A Conversation between Medicine and Law PROF DR PUTERI NEMIE JAHN KASSIM CIVIL LAW DEPARTMENT, AHMAD IBRAHIM KULLIYYAH OF LAWS, INTERNATIONAL ISLAMIC UNIVERSITY MALAYSIA! Intervention of Law into Medical Practice creates a host of legal and ethical dilemmas e.g. Beneficence ver sus Autonomy! Not possible for all moral duties to be legal duties! Its complex as it draws on a wide r ange of le gal subjects including Tor t Law, Contract Law, Family Law, Criminal Law! Is judicial inter vention appropriate when judges are experts in law not in medicine? MEDICAL LAW A Challenging Legal Area 1
Doctors ability to help and moral obligation to do so make them vulnerable to expectations of the society.!!hippocratic Oath, the medical professional swears to act so as to preserve the finest traditions of my calling and experience the joy of healing those who seek my help.!however, should they render medical assistance to anyone in distress..in other words, should they act as Good Samaritans? 2
It is a moral duty to help those who are in need Lord Coleridge in R v Instan [1893] 1 QB 453 It would not be correct to say that every moral obligation involves a legal duty but every legal duty is founded on a moral obligation. 3
Strict confines of the English common law!common law strong reluctance of subjecting persons to such liability to those who fail to help others if the distress is not caused by him.!reluctance founded on the jurisprudential distinction between acts and omissions.!common humanity does not impose positive obligation to assist.!misfeasance is actionable whereas generally non-feasance is not. Further, there are some jurisdictions that imposes penalty on doctors for failure to render assistance to those who are in distress In many European jurisdictions, failure to render assistance to those in need capable of attracting criminal sanctions 4
French Law The French Law punishes both in criminal and civil law the bystander who, directly witnessing a dangerous incident, does not intervene even though to do so would pose no risk to him or a third party. Criminal Code Art 223-6! Whoever voluntarily fails to provide to a person in danger the assistance that, without risk for himself or a third party, he could provide, either by his own actions, or by initiating a rescue may be punished by up to five years imprisonment and a fine of up to 75.000 Euro.!Such a failure to provide assistance to a person in danger, such a breach of the duty to rescue, constitutes not only a criminal offence, but also a civil wrong. 5
German Law The basis for the German Law s duty to rescue is codified in 323c of the German criminal Code, the Strafgesetzbuch or StGB : Who fails to provide help in cases of disaster or imminent danger or distress, although this [help] is necessary and reasonable under the circumstances, [and is] especially without considerable danger for his own and without violation of other important duties possible, will be penalized with imprisonment up to one year or fined. Belgian Law The Belgian Law imposes on anyone who is capable to aid a legal duty to help a person, who is in great danger, without putting himself or others in serious danger (Article 422 Criminal Code). however, only a minimum of altruism is required, but no heroism. 6
Federal Court in Foo Fio Na v Dr Soo Fook Mun & Anor [2007]!Adopted the judgment by Callaghan J. in Hajgato v London Health Association In my view however, a court has a right to strike down substandard approved practices when common sense dictates such a result. (1982) No profession is above the law and the courts on behalf of the public have a critical role to play in monitoring and precipitating changes where required in professional standards. Disadvantages of legal intervention!the courts may find themselves drawn in to act as mediators in complex and frequently distressing matters. Therefore, courts are increasingly reluctant in interfering with clinical matters. They are faced with conflict to do justice to both the patient and the doctor. 7
THE PAST The Medical Profession in the Early Ages " Highest pedestal! Medicine was a matter of mystery! Medicine was then interwoven with bonds of religion, superstition and magic.! Ability to heal was not judged by competence but by their ability to communicate with demons and gods.! They functioned as priest, witch, and at the same time a lawgiver and judge. Court s Reliance on Medical Opinion! In Mahon v Osborne [1939], Lord Justice Goddard in the English Court of Appeal held that the standard of care is to be measured by expert evidence.! His Lordship stated that:! I would not for a moment attempt to define in vacuo the extent of a surgeon s duty in an operation beyond saying that he must use reasonable care, nor can I imagine anything more disastrous to the community than to leave it to a jury or to a judge, if sitting alone, to lay down what is proper to do in any particular case without the guidance of witnesses who are qualified to speak on the subject 8
Deferential Attitude of Judges Towards Medical Opinion! The intricacies of medical science are not, generally speaking, within judicial knowledge. This has led to formulation of the standard of care for the medical profession to be a matter of medical judgment with minimal court scrutiny.! From the time when the Hippocratic Oath was formulated, doctors are generally regarded as having a positive duty to do good and preventing harms.! The practice of medicine for quite some time gave rise to little controversy as the medical profession has been trusted to do what is best for their patients. Mr Justice Gopal Sri Ram! In his paper The Standard of Care : Is the Bolam principle the Law (2000) 2nd Medico Legal Conference Malaysia, stated that the direction the law takes, it must be with a view to balancing the immediate interest of a patient on the one hand and on the other, the interests of the future development of medical science for society as a whole, always bearing in mind that the practise of medicine is not a perfect science and that those who profess to exercise the particular skill are after all, human beings. His Lordship further opined that it is important for judges to guard against the proliferation of defensive medicine [and this may occur] if the courts impose too high a standard on members of the medical profession. 9
! Chin Keow v Govt of Malaysia (1967) probing at least into every patient s history was the very first thing any doctor would start with on seeing a patient.! Elizabeth Choo v Government of Malaysia (1970) the principle of law is well established that a practitioner cannot be held negligent if he treads the well-worn path! Dr Soo Fook Mun v Foo Fio Na & Anor and Another Appeal [2001] the Bolam test places a fairly high threshold for a plaintiff to cross in an action for medical negligence! Foong Yeen Keng v Assunta Hospital (M) Sdn Bhd & Anor [2006] The hospital cannot be faulted where there are differences of opinion as to the treatment of a patient. What is important is he acts with the ordinary care and skill of a doctor with his qualification.! The Desire to Retaliate! Demands for Accountability! Patient Autonomy and Right of Self-Determination! Technology and Advancement of Knowledge 10
#It is established that the [right] to selfdetermination requires that respect must be given to the wishes of the patient. Lord Goff in Airedale National Health Service Trust v Bland [1993] 1 All ER 821 Patients demanding for more and more accountability and the growth of PATIENT AUTONOMY 11
12
13
*Increasing awareness amongst members of the society on medicolegal issues. *Growth of consumerist attitude rising expectations - claims triggered if the provision of medical services below expectation. *Changing trend causing judicial and legislative interventions. *embodies the general principle that a person has a right to determine whether or not to undergo any medical procedure. *It is the patient who should decide what treatment, if any, he or she should undertake. *The patient expects the law to give him dignity, respect, i n d e p e n d e n c e, a u t o n o m y, i n f o r m a t i o n a n d s e l f determination. *The violation of the right to informed consent triggers a claim by a patient 14
* The practitioner is duty bound by law to inform his patient who is capable of understanding and appreciating such information of the risks involved in any proposed treatment so as to enable the patient to make an election of whether to proceed with the proposed treatment with knowledge of the risks involved or decline to be subjected to such treatment. *The determination of what is a material risk will not solely depend on medical judgment. *The court is also at liberty to reject medical opinion that does not stand up to logical analysis. *.in which the court affirmed that the decision of the Federal Court in Foo Fio Na v Dr Soo Fook Mun & Anor represents the law in determining the standard of care for doctor s duty to disclose risks in medical treatment and the materiality or non-materiality of a risk under the test enunciated by Rogers v Whitaker requires not just expert evidence but other factors that are relevant to the circumstances of the patient. 15
* Raus Sharif CJ: * Different consideration ought to apply to the duty to advise of risks as opposed to diagnosis and treatment. That duty is said to be noted in the right of selfdetermination. As decided by the Australian High Court in Rogers v Whitaker and followed by this Court in Foo Fio Na, it is now the courts (rather than a body of respected medical practitioners) which will decide whether a patient has been properly advised of the risks associated with a proposed treatment. The courts would no longer look to what a body of respectable members of the medical profession would do as the yardstick to govern the standard of care expected in respect of the duty to advise. *The test propounded by the Australian case in Rogers v Whitaker and followed by this Court in Foo Fio Na in regard to standard of care in medical negligence is restricted only to the duty to advise of risks associated with any proposed treatment and does not extend to diagnosis or treatment. With regard to the standard of care for diagnosis or treatment, the Bolam test still applies, subject to qualifications as decided by the House of Lords in Bolitho. 16
* Hasan bin Datolah v Kerajaan Malaysia [2010] 2 MLJ 646 Risk of paralysis was a material risk in both surgical procedures, namely, a fenestration and a laminectomy. * Norizan Bte Abd Rahman v Dr Arthur Samuel (2013) MLJU 81 The risk of uterine rupture if the procedure to terminate pregnancy was done simultaneously with the insertion of an intrauterine contraceptive device ( IUCD ) in a single procedure was material and must be informed to the patient. * Abdul Razak Dato Abu Samah v Raja Badrul Raja Zeezaman [2013] 10 MLJ 34 The risk of aspiration that could materialise if the surgery was undertaken without emptying the stomach content through the insertion of Ryle s tube needed to be informed to the husband of the deceased patient who would have persuaded his wife to subject herself to the Ryle s tube procedure.!upgrading of the consent form has been done by MOH recently in 2014 to take into account the legal developments!introduction of a new Consent Guidelines by MMC IN 2013 17
"Traditional and Complementary Medicine Act 2016 "Medical (Amendment) Act 2012 "Medical Device Act 2012 "Private Healthcare Facilities and Services Act 1998 enforced in 2006 "Offences that can lead to criminal liability in the Malaysian Penal Code Abortion, Euthanasia, Criminal Negligence "Upcoming Surrogacy Act and Organ and Tissue Transplantation Act "Promoting Safer medical practice in all aspects of healthcare building greater trust between patients and healthcare providers; "Encouraging Transparency, Reporting and Open Disclosure amongst Healthcare Providers Legislative Protection through proper Legal Framework; "The Importance of Educating Law and Ethics to the Medical Profession starting from the undergraduate level; "Assisting the medical profession to adhere to the developments of law through a variety of channels. 18
*If you need more details on medical law, please purchase my books on 1. Nursing Law and Ethics 2. Medical Negligence Law in Malaysia 3.Cases and Commentary on Medical Negligence 4. Law and Ethics relating to Medical Profession *Email: nemie@iium.edu.my Dr Puteri Nemie Jahn Kassim IIUM 19