.

It measures throughput rather than value, which is the standard contemporary health systems are expected to meet.

Volume is not the same as outcome. An agreement that measures one and not the other has not, in fiduciary terms, been completed.

This is not a criticism of any individual lawyer. It is an observation about the legal architecture that has been allowed to develop.

Hospital boards, regional authorities and provincial agencies have all received competent legal advice. The agreements they signed were lawful. The bylaws they adopted were properly enacted.

The question is whether the resulting framework, taken as a whole, meets the fiduciary standard that the legal profession itself originated.

A second observation deepens the question. Each of these institutions designates a medical director, a clinical leader formally charged with responsibility for the quality and integrity of the program.

On paper, that authority is real. In practice, decisions about staffing, capacity, scheduling and resource allocation are routinely made elsewhere, often without the medical director’s effective participation and sometimes against the medical director’s clinical advice.

The instruments that would make a medical director’s clinical authority operative, the levers that determine appointment, advancement, performance review, scheduling of clinical and academic time and the conduct of the physicians who deliver the care, do not sit with the medical director.

They sit with separate institutions whose primary mission is something other than the clinical fiduciary obligation to the patient.

When the levers required to discharge a duty sit with parties whose duty runs elsewhere, two things follow.

The first is that responsibility for outcomes becomes diffuse, because the person designated to be responsible no longer holds the levers required to discharge the duty.

The second is that the structure ceases to function as a fiduciary arrangement, because the beneficiary, the patient, is no longer protected by a clear chain of obligation running from the bedside to the board.

A lawyer would recognize this immediately in any other domain.

A trustee, the person legally bound to act for a beneficiary, whose discretion is routinely overridden by parties without fiduciary obligation to the beneficiary, is not a trustee. A corporate director stripped of authority over the matters for which the director is legally accountable is in an untenable position.

In those domains, breach attracts consequence. In governance of clinical services, it has not.

The same tools have not yet been brought to health system governance with the same rigour.

There is no shortage of legal expertise in the Manitoba health system. There is counsel to Shared Health, the regional authorities, the hospitals, the university, the regulatory colleges, the Department of Health and Seniors Care and the unions and professional associations whose members deliver the care.

Each acts properly within their retainer. The question is not whether each individual relationship is well served. It is whether anyone has been retained to ask, on behalf of the patient, whether the architecture as a whole satisfies the fiduciary standard owed to the patient as the core duty-holder.

That question has not been formally posed.

Bill 27, the Declaration of Principles for Patient Health Care Act, now before the Manitoba legislature, proposes a Patient Safety Charter and an Office of Patient Advocacy. The instinct is the right one. The four principles, safe care, timely access, care based on need and care delivered with respect for patient experience, are unobjectionable.

But principles guiding government decisions are not the same as duties owed to a beneficiary. A “complaints office” is not a trustee. The Charter, if enacted, would be a welcome statement of values. It would not, by itself, supply the doctrinal element that is missing. A patient as beneficiary, named in the instruments that govern the institutions, with a clear chain of obligation running from the bedside to the board, would.

Posing the foundational question would not require new law. It would require applying the discipline lawyers already exercise daily in commercial, trust and corporate matters to the governance of clinical services, where the stakes are highest and the beneficiary is least represented.

This is work in the legal profession’s own wheelhouse. The question of whether a medical director’s authority is real or nominal and of whether the levers required to make it operative are held by parties bound to the patient or by parties bound elsewhere, is the kind of question a corporate lawyer would resolve in an afternoon for a private client.

A patient, by contrast, has no such lawyer. The patient relies on the structure to do that work in advance.

When the structure does not, the patient absorbs the consequence. So does the family. So, quietly, do the clinicians who entered the profession to do better than this.

Structures exist on paper. Patients experience care in real time.

The lawyers who helped build the doctrine of fiduciary duty are not the cause of the gap. But they are uniquely placed to close it. The question that has not yet been asked of them and which now needs to be asked, is whether the legal architecture of Manitoba’s health governance can withstand the standard their own profession would apply anywhere else.

It is a fair question. It is owed an answer.

Alan H. Menkis, MD, writes from Winnipeg.