The treatment contract, also known as the physician’s contract, forms the core of the treatment relationship between doctor and patient, especially in the case of treatment by a private doctor, even if the doctor is working as an affiliated doctor at a (public) healthcare facility. According to the prevailing doctrine and jurisprudence, the treatment contract is considered to be a simple mandate within the meaning of Art. 394 et seq. of the Swiss Code of Obligations (CO).

Formation of the contract: The contract is formed by concurrent declaration of intent by the parties (Art. 1 para. 1 CO). Often, the treatment contract arises solely from the implied conduct of the parties. For example, if a private physician publicly announces that he will receive patients in his office, this constitutes a real offer. This is accepted by the patient by signing up for a consultation (an act of ‘real’ acceptance). Special provisions apply if the patient is incapacitated or if the treatment contract is concluded by a person who has capacity but is immature or incapacitated.

Termination of the contract: According to Art. 404 CO, the contract may be revoked or terminated by the physician and the patient at any time, including the physician’s healing mandate. However, untimely termination is inadmissible, which means that a party may not terminate the mandate at an inopportune moment and without factual justification.

Faulty conclusion: As with other legal transactions, the treatment contract can also be faulty. The contract may have an impossible, unlawful or immoral content (Art. 20 in conjunction with 394 CO). In such cases, if the contract cannot be upheld by assuming mere partial invalidity, the invalidity usually has an effect back to the time of the conclusion of the contract. The contract therefore lapses ex tunc. Particular difficulties arise in such a situation when it must be assumed that with the ‘ex tunc’ lapsing of the contract the patient’s consent has never occured. If so, any interventions by the physician may be considered unlawful, which can have significant implications on questions of liability.