Recognition and articulation of patient rights are core issues in the medical jurisprudence of most nations. While the nature of rights in medical care may vary from country to country, reflecting the idiosyncrasies of domestic law and health delivery, there are commonalities in this area of law that cut across borders. This paper presents five case studies in the patient rights area from Malaysia, Ireland, South Africa, Indonesia and the United States, respectively. The case discussions range from ongoing and fundamental concerns over broad patient rights issues, such as access to health care and informed consent, to rights concerns of those suffering from HIV/AIDS, to a novel consideration over ethical and legal issues concerning ownership of infant organs. It is the hope of the authors that individually, and collectively, the cases will provide helpful insights into this core area of medical law.
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
The doctrine of informed consent has the effect of allowing the mentally competent adult patient to exercise individual choice in any proposed medical treatment. The ethical principles primarily inherent in this doctrine would be the principles of autonomy and beneficence. However, it is argued in this essay that the concept and meaning of autonomy might be vastly different between western and eastern communities. Consequently the doctrine of informed consent will lead to a different meaning in these different societies. The essay also raises the implication of transplanting legal doctrines into societies which might not be fully prepared to implement the ideal contained in the doctrine of informed consent.
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.
When instances of fraud in biomedical publishing come to light there is widespread indignation, not least because the consequences seem usually only to be internal enquiries and professional displeasure. A number of bodies have been constituted to improve publishing ethics and but these are largely advisory. Potentially though, actions in the tort of deceit and negligence, possibly misfeasance in a public office, and loss of chance could be brought against those responsible. These aspects are examined in the context of English law. In addition the new Fraud Act (2006) appears to be wide enough in scope to cover publishing fraud as a criminal offence. Any organisation such as a drug company financing clinical trials which produce spurious results could face serious losses and might well look to remedies in contract as well as in tort. A theoretical scenario centered on a drug trial is presented in order to explore these issues.
Three authors describe problematic scenarios of health policy in their respective countries. These examples illustrate the role of government influences in determining resource allocation, legislation, health provision and health outcomes in very different situations. These outcomes are affected not only by attitudes to public health, but also by the legal systems in the countries which are the subjects of this study. The authors draw conclusions about the use and abuse of public health regulation.
In western societies where the principle of autonomy is jealously guarded, perhaps active euthanasia is more often the focus of public concern and debates rather than any other forms of euthanasia. However due to the advance in technology and its corresponding ability in prolonging life, in Malaysia passive euthanasia presents more of a dilemma. For those concerned and involved with end of life decision-making, it is generally agreed that this is an area fraught with not only medical but legal and ethical issues. In Malaysia where the society is not homogenous but is multi-cultural and multi-religious, in addition to medical, legal and ethical issues, religious principles and cultural norms further impact and play significant roles in end of life decision-making. This paper seeks to identify the issues surrounding the practice of passive euthanasia in Malaysia. It will be shown that despite applicable legal provisions, current practice of the medical profession combined with religious and cultural values together affect decision-making which involves the withholding and/or withdrawing of life-saving treatment.
The focus of this paper will be on how health care systems in three countries, Malaysia, South Africa and the United States, are responding to the health needs of immigrants with a strong focus on the legal aspects of the respective national responses. The Malaysia portion emphasizes legal immigration and analyses as to how the country's Ministry of Health and the delivery system itself is responding to the demands of immigrant's health. In the context of South Africa, the paper explores implications of the South African Constitution, which establishes a right to access health care, and explores whether such a right can be extended to non-citizens, or can be tempered by economic constraints. In the American discussion the focus is on whether publicly supported health care programs can be accessed to provide coverage for undocumented residents, and highlights recent constraints in using government monies in this area.
Starting with the duty of Governments to provide adequate resources for the establishment and development of health services, this paper draws on experiences in four developed countries to illustrate the problems and their outcomes. The examples chosen demonstrate the contrast in philosophies and approach to resource allocation for health care.
The author reviews the legal theory and practice of the requirements for informed consent. He uses a discussion of relevant cases and judgements from courts in the UK, USA, Australia and Malaysia to illustrate apparently conflicting attitudes exemplified by these cases. From this he aims to form some consensus in their application to everyday practice.
This paper sets out the practice of traditional, alternative and/or complementary medicine in Malaysia. It gives an overview of the types of alternative medicine available, and the legal regulation, or lack of it within the current setting. The relevant policies and governmental action in this area are highlighted. Relevant case law decisions in this area are also included. The practice of spiritual healing as one form of traditional medicine, and its role within the spectrum of alternative medicine is dealt with briefly. The significant question of integration of alternative medicine within the existing allopathic system is addressed. The paper concludes that as interest in, and usage of alternative medicine is not likely to decrease, certain measures must be taken by the relevant authorities to ensure among others, the safety and efficacy of these medicines.
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.
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 subject of euthanasia has generated many controversial debates, particularly on its legality. This has been primarily due to the doctrine of sanctity of life which is a predominant principle in many religions and is embedded in moral values. The underlying precept is that human life is sacred and demands respect, as all life comes from God and life can only be taken away intentionally through due process of law. Thus, ending a person's life, even upon his or her request, is considered in many jurisdictions as a criminal offence. Irrespective of humanitarian motives, a doctor who aids a patient in this act will be in breach of his unequivocal duty as a doctor and considered to have committed an unlawful act, which will subject him to legal sanctions. Countries such as the United Kingdom, Australia, New Zealand and Turkey have explicit legal provisions banning, in particular, active euthanasia, while countries such as the Netherlands, Belgium, Switzerland and certain states in the U.S have taken positive steps to legalise euthanasia in certain aspects. The ethical codes and laws in Malaysia have yet to develop to the fullest extent in dealing with these issues. Although Malaysian statutory legislation contains provisions banning active euthanasia, the legal position on passive euthanasia remains implicit. In the absence of indicative legal provisions and judicial precedents governing certain matters arising, it has been the practice of the Malaysian courts to refer to relevant legal principles inherent in English cases. As Islam is proclaimed as the country's official religion, the Islamic perspective is also an important and influential factor in the development of the legal framework in Malaysia as a whole. Thus, there is a need for the existence of a clear and comprehensive regulatory framework governing the legality of euthanasia in Malaysia.