MOH/P/AMA/13.

23()BUL)-e

E-BULLETIN

MEDICO LEGAL
SECTION

VOLUME 4: 2023
 TABLE OF CONTENTS

1 FOREWORD i

2 ARTICLES 1

3 CASE STUDY 21

4 MEDICO LEGAL STATISTICS 24

5 MEDICO LEGAL ACTIVITIES 26

6 PUBLICATIONS 42
 i

FOREWORD BY THE DIRECTOR OF MEDICAL PRACTICE DIVISION

Welcome to the latest edition of Medico Legal E-Bulletin. In the ever-evolving

landscape of healthcare and legal intersections, staying abreast of the latest
developments is essential. This publication serves as a compass, navigating the
intricate terrain where medicine and the law intersect.

The dynamic nature of medico legal matters demands a continuous exchange of

knowledge, ideas, and best practices. It is through platforms like this that we can
bridge the gap between these disciplines, fostering collaboration and a shared
understanding.

I extend my gratitude to the contributors whose expertise and dedication have made
this e-bulletin possible. Their commitment to unraveling the complexities of medico
legal issues is invaluable.

I encourage you to immerse yourself in the content, engage with the discussions, and
utilize the information provided to extend your understanding of this multifaceted field.
May this e-bulletin serve as a guiding light, offering clarity in the complex intersection
of medicine and the law.

DR. MOHAMED IQBAL BIN HAMZAH

DIRECTOR OF MEDICAL PRACTICE DIVISION
MINISTRY OF HEALTH
 ii

FOREWORD BY THE DEPUTY DIRECTOR OF MEDICO LEGAL SECTION

As we unveil the latest edition of the Medico Legal Section E-Bulletin, I extend a
warm welcome to all our esteemed readers. This publication stands as a testament to
our commitment to knowledge dissemination and continuous improvement in the field
of medico legal affairs.

In the dynamic intersection of medicine and law, staying informed is paramount. This
e-bulletin serves as a conduit for valuable insights, updates, and collaborative
discourse. My sincere appreciation goes to the editors who have contributed to the
creation of this e-bulletin.

I commend the diligent efforts of our contributors who have brought forth diverse
perspectives and expertise, enriching the content within. Your dedication is
instrumental in fostering a culture of continuous learning within our fraternity. To our
readers, I encourage you to delve into the articles, case studies, and analyses
presented here. It is through these shared learnings that we collectively elevate our
understanding and practice in the realm of medico legal affairs.

Wishing you an enlightening and insightful journey through the pages of this edition.

Warm regards,

DR. AHMAD FAREED BIN A. RAHMAN

PUBLIC HEALTH PHYSICIAN
DEPUTY DIRECTOR OF MEDICO LEGAL SECTION
MEDICAL PRACTICE DIVISION
MINISTRY OF HEALTH
 1

THE LEGAL PROTECTION OF PATIENT’S AUTONOMY THROUGH THE

REGULATION OF CONSENT TO TREATMENT
BY: DR. SHARON CHIN LU YIN

Introduction

Doctors have the ‘duty to advise’ by obtaining ‘informed consent for their proposed
treatment, and a breach of this duty can bring about a claim under the tort of negligence.

According to the Malaysian Medical Council, informed consent “can be said to be given
upon a clear appreciation and understanding of the facts, implications, and future
consequences of an action” and the patient giving the consent must have “adequate
reasoning capacity” and supplied with all the relevant facts at the time of consent.

Landmark cases of Bolam, Rogers and Montgomery have made reform history in the law of
consent, with its departure from traditional medical paternalism to patients’ self-
determination. It is premature to see the impact of this shift, whether on the doctor-patient
relationship or the medical practice itself, but the impetus is clear; the law aims to safeguard
patient autonomy.

This essay aims to narrate the evolution of informed medical consent in the judicial system
and highlight how, through this evolution, the court protects patient autonomy.

The Doctrine of Informed Consent in the Court of Law

a) The court explicitly recognised patients’ autonomy

In Schloendorff, the plaintiff agreed to undergo an examination under anaesthesia to confirm

a diagnosis of uterine fibroid and specifically withheld consent for other procedures.
However, when the mass appeared to be malignant intraoperatively, the defendant, who
was the plaintiff's surgeon, removed it.

The court found that the defendant’s action amounted to a ‘medical battery’. Cardozo J, who
ruled on the case in 1913, stated, "Every human being of adult years and sound mind has
the right to determine what shall be done with his own body," setting the principles of today's
medical consent model.
 2

THE LEGAL PROTECTION OF PATIENT’S AUTONOMY THROUGH THE

REGULATION OF CONSENT TO TREATMENT

b) The court established the doctors’ duty to inform

In Salgo, the plaintiff consented to undergo aortography after some explanation given by the
defendant, who was the doctor. After the procedure, the plaintiff suffered permanent
paraplegia and claimed that the defendant did not inform him about the nature of the
procedure and the complication risks. The court held for the plaintiff, stating that "a physician
violates his duty to his patient and subjects himself to liability if he withholds any facts
necessary to form the basis of an intelligent consent by the patient to the proposed
treatment. The court added that the defendant should not minimise any known risk of
complications and must practise discretion when discussing certain risks "consistent with full
disclosure of facts necessary to an informed consent”.

In Natanson, the plaintiff underwent post-mastectomy cobalt irradiation therapy, resulting in

extensive tissue damage. She sued the defendant, the physician who treated her, claiming
negligence for failing to inform her of the risks of the treatment. Upholding Salgo, the court
held for the plaintiff, stating that the defendant was "obligated to make a reasonable
disclosure to the appellant of the nature and probable consequences of the suggested
recommended cobalt irradiation treatment". The defendant was also obligated to make
proper disclosure regarding any known risk of complications from the treatment he was
planning for the plaintiff.

In Bang, the court held for the plaintiff when he sued the doctor who performed a
transurethral prostate resection that caused his spermatic cords to be severed, resulting in
sterility. Since the surgery was not an emergency, the court said that the defendant should
have informed the plaintiff about the risk of injury to the spermatic cords and life-threatening
infection if the defendant did not tie off his spermatic cords during the procedure. The court
added that it was the plaintiff’s right to choose which risk to take.

c) The court set the standards of disclosure

Reasonable Professional Standard

In the 1957 landmark case of Bolam, the plaintiff sustained a hip joint fracture during electro-
convulsive therapy (ECT) as he was not given a muscle relaxant and was unrestrained
during the procedure. The plaintiff sued the hospital for negligence, claiming that the
defendant did not inform him about the risk of injury from the ECT, that he was not offered a
muscle relaxant for the procedure, and that the defendant failed to restrain him during the
procedure physically.
 3

THE LEGAL PROTECTION OF PATIENT’S AUTONOMY THROUGH THE

REGULATION OF CONSENT TO TREATMENT

The court held for the defendant, and McNair J stated that a defendant was not negligent if
he acted according to the practices accepted by a responsible group of doctors practising
the procedure. Alternatively, a doctor was not negligent merely if he adopted a method
another group of doctors did not accept.

Subjective patient standard

In Sidaway, the plaintiff who sustained paraplegia from a cervical cord decompression
surgery sued her doctor for negligence in failing to warn her of the risk of the complication.
The court held for the defendant, citing that the plaintiff could not prove that the defendant
breached his duty of care in the omission of warning the plaintiff about the risk.
Lord Diplock said that doctors must provide the information if their patients want to be
informed. Lords Bridge and Keith noted that doctors had the duty to inform if there was a
significant risk of the treatment involved, even if a responsible group of doctors did not think
so. Notably, the lone dissenting judge, Lord Scarman, stated that the Bolam standard should
not apply to informed consent matters and that doctors should warn all their patients of both
inherent and material risks of the proposed treatment.

Reasonable patient standard and test of materiality

The Australian case of Rogers in 1992 set the precedence that a doctor had a duty to warn
their patient of any ‘material risk’ involved in a proposed treatment. In this case, the plaintiff
suffered almost total blindness in her left eye as a child after a penetrating injury. The
defendant, an ophthalmic surgeon, had advised the plaintiff that surgery could improve her
appearance and restore significant sight to her left eye. However, after the surgery, the
plaintiff suffered a rare complication called 'sympathetic ophthalmia', which caused an
inflammation of the left eye leading to the blindness of the right eye.

The plaintiff sued the defendant for negligence and received more than $800,000 in
damages. The defendant argued his case with the Bolam principle, but the court rejected the
argument. In regards to the 'duty to warn', the court stated that "The law recognises that a
doctor has a duty to warn a patient of the material risk inherent to proposed treatment; a risk
is material if, in the circumstances of the particular case, a reasonable person in the
patient’s position, if warned of the risk, would be likely to attach significance to it”. Doctors
also have the responsibility to be “reasonably aware that the particular patient, if warned of
the risk, would likely to attach significance to it”.
 4

THE LEGAL PROTECTION OF PATIENT’S AUTONOMY THROUGH THE

REGULATION OF CONSENT TO TREATMENT

Rogers cited an earlier seminal Australian case of F v R, where the court awarded damages
to a woman and her partner. They fell pregnant despite the woman undergoing tubal
ligation. The court stated that the defendant was liable for failing to advise the plaintiffs that
tubal recanalisation could occur after the ligation. Mohr J held that it was "the overwhelming
and overriding desire of the plaintiffs was to avoid future pregnancies", and in his opinion, it
was a breach of the defendant's duty to not inform the plaintiffs of the risk.

In the Scottish case of Montgomery, the pursuer had a high-risk pregnancy due to insulin-
dependent diabetes mellitus and her small stature. Her baby encountered shoulder dystocia
during labour, and the manoeuvres to deliver the child resulted in prolonged umbilical cord
compression, cutting off oxygen to the baby. As a sequela, the child developed cerebral
palsy. The pursuer claimed her doctor did not warn her about the risk of shoulder dystocia
with vaginal birth and never offered her a caesarean section. The defender argued that the
pursuer never asked her about any specific risks and that she would not have volunteered
the information because, in her judgment, the chances of shoulder dystocia were remote.
The defender added that offering the pursuer a caesarean section was not in the pursuer’s
best interest because most women would opt for a caesarean section if told of the risks.

In Montgomery, the Supreme Court ruled that doctors must ensure that their patients know
material risks in any treatment offered and other alternatives available. The determination of
materiality depends on the assessment of whether a reasonable person in the patient's
circumstance would consider the risk to be significant or not. The onus was on the doctor to
reasonably be aware of whether the risk was significant to the patient or not, with the caveat
that the doctor reserves the right to therapeutic privilege.

With Rogers and Montgomery, the Bolam test is no longer applicable to consent matters.
The reasonable patient, no longer the reasonable doctor standard, determines omission and
material risks, the crux of the Bolam standard.

Doctors are legally obligated to inform their patients about all inherent and material risks of a
proposed treatment, but the challenge is the determination of materiality. This exercise
would require doctors to understand their patients well to gauge whether they would attach
significance to a particular risk.
 5

THE LEGAL PROTECTION OF PATIENT’S AUTONOMY THROUGH THE

REGULATION OF CONSENT TO TREATMENT

Bibliography

Primary Sources

Australia
F v R (1983) 33 SASR 189
Rogers v Whitaker (1992) 175 CLR 479

Scotland
Montgomery v Lanarkshire Health Board [2015] UKSC 11

UK
Bolam v Friern Hospital Manangement Committee (1957) 1 WLR 583
Sidaway v Board of Governors of the Bethlehem Royal Hospital [1985] AC 871

US
Bang v Charles T. Miller Hospital, 251 Minn. 427, 88 N.W.2d 186 (1958)
Natanson v Kline, 186 Kan. (1960)
Salgo v Leland Stanford Jr. University Board of Trustees, 154 Cal. App. 2d 560 (1957)
Schloendorff v Society of New York Hospital 105 N.E. 92, 211 N.Y. 125

Secondary sources

Malaysian Medical Council, ‘Consent for Treatment of Patients by Registered Medical

Practitioners (2016)

DR. SHARON CHIN LU YIN (MMC: 44513)

MD (UNIMAS)
MEDICOLEGAL & ETHICS UNIT, HOSPITAL KAJANG
 6

REFORMING MEDICAL NEGLIGENCE LITIGATION: NAVIGATING INDIVIDUAL

LIABILITY AND SYSTEMIC IMPROVEMENT
BY: DR. NOR AZIZAH BINTI MOHAMED YUSUFF

Medical negligence litigation is a special application of the tort of negligence, which typically
seeks remedy through compensatory damages. The tort of negligence adopts an objective
standard based on fault liability to measure professional conduct whereby compensation is
awarded only if the claimant can prove that the injurer in question was at fault for the injury.

The existing adversarial system for medical negligence claims needs to be reformed since it
only concerns whether the defendant had a duty of care; whether that duty was breached;
and if that breach caused the injury for which compensation is sought. Although it aims to
restore the life of an injured patient as much as possible, patients’ desire for an apology,
explanation, and the assurance that a similar event would not occur to anyone else is
lacking. Excessive focus on individual failure obscures the wide systemic failure that may
have led to the patient’s injury. Regrettably, the nature of a legal battle between healthcare
workers and claimants works against the claimants’ best interests because of the limited
disclosure on what went wrong and the need to defend the clinical decisions made during
patient care. Further, there is no mechanism in tort that investigates, makes conclusions,
and provides recommendations addressing the wider issues of the case under examination.
It should be recognised that every preventable incidence not only poses a traumatic
experience for the patients, but also has severe negative repercussions for the healthcare
workers and the organisations.

The current regime of the tort system not only negatively impacts the patient, but it is also
detrimental to the healthcare workers and the organisations involved. The current tort
system negatively impacts the morale of healthcare workers because the focus is set to
determine individual liability.The fundamental issue with the tort system is that it is inefficient
at assessing the risk-taking nature of a medical situation. This is based on the fact that
physicians take calculated risks that demand their expertise and judgment to provide
successful medical treatment. The typical response when things go wrong is often to assign
the blame to a particular person. Weeks of proper care are nullified by a single mistake. The
struggle of working in a risky medical profession has been illustrated in Wilsher v Essex
Area Health Authority

The doctors and nurses worked all kinds of hours to look after the baby. They safely brought
it through the perilous shoals of its early life. For all that we know, they far surpassed on
numerous occasions the standard of reasonable care. Yet it is said that for one lapse they
(and not just their employers) are to be held liable in damages . . . Has not the law taken a
wrong turning if an action like this is to succeed?
 7

REFORMING MEDICAL NEGLIGENCE LITIGATION: NAVIGATING INDIVIDUAL

LIABILITY AND SYSTEMIC IMPROVEMENT

This predicament not only demoralises healthcare staff, but it also strains the doctor-patient
relationship. Furthermore, tort regime does not take into account the contributory systemic
issues stemming from organisational failings such as cost-cutting measures that result in
overworked personnel, inadequate safety protocols, and an intense focus on quantity over
quality. The primary focus of tort is negatively set on determining individual liability, which
tends to miss the opportunity to discover broader contributing factors that may have caused
patient harm. Hence, in the event of a medical error, it should not be viewed in isolation of
individual blame, but rather against the backdrop of systemic factors that have created a
culture and environment that increase the likelihood of human error.

The present adversarial system also has a detrimental impact on the well-being of
healthcare workers. Healthcare workers are referred to as ‘second victims’ since they too
undergo stressful and traumatic experiences following medical error. This is a direct result of
the pressure society has placed on physicians to precisely diagnose and treat patients, with
little tolerance for error. Despite frequent reminders that doctors are human too, the
technological advances, the precision of laboratory testing, and the innovation in multimodal
imaging have raised the bar and fostered an expectation of perfection. Death is no longer
perceived as a possible consequences of an illness; rather, it is viewed as an avoidable
complication.

The lack of mechanisms for healing from the emotional stress of medical negligence
litigation causes physicians to resort to dysfunctional methods of self-protection. Rather than
taking responsibility for their actions, they often react to their own mistakes with anger and
blame and may behave defensively by scolding the patient or their team members. The
chain of events that connects negligence to mistakes often leaves healthcare professionals
feeling singled out, unsupported and anxious about the possibility of being punished. Some
of these doctors choose to change their careers or specialisations, and in some cases, they
decide to quit the profession. This finding is consistent with the study conducted by Studdert
et al. who found that physicians stop practising medicine following medical negligence
claims at an average rate of 3.4 per 100 physicians per year.

This discovery of doctors leaving their practises has enormous implication for the healthcare
system. As more doctors quit the service, the smaller number of remaining employees will
be overworked and stressed, increasing the likelihood of errors, and resulting in an increase
medical negligence charge.
 8

REFORMING MEDICAL NEGLIGENCE LITIGATION: NAVIGATING INDIVIDUAL

LIABILITY AND SYSTEMIC IMPROVEMENT

This phenomenon is particularly pertinent in the context of crises such as the Covid-19
pandemic, which has exacerbated staffing shortages in the healthcare sector. The urgency
of addressing these issues cannot be overstated, as failing to retain healthcare
professionals and maintain adequate staffing levels jeopardizes patient care and the overall
resilience of the healthcare system.

In conclusion, the current system of medical negligence litigation, while well-intentioned,

exhibits shortcomings in addressing the comprehensive needs of patients and healthcare
workers. It predominantly fixates on individual liability, overlooking the broader systemic
issues at play. A more holistic approach that encompasses systemic factors, fosters
communication, and supports the well-being of healthcare professionals is essential for
achieving a just and effective system for addressing medical negligence.

Bibliography

Primary Sources

R v Hadiza Bawa-Garba [2016] EWCA Crim 1841.

Wilsher v Essex AHA [1987] 1 QB 730.

Department of Health, An Organisation with a Memory: Report of an Expert Group on

Learning from Adverse Events in the NHS (The Stationery Office 2000).

Donaldson L, Making Amends: A Consultation Paper Setting Out Proposals for Reforming
the Approach to Clinical Negligence in the NHS (London 2003).

Health and Social Care Committee, NHS Litigation Reform: Thirteenth Report of Session
2021–22 (2022).

Secondary Sources

Douglas T, ‘Medical Injury Compensation: Beyond No-fault’ (2009) Medical Law Review
17(1) 30, 31.

Heywood R, ‘Systemic Negligence and NHS Hospitals: An Underutilised Argument’ (2021)

King’s Law Journal, 32(3) 437.

Harrison R et al., ‘Emotion and Coping in the Aftermath of Medical Error’ (2015) Journal of
Patient Safety 11(1) 28.
 9

REFORMING MEDICAL NEGLIGENCE LITIGATION: NAVIGATING INDIVIDUAL

LIABILITY AND SYSTEMIC IMPROVEMENT

Jones M, Medical Negligence (6th edn, Sweet and Maxwell, 2021).

Merry A and Brookbanks W, Merry and McCall Smith's Errors, Medicine and the Law (2nd
edn, Cambridge University Press 2017).

Stauch M, The Law of Medical Negligence in England and Germany: A Comparative

Analysis (Hart Publishing, 2008).

Studdert DM et al., ‘Changes in Practice among Physicians with Malpractice Claims’ (2019)
New England Journal of Medicine 380(13) 1247.

Toraldo DM, Vergari U and Toraldo M, ‘Medical Malpractice, Defensive Medicine and Role
of the Media in Italy’ Multidisciplinary Respiratory Medicine 10(12) 1.

Wu AW, ‘Medical Error: The Second Victim: The Doctors who Makes Mistakes Needs Help
Too’ (2000) BMJ 320(7237) 726.

DR. NOR AZIZAH BINTI MOHAMED YUSUFF (MMC: 61917)

MBBS (CUCMS), LLM (LIVERPOOL)
MEDICO LEGAL SECTION, MEDICAL PRACTICE DIVISION
MINISTRY OF HEALTH
 10

ETHICS AND LAW - WHO SHOULD TAKE THE LEAD

BY: DR. CHAN LEE LEE

Ethics, Morality or Law

“I came to the hospital just to wash the wound. But the doctors forced me to cut my
leg. They threatened that I could die if I don’t sign for the operation. Now I can’t even
work. I want the hospital to compensate for my loss…”

“The patient was in septic shock. It was a life and death situation…”

The above is an illustrative but common scenario in the hospital. The next question following
such a scenario would be: ‘What does the law require the doctors to do?’ How about
professional ethics? Which will give the most impact to the doctors when making medical
decisions?

The patient’s right to refuse treatment is stated in the professional ethics guideline on
consent. However, it is a challenging scenario when the patient’s decision is not aligned with
the doctors’ conscience or morality. In such a situation, what should be the role of the law in
overseeing and intervening the practice of medicine? What does a doctor need to consider
when making a medical decision? In most scenarios, the healthcare professionals commit to
do the best and do no harm to the patients. However, will there be a situation when the
professional ethics go astray?

The Story of Schloendorff

“Every human being of adult years and sound mind has a right to determine what shall be
done with his own body; and a surgeon who performs an operation without his patient’s
consent, commits an assault, for which he is liable in damages. This is true except in cases
of emergency where the patient is unconscious and where it is necessary to operate before
consent can be obtained.”

The famous quote of Judge Benjamin Cardozo in the case of Schloendorff is frequently cited
in explaining the doctrine of informed consent. In 1908, Mary Schloendorff visited the
Society of New York City, a charitable hospital, for her stomach disorder.
 11

ETHICS AND LAW - WHO SHOULD TAKE THE LEAD

Subsequent examination revealed a tumor in her uterus that her doctors wish to examine
further under ether. Mary Schloendorff consented to be examined under ether but not to
surgery. However, the doctors performed a hysterectomy while she was unconscious. As a
result, she lost her fingers to gangrene, which was believed to be due to an embolism
formed as a result of the surgery.

Unfortunately, Mary Schloendorff did not succeed in her claim despite the judge’s well-
known quote of patient’s self-determination in this case. It was largely due to the legal
immunity nature of a charitable institution at that point of time.

The local news reporting and the trial court transcripts of the case of Schloendorff may
reveal to today’s society the importance of having the law to set the minimal standard in
medicine.

“To this she also consented (examination under ether), but stipulated that there be no
operation at that time. On recovery from the effects of the ether, Mrs. Schloendorff found
that the surgeons had made incisions in her back and abdomen.”

“Mrs. Schloendorff stated several times that she wanted no operation, but was reassured
that only the ‘ether examination’ would take place.”

“The operating surgeon stated that he kept no record of operations but he recalled his
encounter with Mrs Schloendorff: ‘I told her that I would remove it if she wanted it removed.
She did not say she was opposed to an operation’.”

“There were no other records to review on the question of consent because the surgeon
testified,’I do not believe it is a custom to give consent in writing to an operation’.”

Bear in mind that this happened more than a century ago. Today, the practice of informed
consent gives a whole different panorama. By having a glimpse of the history, it may help us
to understand and appreciate the evolution of informed consent doctrine.

Next, we will look at the role of the law when professional ethics contradicts the healthcare
professional’s individual conscience.
 12

ETHICS AND LAW - WHO SHOULD TAKE THE LEAD

Ms B v An NHS Hospital Trust

In February 2001, Ms B, 43 years old, unmarried, was admitted to the defendant hospital for
intramedullary cervical spine cavernoma. She became tetraplegic with complete paralysis
from the neck down and was ventilator-dependent since then. After a surgery to remove the
cavernous hematoma, she was able to move her head and articulate words. She expressed
her wish to have the ventilator to be removed through her lawyers. Following her request,
she was assessed by several psychiatrists in regards to her mental capacity at different
times. In August 2001, she was deemed to be mentally competent. However, the treating
doctors were not ready to turn off her ventilator and reluctantly proposed a one-way
ventilator-weaning programme. Ms B applied to the court declaring that she had been
treated unlawfully. It is worth to note that Ms B had a living will made in September 1999,
when she was first diagnosed with cervical spine cavernoma , expressing her wish for
treatment to be withdrawn in case of life-threatening condition.

The court held that Ms B was mentally competent to make decisions about her medical
treatment and that she had been treated unlawfully. A nominal damages was awarded. Two
months after the court ruling, the Department of Health announced the death of Ms B. Some
of the transcripts of the court judgment are as followed:

“I fully accept the doctor’s right to say, ‘I personally will not do it’ (withdraw the ventilator),
and I respect that position, but I was angered at the arrogance and complete refusal to allow
me access to someone that would,” said Ms B.

“As Dr. C said, they are trained to save lives. The request from Ms B, which would have
been understood in a palliative care situation, appears to have been outside the experience
of the ICU. They had all been looking after Ms B for a long time on a very intimate level.
They felt that a lot more needed to be done for these patients.”

“The one-way weaning process (proposed by the doctor) appears to have been designed to
help the treating clinicians and the other carers and not in any way designed to help Ms B.
The clinicians had clearly become emotionally involved.”

“(The Defendant lawyer) has argued that it is legal capacity which I (the Judge) must
consider, not the assessment of the mental capacity provided by the doctors. Unless it is an
exceptional case, the judicial approach to mental capacity must be largely dependent upon
the assessments of the medical profession whose task is on a regular basis to assess the
competence of the patient.”
 13

ETHICS AND LAW - WHO SHOULD TAKE THE LEAD

In this case, the judge acknowledged the dedication of the healthcare professionals in
treating Ms B and spelled out the morality/conscience of the treating doctors in regards to
treatment withdrawal. Here, the law acts as the final resort to make a legal decision on
withdrawal of treatment. Interestingly, we can also see from the transcript above, that the
judge made a clear distinction between legal and medical decisions regarding patient’s
mental capacity.

Medico-ethico-legal Decisions

Some scholars suggested that medical decisions encountered by the doctors can be divided
into three: legal, ethical and moral decisions. Legal decision is where the law intervenes in
medical practice, especially when it involves the issue relating to patient’s right. It is best
demonstrated by the law relating to informed consent.

Professional ethical decision is where the law decides that it is best resolved and regulated
by the healthcare profession itself. It is the decision made by the healthcare profession as a
whole, instead of individual doctors.

Moral decision is one made based on the conscience of the individual doctor. Under certain
circumstances, the individual’s conscience/morality may contradict the professional’s ethical
principles. This has been acknowledged and respected by the profession, and is best
demonstrated by the doctor’s right to conscientious objection to abortion.

The Symbiotic Relationship of Ethics and Law

Both healthcare and law are dynamically evolving to suit the society’s needs. New
challenges arise in the process. Frustratingly, there is no single best or one-size-fits-all
answer. The interaction between medical law and professional ethics should work in such a
way to lead the profession towards the gold standard of ethical behavior while ensuring the
legal minimum is achieved. By recognizing the types of decision and categorizing the
decisions that arise in clinical settings, i.e. legal, professional ethical and individual moral
decisions, it gives ideas on which problems are best resolved by each of the categories.

For instance, the doctrine of informed consent is governed by the law. On the other hand,
the process of informed consent taking is also regulated by professional ethics. When there
is a dilemma in making medical decisions, the professional ethics guidance should be the
first to consider.
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ETHICS AND LAW - WHO SHOULD TAKE THE LEAD

Professional ethics is the ‘gold standard’ that the healthcare professionals should strive to
achieve. However, one should be aware of the existing law and abide by it so that the
practice of medicine does not fall into an unlawful state. Under certain circumstances, a
legal decision needs to be sought as the last resort (such as the case of Ms B). Hence, both
ethics and law should come hand in hand in the practice of medicine. The symbiotic
relationship between the two needs to be maintained by all means.

Bibliography

Primary Sources

Ms B v An NHS Hospital Trust [2002] EWCH 429

Schloendorff v Society of New York Hospital [1914] 211 N.Y. 125

Malaysian Medical Council, ‘Consent for Treatment of Patients by Registered Medical

Practitioners’ (2016)

Malaysian Medical Council, ‘Code of Professional Conduct’ (2019)

Malaysian Medical Council, ‘Good Medical Practice’ (2019)

Secondary Sources

Jose Miola, Medical Ethics and Medical Law—A Symbiotic Relationship (Hart Publishing
2007)

Charles Foster and Jose Miola, ‘Who’s In Charge? The Relationship between Medical Law,
Medical Ethics and Medical Morality?’ (2015) Medical Law Review 23 (4)

Clare Dyer, ‘GMC to Send Out New Guidelines on End of Life Decisions’ (2002) BMJ 324
(4) <https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1123021/> accessed 2 January 2023

Paul A. Lombardo, ‘Phantom Tumors and Hysterical Women: Revising Our View of the
Schloendorff Case’ (2015) The Journal of Law, Medicine & Ethics
<https://www.studocu.com/en-gb/document/cardiff-university/law-masters/phantom-tumors-
practical-document-provided-for-the-purposes-of-ethics-law/1445846> accessed 28
December 2022

DR. CHAN LEE LEE (MMC: 71967)

MD (UNIVERSITAS GADJAH MADA), LLM (TAYLOR’S)
MEDICOLEGAL UNIT, HOSPITAL SELAYANG
 15

FAILURE TO PREVENT SUICIDE CLAIM

BY: DR. GABRIEL TANG PEI YUNG

Introduction

Eliciting medical liability in psychiatric cases can be very complex. It requires

multidisciplinary involvement and multilevel investigations for fact findings. Despite medical
negligence claims in the psychiatric field are not common in Malaysia, these cases should
not be neglected because they are still an uprising trend worldwide, especially in failure to
prevent suicide claims. Since Malaysia does not have specific provisions in the written law
and any precedence case related to failure to prevent suicidal claims, according to Section 3
of the Civil Law Act 1956, England common law shall be applied by the court in future if a
similar case happens in Malaysia.

According to the case of Rabone v Pennine Care NHS Trust, the Supreme Court ruled that
hospitals should have a positive duty to prevent their patients from suicide. The decision
was made according to Article 2 (Art 2) of the European Convention on Human Rights (the
convention) which stated that “Everyone’s right to life shall be protected by law…” However,
many may mistakenly take the statement for granted and conclude that failure to prevent
patients from suicide can directly put the hospital and the treating doctors under liability.
Thus, in this article, we are going to explore a few court cases and analyze the rationales
behind the judgment to allow us to have greater insight into the aspect of the needed
improvements in order to prevent similar negligence from happening in future.

Overview of Rabone v Pennine Care NHS Trust (2012)

Rabone v Pennine Care NHS Trust is an English case related to Melanie Robone, a 24-
year-old lady with underlying history of a suicidal attempt on 11th April 2005. She was
voluntarily admitted to the hospital for severe depressive symptoms with high self-harm and
suicidal risk. However, her admission to the ward was informal due to the bed capacity of
the hospital during that time was full. On 19th April 2005, Melaine was granted 2 days of
home leave following her several requests despite her mother’s reservations. On 20th April
2005, she hung herself from a tree and took her life in the afternoon. Her father
subsequently filed a lawsuit against NHS trust for negligence in granting home leave to the
patient and failure to treat her depression successfully. On 31st August 2005, Mr Rabone
wrote a letter to the trust regarding the criticism of the decision of allowing the patient home
leave which further led to his daughter’s death. Mr Rabone was subsequently informed by
the trust the complaint will be “put on hold” until the internal investigation of the case was
completed. However, the investigation was delayed despite Mr Rabone expressing his
concern multiple times. The report was only available to Mr Rabone on 16th March 2007.
 16

FAILURE TO PREVENT SUICIDE CLAIM

The damage claim is on behalf of Article 2 of the European Convention on Human Rights
(Art 2) which stated that everyone’s right to life shall be protected by law. Mr Rabone
pleaded the claim for breach of Article 2 for the duty to protect life and the duty of conducting
a proper investigation into the death. However, the lower court and court of appeal held that
the trust did not owe the duty to prevent suicide in this case because Malaine was a
voluntary mental patient who was not detained under Mental Health Act 1983 (MHA). The
Court of Appeal also dismissed the appeal. Finally, in 2012, the appeal of this case was
allowed under the Supreme Court judgment.

What is Operational Obligation?

Based on the interpretation of the European Court of Human Rights (the Convention), Art 2
imposed 3 duties on the states which are: “(i) a negative duty to refrain from taking life save
in the exceptional circumstances described in art 2(2); (ii) a positive duty to conduct a proper
and open investigation into deaths for which the state might be responsible; and (iii) a
positive duty to protect life in certain circumstances.” The positive duty to protect life in
certain circumstances can also be called as “operational duty” which was articulated in the
case of Osman v United Kingdom. This is a case of the failure of the police officers to
protect Mr Osman and his family members despite multiple warning signs illustrating the
dangers and physical threats to the claimant were shown to the police. In the final court
judgement of this case, the court stated the operational obligation only arises in specific
circumstances where the authorities fail to take preventive measures despite there is a real,
direct and immediate risk to the individual’s life. In other words, if a “real” and “immediate”
risk to life is present, the state and the authority have the duty to prevent it from happening.

According to Lord Rodger in the case of Savage South Essex Partnership NHS Foundation
Trust, the threshold to establish the breach of operational obligation is much higher than
merely negligence. It is because as long as the evidence is sufficient enough to show the
risk was reasonably foreseeable, the negligence can be proven. There is no necessity to
prove whether the risk was real and immediate to establish medical negligence. Since this
case was pleaded under Art 2 of the convention, the discussion and judgement of the
justices are mainly pertaining to whether a fatal lawsuit claim against a hospital should
generate a parallel claim to the fundamental human right to life which is stated in Art 2 of the
convention.
 17

FAILURE TO PREVENT SUICIDE CLAIM

The Rationale of the Lower Court Judgement and the Court of Appeal’s Dismissal

In the case of Rabone v Pennine Care NHS Trust, the lower court judge found that Malaine
was a voluntary psychiatric patient who was not under detention of Mental Health Act. Thus,
the operational obligation should not apply in this case. However, even if the defendant
owes an operational obligation, such obligation was not breached due to failure to fulfil the
criteria of “immediate” risk. The lower court accepted that the suicidal risk was a “real” risk
because she was admitted to the hospital for a real suicidal attempt. However, the lower
court perceived that the risk was not “immediate” because the court accepted the expert
opinion that the risk of suicide for Malaine was as low as 2 percent to as high as 20 percent.

On the other hand, the justice of the Court of Appeal also pointed up that the primary aim of
Art 2 of the Convention is to protect and maintain fundamental human rights. It should not be
duplicated in all fatal accident cases. Since this case is about a fatal accident against a
hospital, and thus, it should be treated as a professional negligence case. There was no
reason that a claim against a hospital should draw a parallel claim under the Art 2 of the
Convention. Even if the there was “real” and “immediate” risks were disregarded in this
case, they should be discussed under the remedy of medical negligence.

The Decision and Justification of the Supreme Court

The judgments of the lower court and the court of appeal subsequently were overturned by
the Supreme Court with an unanimous decision, Lord Dyson provided a very comprehensive
leading judgement and divided this case into few issues.

The first issue was whether the operational duty can be extended to protect a non-detained
psychiatric patient from suicide despite it was not mentioned in the judgement of the case of
Osman v United Kingdom. Both the lower court and Court of Appeal applied the case of
Powell and Rayner v the United Kingdom, demonstrating that the state does not owe
operational obligation in cases related to medical treatment in public hospitals. However,
according to Lord Rodger in the case of Savage South Essex Partnership NHS Foundation
Trust, there is an exception to the principle stated in Powell v United Kingdom which is in
psychiatric patients who are detained in the hospital.

It is important to note the differences between informal psychiatric patients who are at “real”
and “immediate” risk of death secondary to suicide versus ordinary patients who are at “real”
and “immediate” risk of death secondary to the physical disease progression (for example,
the risk of acute coronary syndrome is real and immediate).
 18

FAILURE TO PREVENT SUICIDE CLAIM

The former group may have impaired mental capacity and thus, the risk of death by allowing
the patient discharges is a lot higher. Moreover, the judge also found that there were
incidents when the health trust refused to grant home leave to Melaine, she still obeyed the
order and stayed in the ward. It demonstrated that the hospital had a certain level of control
over Melaine. Although she was an informally admitted psychiatric patient, her overall
circumstances were not much different compared to patients who are detained in the
hospital. Therefore, Lord Dyson held that the operational duty existed in this case.

As the response whether the risk was “immediate”, Lord Dyson applied Strasbourg
jurisprudence in Opuz v Turkey which stated if the risk poses a continuing threat to the
individual’s safety and health, it should be considered as an “immediate” risk. Thus, the risk
of suicide for Melaine should be labelled as “immediate” despite the expert assessment
showing that the risk of suicide was between 5-20 percent. Conversely, if Melaine is in the
remission stage of depression, or there is evidence showing that no continuing threat to her
life, the hospital does not have the operational obligation in such case.

Breach of Operational Obligation

In the case Osman v United Kingdom, the justice also emphasized that operational
obligation should be interpreted “in a way which does not impose an impossible or
disproportionate burden on the authorities”. In the case of Rabone and another v Pennine
Care NHS Foundation Trust, we found that the Supreme Court was using a similar principle
as well by evaluating whether it is within the scope of the power of the authority to prevent
the violation of the right to life.

In the case of Rabone v Pennine Care NHS Trust, the court found that when the hospital
rejected Melaine’s request for home leave in the beginning, she followed the order and
remained in the hospital. It means that if the hospital insists on not granting Melaine home
leave, she will not have the chance to suicide outside the hospital.

Moreover, the Supreme Court also found that the decision of granting Melaine home leave
“was one which no reasonable psychiatrist would have taken.” No proper investigation or
risk assessment was done before she was given home leave. If Malaine insisted to get the
home leave, instead of granting her the leave, the hospital should exercise the authority
under MHA to prevent her to do so. In addition, there were also no proper plans given to her
during the home leave which made her extremely vulnerable under that circumstance. Due
to the reasons mentioned above, the Supreme Cord concluded that Melaine’s right to life
was violated.
 19

FAILURE TO PREVENT SUICIDE CLAIM

Conclusion

On the other hand, failure to prevent suicide claims should be viewed and analysed from
multidimensional perspectives rather than myopically focusing on the way how the case will
be judged under the principle of medical negligence. If this case is judged and examined
under the fundamental principle of medical negligence which are presence of duty of care,
breach of the standard of care, and causations, the verdict may not be the same. If the
Bolam test is applied, the suicide risk assessment of the expert witness may become over
powerful which can possibly overturn the verdict of this case.

To apply this case to clinical encounters, do the psychiatrists who are running outpatient
services hold higher legal immunity against failure to prevent suicidal claims due to little
control over the patient’s activity? From the perspective of the United States, the Court of
Appeal of Florida stated that psychiatrists who were giving outpatient services should be
assumed no liability if the patient suicide because it is unforeseeable, back to the year 2001.
However, in 2016, Florida Supreme Court overturned the decision and abolished such a
blanket rule. Thus, to answer the question of whether the psychiatrist should be liable, 3
levels of analysis are needed- (i) whether death is foreseeable (to establish the presence of
negligence), (ii) whether there is “real” and “immediate” risk to the patient and (iii) whether
necessary measures were taken to prevent suicide. The foreseeability test is difficult to
establish because the predictive values of most suicidal assessment tools are still poor.
Some patients will even lie to prevent themselves to get admitted. If the proper risk
assessment was done and noted that “real” and “immediate” is present, the doctor should
take the necessary measures to prevent the patient from suicide such as via immediate
referral to a psychiatric hospital for detention with the escalation of psychiatric treatment. If
not, the psychiatric doctor is liable for the claim.

In conclusion, there are many more failures to prevent suicide claim cases happening
around the world. Hopefully, this article can provide an overview to everyone on how a
failure to prevent suicide claim is analyzed in the eyes of the law and able to increase
awareness among psychiatrists to be more vigilant in the management of depression and
suicidal cases.
 20

FAILURE TO PREVENT SUICIDE CLAIM

Bibliography

Primary Sources

Civil Law Act 1956

European Convention on Human Rights, as amended on 1st August 2021

Opuz v Turkey (2009) 50

Osman v United Kingdom (1998) 29 EHRR 245

Powell and Rayner v the United Kingdom30 EHRR CD 362

Rabone (in his own right and as personal representative of Melanie Rabone, deceased) and
another v Pennine Care NHS Trust [2010] All ER (D) 160

Rabone and another v Pennine Care NHS Foundation Trust [2012] UKSC 2

Savage South Essex Partnership NHS Foundation Trust (2008) UKHL 74

Secondary Sources

Oquendo MA, Bernanke JA. ‘Suicide risk assessment: tools and challenges.’ (2017) World
Psychiatry.16(1)

Stein, A. (2016) ‘Outpatient Psychiatric Treatment: The Duty to Prevent Patient Suicide’, Bill
of Health, 12 December. < https://blog.petrieflom.law.harvard.edu/2016/12/12/outpatient-
psychiatric-treatment-the-duty-to-prevent-patient-suicide/ > (Accessed: 02 February 2023).

DR. GABRIEL TANG PEI YUNG (MMC: 75108)

MD (UKM), LLM (TAYLOR’S)
MEDICOLEGAL UNIT, HOSPITAL AMPANG
 21

CASE STUDY 1
BY: DR. TAN CHIOU SHEUE

Case summary:
A young lady has been diagnosed with autoimmune hepatitis and situs inversus since June
2018 and is under the Gastroenterology Department's follow up. On October 2018, the
patient underwent a liver biopsy under ultrasound-guided by a Medical Officer from the
Radiology Department. The patient collapsed immediately after the procedure. Bedside
ultrasound was done, and it was noted that the patient's liver is located in the left
hypochondrium. A previous ultrasound in June 2018 was reviewed, and it showed that the
patient has situs invertus and biopsy was in fact done at the spleen. The patient underwent
splenectomy, but passed away with the cause of death documented as splenic injury due to
an iatrogenic mishap with situs inversus totalis.

Inquiry findings:
The Medical officer involved overlooked to review the previous ultrasound prior to the
procedure.
The Gastroenterologist in charge (who was in the process of gazettement) overlooked to
review the ultrasound and the abnormality.

Learning points:
The healthcare organization has a duty to enhance patient safety. This incident is
preventable if the x-ray was reviewed prior to the procedure.
The importance of preparing a medical alert card to signify an abnormality or rare
condition in patients.
The significance of reviewing the standard operating procedure for biopsies conducted
in the Radiology Department.

DR. TAN CHIOU SHEUE (MMC: 59341)

MD (I.M. SECHENOV MOSCOW MEDICAL ACADEMY)
MEDICO LEGAL SECTION, MEDICAL PRACTICE DIVISION
MINISTRY OF HEALTH
 22

CASE STUDY 2
BY: DR. FARAH NADZIRAH BINTI ZAINUDDIN

Case summary:
A 30 year old Malay lady with no known medical illness presented to the Emergency and
Trauma Department (ETD) after accidentally sprayed pesticide on her right eye. She had
right eye swelling and discomfort following the incident. After examination by the Medical
Officer (MO) in ETD, she was referred to the Ophthalmology Department for further
management. She was seen by a MO from the Ophthalmology Department in the ward and
was diagnosed with an alleged chemical injury to the right eye with no ocular involvement.
The patient was told to use ‘Eye Mo’ (which she already had at home), and hence no
prescription was given by the Ophthalmology MO. However, the ETD MO saw the treatment
plan by the Ophthalmology MO and interpreted G. AT QID as Gutt Atropine QID and
prescribed it to the patient. The patient suffered blurry vision for 2 weeks following the
instillation of the medication.

Inquiry findings:
The Ophthalmology MO failed to document that the patient did not need any
prescription.
The Ophthalmology MO used a non-standardized abbreviation in the treatment plan.
There was a prescribing error by the ETD MO. It was due to a lack of knowledge and
experience, non-standardized abbreviations being used, and a failure to seek further
clarification.
The prescription by ETD MO was written as Gutt. Atropine QID without specifying the
strength and dosage of the medication. Despite this, the eye drop was dispensed to the
patient without a query from the pharmacist to the prescribing doctor.

Learning points:
Usage of non-standardized abbreviation should be avoided.
The need to strengthen good dispensing practice.

DR. FARAH NADZIRAH BINTI ZAINUDDIN (MMC: 60568)

MD (USU)
MEDICO LEGAL SECTION, MEDICAL PRACTICE DIVISION
MINISTRY OF HEALTH
 23

CASE STUDY 3
BY: DR. MARDHIAH BINTI MOHD SUFIAN

Case summary:
The patient was a 38 years old lady, primigravida at 37 weeks and 2 days. She was
admitted to the hospital with a complaint of leaking liquor and she delivered her baby two
days later via vacuum assisted delivery (VAD). She suffered a primary postpartum
haemorrhage with multiple vaginal wall tears requiring sutures and repair. Both mother and
baby were allowed to be discharged two days later. However, the patient pulled out gauze
from her vaginal orifice five months later. She brought the evidence to Klinik Kesihatan. She
was then referred to a tertiary hospital for endometritis and treated with antibiotics.

Inquiry findings:
The medical staff conducting the VAD was not the same person performing the repair.
The perineal repair was done twice by a different medical personnel.
Documentation was not done by the personnel who were directly involved in the
patient's delivery.
No proper documentation regarding examinations, procedures done or swab counts by
the Medical Officers or Specialists (both Paediatric and Obstetric & Gynaecology
teams).
The gauze was most likely left in-situ during her delivery process. Based on the picture
provided by the complainant, it appears to be the same length and appearance as those
being used in the hospital.

Learning points:
A checklist for proper swab counts should be implemented in the labour room to avoid
any miscounts and retained gauze.
The person in-charge in labour suites should be among trained nurses.
Documentation should be done by the respective attending medical personnel.

DR. MARDHIAH BINTI MOHD SUFIAN (MMC: 68970)

MD (CHARLES UNIVERSITY IN PRAGUE)
MEDICO LEGAL SECTION, MEDICAL PRACTICE DIVISION
MINISTRY OF HEALTH
 24

MEDICO LEGAL STATISTICS

BY: DR. SURENTHIRAN A/L PANJANATHAN

The role of the Medico Legal Section (CML) is to manage medico legal cases involving
public healthcare facilites in the Ministry of Health Malaysia. The section is divided into four
sectors – Malpractice Sector, Medical Jurisprudence Sector, Policies, Operations and
Standards Sector and Surveillance and Information Sector.

Medico Legal Complaints

In 2022, 234 medico legal complaints were registered. A total of 117 new cases were
presented in the Ex Gratia Meeting and 65 (55.56 percent) cases were recommended for
compensation. The Key Perfomance Indicator (KPI) for 2022 was Percentage of Resolved
Medico Legal Cases with Compensation Claims in MOH Healthcare Facilities. Throughout
the year, a total of 84.4 percent of medico legal complaints were resolved within 365 days
from the date of complaint until the Ex Gratia Meeting review.

Medico Legal Litigation

CML and AGC combine their efforts in managing medical malpractice litigation cases filed
against MOH healthcare facilities. CML provides technical input, advise on case
management, coordinates preparation of documents for out of court settlements and
facilitates in identifying Expert Witness candidates. A total of 81 medical malpractice
litigation cases were filed against MOH in 2022.
 25

MEDICO LEGAL STATISTICS

Damages Awarded

Table 1 shows the amount of compensation paid for both ex-gratia and litigation from the
year 2018 to 2022. In 2022, the total payment was RM 4,752,469.20.
 26

MEDICO LEGAL SECTION ACTIVITIES

BY: DR. HASNUR SYAREENA BINTI HASSAN

ENGAGEMENT ON MANAGEMENT OF MEDICO LEGAL CASE WITH UNIVERSITY

MALAYA MEDICAL CENTRE

An engagement took place between representatives from the Department of Medical

Development & Practice and the Department of Legal at the University Malaya Medical
Centre, as well as the Medical Practice Division of the Ministry of Health, on February 14,
2022. The discussion and experience-sharing session focused on the management of
medico legal cases within the Ministry of Health.
 27

MEDICO LEGAL SECTION ACTIVITIES

MANAGEMENT OF MEDICO LEGAL LITIGATION CASE MEETING WITH ATTORNEY

GENERAL’S CHAMBER

The Medico Legal Litigation Cases Meeting took place on May 18, 2022, during the COVID-
19 pandemic as a hybrid session. The meeting was attended by the Federal Councils from
the Attorney General’s Chambers, State Legal Officers, Medico Legal Unit Coordinators
from State Health Departments, and Officers from the Medico Legal Section. This meeting
serves as a platform for discussing, seeking solutions, and further clarifying issues that arise
in handling medico legal litigation cases at all levels within the Ministry
 28

MEDICO LEGAL SECTION ACTIVITIES

MEDICO LEGAL CASES SURVEILLANCE MEETING

The objectives of this meeting are to improve the healthcare services provided by healthcare
workers in the Government's healthcare facilities and to reduce the occurrence of medico
legal cases. The focus is primarily on discussing the issues and factors contributing to
medico legal cases, as well as suggesting remedial steps to prevent similar recurrences in
the future. Over the past two years, two meetings have been held involving the Kuala
Lumpur and Putrajaya State Health Departments and the Oral Health Program within the
Ministry of Health

KUALA LUMPUR AND PUTRAJAYA HEALTH STATE DEPARTMENT

24 MARCH 2021

ORAL HEALTH PROGRAM, MINISTRY OF HEALTH 30 AUGUST 2022

 29

MEDICO LEGAL SECTION ACTIVITIES

INDEPENDENT INQUIRY COMMITTEE TRAINING COURSE

The Independent Inquiry Committee Training Course was held from May 31st to June 1st,
2022, at the Adya Hotel in Langkawi. The participants were MOH's Specialists and
Consultants from healthcare facilities in the North Zone, who were elected as Chairpersons
of the Independent Inquiry Committee Meetings. The objectives of the training were to
provide exposure to the expectations of a Chairperson and to enhance skills in managing
the Independent Inquiry Meetings, addressing complainants, and preparing high-quality
reports.

ADYA HOTEL, LANGKAWI

31 MAY 2022 - 1 JUNE 2022
 30

MEDICO LEGAL SECTION ACTIVITIES

TECHNICAL MEETING ON MANAGEMENT OF MEDICO LEGAL CASES

Three series of Technical Meetings have been held since 2021. The participants in these
meetings were the Medico Legal Coordinators from the State Health Departments and
officers from the Medico Legal Section, Medical Practice Division. The objectives of the
meetings are to improve efficiency in managing medico legal cases at all levels. Additionally,
this meeting serves as a platform for discussing the issues and problems encountered in
handling medico legal cases within the Ministry of Health.

23 FEBRUARY 2021
Technical Meeting was organised as a hybrid session during pandemic COVID-19
 31

MEDICO LEGAL SECTION ACTIVITIES

TECHNICAL MEETING BIL. 1/2022 HEALTH INFORMATICS CENTRE 27 APRIL 2022

 32

MEDICO LEGAL SECTION ACTIVITIES

TECHNICAL MEETING BIL. 2/2022 GRAND PUTERI HOTEL, KUALA TERENGGANU 12 - 13

OCTOBER 2022
 33

MEDICO LEGAL SECTION ACTIVITIES

MANAGEMENT OF MEDICO LEGAL COMPLAINT COURSE

The objectives of the course were to train the Medico Legal Unit Officers from hospitals,
District Health Offices, and State Health Departments on managing medico legal cases in
accordance with guidelines. This training covered handling inquiry meetings as secretariats
and dealing with complainants, as well as preparing quality reports. Additionally, the course
served as a platform to discuss potential issues that might arise during the management of
medico legal cases.

Two sessions were successfully organized by the Medico Legal Section. The first session
took place on 5-6 April 2021, at Tenera Hotel in Bangi, with participants being Medico Legal
Unit Officers from Selangor. The second session was held on 11-12 October 2022, at Grand
Puteri Hotel in Kuala Terengganu, focusing on Medico Legal Unit Officers from Terengganu.

5 - 6 APRIL 2021 TENERA HOTEL, BANGI

 34

MEDICO LEGAL SECTION ACTIVITIES

11 - 12 OCTOBER 2022
GRAND PUTERI HOTEL, KUALA TERENGGANU
 35

MEDICO LEGAL SECTION ACTIVITIES

GUIDELINES ON THE MANAGEMENT OF MEDICO LEGAL LITIGATION IN MINISTRY

OF HEALTH WORKSHOP

The workshop took place on 7-9 April 2021, at the Movenpick Hotel and Convention Centre
KLIA, Sepang. It was attended by Federal Counsels from the Attorney General’s Chambers,
Ministry of Health Legal Officers, Medico Legal Unit Coordinators from State Health
Departments, and officers from the Medico Legal Section.

The objectives of this workshop were to gather relevant stakeholders to provide opinions,
review, discuss, and improve the new guidelines before finalization. This guidelines are
intended to serve as a reference for Ministry of Health administrators and healthcare
providers in managing medico legal litigation.
 36

MEDICO LEGAL SECTION ACTIVITIES

DIALOGUE WITH THE MEDICAL PROTECTION SOCIETY

Dialogues between The Medical Protection Society (MPS) and the Ministry of Health
Malaysia were held in both 2021 and 2022. These dialogues were coordinated by the
Medico Legal Section. They encompassed sharing sessions and discussions on recent and
pertinent developments in the medico legal landscape within the United Kingdom, Asia-
Pacific, and regionally.

2 JULY 2021
Chaired by the former Minister of Health Malaysia, YB Datuk Seri Dr. Adham bin Baba
 37

MEDICO LEGAL SECTION ACTIVITIES

6 SEPTEMBER 2022
Chaired by the Director of Medical Practice Division, YBrs. Dr. Mohamed Iqbal bin Hamzah
 38

MEDICO LEGAL SECTION ACTIVITIES

MEETING WITH THE MALAYSIAN BAR COUNCIL

A virtual meeting with The Malaysian Bar Council was held on 25 January 2021, chaired by
the former Director of the Medical Practice Division, YBrs. Dr. Ahmad Razid bin Salleh. The
purpose of the meeting was to address concerns raised by the Malaysian Bar Council
regarding the challenges faced by private lawyers in obtaining medical reports from Ministry
of Health healthcare facilities
 39

MEDICO LEGAL SECTION ACTIVITIES

CONTINUOUS MEDICAL EDUCATION (CME)

5 JANUARY 2022
‘Pengurusan Tatatertib Kes Medico Legal’ by the MOH Integrity Unit
 40

MEDICO LEGAL SECTION ACTIVITIES

CONTINUOUS MEDICAL EDUCATION (CME)

4 NOVEMBER 2022
“Proses dan Prosedur Penggubalan Akta’
by the Deputy Director of Medical Legislation Section, Medical Practice Division
 41

MEDICO LEGAL SECTION ACTIVITIES

ATTACHMENT PROGRAMME IN MEDICO LEGAL SECTION

The Medico Legal Section received requests from healthcare administrators and providers in
MOH facilities and state health departments for attachments within the Medico Legal
Section. Eleven attachment sessions were organized in 2022, attended by 18 Medical
Officers and a Public Health Specialist from Selangor, Kedah, and Penang.

The objectives of the attachment program were to provide exposure and training to
healthcare administrators and providers involved in the management of medico legal cases
at MOH facilities and state health departments. The aim was to enhance the effectiveness of
handling such cases by the officers. Participants were rotated through all sections/units
within the Medico Legal Section and were required to engage in all activities, including case
studies for presentation at the end of the attachment program.
 42

MEDICO LEGAL SECTION ACTIVITIES

 42

PUBLICATION

GUIDELINES ON THE MANAGEMENT OF MEDICO LEGAL LITIGATION IN

MINISTRY OF HEALTH MALAYSIA 2023
 EDITORIAL BOARD

ADVISOR
DR. AHMAD FAREED BIN A RAHMAN

EDITORS
DR. NOR AZIZAH BINTI MOHAMED YUSUFF
DR. HASNUR SYAREENA BINTI HASSAN

CONTRIBUTORS
DR. NOR AZIZAH BINTI MOHAMED YUSUFF
DR. HASNUR SYAREENA BINTI HASSAN
DR. SURENTHIRAN A/L PANJANATHAN
DR. TAN CHIOU SHEUE
DR. FARAH NADZIRAH BINTI ZAINUDDIN
DR. MARDHIAH BINTI MOHD SUFIAN
DR. CHAN LEE LEE
DR. SHARON CHIN LU YIN
DR.GABRIEL TANG PEI YUNG

CONTACT US:
MEDICO LEGAL SECTION
MEDICAL PRACTICE DIVISION
MINISTRY OF HEALTH
LEVEL 2 & 4, BLOCK E1, COMPLEX E
FEDERAL GOVERNMENT ADMINISTRATIVE CENTER
62590 PUTRAJAYA
TEL: 03-88831191
EMAIL: medicolegalkkm@moh.gov.my
WEBSITE: https://hq.moh.gov.my/medicalprac/