As an alternative to the tort or fault-based system, a no-fault compensation system has been viewed as having the potential to overcome problems inherent in the tort system by providing fair, speedy and adequate compensation for medically injured victims. Proponents of the suggested no-fault compensation system have argued that this system is more efficient in terms of time and money, as well as in making the circumstances in which compensation is paid, much clearer. However, the arguments against no-fault compensation systems are mainly on issues of funding difficulties, accountability and deterrence, particularly, once fault is taken out of the equation. Nonetheless, the no-fault compensation system has been successfully implemented in various countries but, at the same time, rejected in some others, as not being implementable. In the present trend, the no-fault system seems to fit the needs of society by offering greater access to justice for medically injured victims and providing a clearer "road map" towards obtaining suitable redress. This paper aims at providing the readers with an overview of the characteristics of the no fault compensation system and some examples of countries that have implemented it.
The ease and affordability of international travel has contributed to the rapid growth of the healthcare industry where people from all around the world are traveling to other countries to obtain medical, dental, and surgical care while at the same time touring, vacationing and fully experiencing the attractions of the countries that they are visiting. A combination of many factors has led to the recent increase in popularity of medical tourism such as exorbitant costs of healthcare in industrialized nations, favorable currency exchange rates in the global economy, rapidly improving technology in many countries of the world and most importantly proven safety of healthcare in selected foreign nations. Nevertheless, the development of medical tourism has certainly awakened many ethical and legal issues, which must be addressed. Issues pertaining to malpractice, consumer protection, organ trafficking, alternative medicine and telemedicine need comprehensive legal regulatory framework to govern them. Ethical issues are also been raised by the promotion of medical tourism in particular those pertaining to doctor and patient relationship. A future, where medical law is subsumed into various legal and ethical dimensions, poses serious challenges for the practice and ethics of medicine.
The decision of the Federal Court of Malaysia in abandoning the Bolam principle in relation to doctor's duty to disclose risks has clearly marked the decline of judicial deference to medical opinion in medical negligence litigation in Malaysia. It is undeniable that the Bolam principle has acted as a gatekeeper to the number of claims against medical practitioners. This has always been seen as necessary to protect the society from unwanted effects of defensive medicine. However, will these changes contribute significantly to the growth of medical negligence cases in Malaysia? This article will trace the development of the Bolam principle in medical negligence litigation in Malaysia since 1965 and analyse the influence of selected Commonwealth cases on the development. The implications of the Federal Court ruling will also be discussed.
One of the most important ironies of modern health care is that public expectations are rising faster than the ability of health services to meet them. Patients nowadays no longer want to be treated as passive recipients of medical care but as co-producers or partners able to manage their illnesses. Thus, it is not surprising that poor communication and failure to take into account the patient's perspective are at the heart of most formal complaints and legal actions in Malaysia. The difficulties of existing complaint procedures in Malaysia have become manifest over the years and this has been accentuated by patients becoming more willing to challenge the decisions of medical practitioners and health service management in court. To reduce the number of complaints and risks of litigation, a more patient-centred approach should be adopted. When patients voice their concern by making a complaint or inquiry, this should be seen as a unique source of information for health care services on why adverse events occur and how to prevent them. As well as reducing future harm to patients, better management of complaints should restore trust and reduce the risk of litigation, through open communication and a commitment to learn from the problem. The existing procedures for patients to be heard in Malaysia should be reviewed and incorporate features such as responsiveness, accessibility, impartiality, simplicity, speed and accountability.
Organ transplantation has become increasingly routine as a means of saving and improving the quality of lives of thousands of people each year. However, transplant activity is increasingly constrained by the shortage of organs. The major impediment in procuring organs for transplant in Malaysia is the lack of cadaveric donors. The lack of cadaveric donors has encouraged patients to go to countries like India and China to purchase organs especially kidneys for transplantation. The inadequacies of the existing Malaysian Human Tissues Act 1974 has also contributed to this problem. For instance, the word 'tissue" is not defined under the Act. This raises complex and ethical questions as to the scope of the definition for "tissue". There is also no definition of "the person lawfully in possession of the body." This is significant as he is the person who is empowered by the Act to authorise removal of tissue. Further, there is also no articulation of a hierarchy of relatives who are deemed the next of kin. In a situation involving a large number of relatives, asserting different opinions, this may pose a problem. The articulation of a priority list is particularly difficult in Malaysia as it is a multi-cultural society where the hierarchy of relatives with the right to claim decision-making powers may vary in different cultures. Furthermore, there is also a pressing need for a legislation to ensure that the rights of potential live donors are protected. At the moment, the Human Tissues Act 1974 only relates to cadaveric donors whereas live donors fall within the purview of the common law. The system of "opting out" should be considered in Malaysia whereby every individual is presumed to be a donor unless he or she registers an objection. But this system can only be fair if every person in the community is given notice of the law and understands its implications. For the system to work, there must also exist a simple and effective way of registering objections. There is a need for continuous intensive public education and counselling. A nationally co-ordinated mechanism must be in place to ensure effectiveness of identifying potential donors and recipients.
Religion and spirituality have always played a major and intervening role in a person's life and health matters. With the influential development of patient autonomy and the right to self-determination, a patient's religious affiliation constitutes a key component in medical decision making. This is particularly pertinent in issues involving end-of-life decisions such as withdrawing and withholding treatment, medical futility, nutritional feeding and do-not-resuscitate orders. These issues affect not only the patient's values and beliefs, but also the family unit and members of the medical profession. The law also plays an intervening role in resolving conflicts between the sanctity of life and quality of life that are very much pronounced in this aspect of healthcare. Thus, the medical profession in dealing with the inherent ethical and legal dilemmas needs to be sensitive not only to patients' varying religious beliefs and cultural values, but also to the developing legal and ethical standards as well. There is a need for the medical profession to be guided on the ethical obligations, legal demands and religious expectations prior to handling difficult end-of-life decisions. The development of comprehensive ethical codes in congruence with developing legal standards may offer clear guidance to the medical profession in making sound medical decisions.
The permissibility and lawfulness of withdrawing and withholding medical treatment has attracted considerable debates and criticisms, as the legal issues are drawn into entering the slippery slope of euthanasia. Proponents of "sanctity of life" views that withdrawing and withholding medical treatment with knowledge that death would result is still within the sphere of euthanasia, whereas proponents of "quality of life" argue that it is not, as death is not intended. Their arguments maintain that for patients who are totally dependant on machines to ensure the work of some bodily functions, living may amount to little more than survival as dying is prolonged. Furthermore, the prolonging of life of the dying patient has profound implications on patients themselves, their relatives, dependants and medical providers. Thus, withdrawing and withholding medical treatment would not only respect a patient's right to self-determination, by allowing them to die in their underlying condition, but will ensure that medical providers are able to concentrate on more worthwhile treatments. This paper discusses the intractable difficulties with the moral distinction between withholding and withdrawing treatment and euthanasia, as well as makes a comparative study between the present state of law in Malaysia and England on this issue. The paper further highlights the differences between civil law and Islamic law in this controversial area.
Possible duplicate publication in: Kassim PHJ, Adeniyi OB. Withdrawing and withholding medical treatment a comparative study between the Malaysian, English and Islamic law. The University of Ilorin Law Journal. 2009;5:42-56
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End-of-life decision-making is an area of medical practice in which ethical dilemmas and legal interventions have become increasingly prevalent. Decisions are no longer confined to clinical assessments; rather, they involve wider considerations such as a patient's religious and cultural beliefs, financial constraints, and the wishes and needs of family members. These decisions affect everyone concerned, including members of the community as a whole. Therefore it is imperative that clear ethical codes and legal standards are developed to help guide the medical profession on the best possible course of action for patients. This article considers the relevant ethical, codes and legal provisions in Malaysia governing certain aspects of end-of-life decision-making. It highlights the lack of judicial decisions in this area as well as the limitations with the Malaysian regulatory system. The article recommends the development of comprehensive ethical codes and legal standards to guide end-of-life decision-making in Malaysia.
The study seeks to explore the perception of international patients on Malaysia as a medical tourism destination country, as well as overall patient satisfaction, perceived value and future intention for repeat treatment and services.