MEDICO-LEGAL ISSUES IN MEDICINE MMA Symposium - Future Challenges for Healthcare in Malaysia 18th January 2009 Sunwa

1. MEDICO-LEGAL ISSUES IN MEDICINE MMA Symposium -� Future Challenges for Healthcare in Malaysia�18th January 2009Sunway Resort Hotel & Spa

2. The Law Laws are of two types Statutory laws which are enacted by the legislators Judge-made laws which are laid down by the courts.

3. Significant recent changes in statutory laws and judge-made laws

4. Current Issues

5. Restating the Standard of Care � Judge-made Law Shift in judicial opinion Foo Fio Na v Dr Soo Fook Mun & Anor, FC [2007] 1 MLJ 593 Bolam principle ? shifted to Rogers v Whitaker principle

6. Restating the Standard of Care � Judge-made Law Bolam v Friern Hospital Management Committee [1957] 2 All ER 118 Standard of care is whether doctor acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. Rogers v Whitaker [1992] 175 CLR 479 The standard of care is subjective to that particular doctor and not determined by reference to the practice followed or supported by a responsible body of medical opinion.

7. The Effect of the Shift The Standards expected in relation to disclosure of risks would be decided by the courts not left to the opinion of the medical profession Expanded disclosure of information during consent-taking Restating the Standard of Care � Judge-made Law

8. Restating the Standard of Care - Legislation The Private Healthcare Facilities & Services Act 1998 Introduced various statutory duties on registered private healthcare centres Wide-ranging areas � includes equipment and facilities

9. Restating the Standard of Care - Legislation The Effects of the Act on the Standard of Care Applied by the Civil Courts Question If the patient is injured because of a failure to comply with the statutory duties in the Act and its regulations, will this infer a private right of action in negligence? Answer It is possible.

10. Criminalisation of Doctors � through legislation The Private Healthcare Facilities & Services Act 1998 and its associated regulations Breach of statutory duties results in the commission of a criminal offence 2 cases in 2008 1 doctor jailed for 3 months as he was unable to pay the fine of RM120,000 for failing to register his clinic Another doctor fined RM15,000

11. Criminalisation of Doctors The jurisdiction of the Medical Council is invoked once there is a criminal conviction in Malaysia punishable by imprisonment Section 29(2)(a) of the Medical Act 1971

12. The Medical Council Disciplinary proceedings are under the Medical Act 1971 Council composed of medical practitioners Composition and procedure to be revisited Amendments proposed to the Medical Act � includes lay people to sit during the disciplinary hearings

13. The Judicial System

14. The New Fast Track System

15. Taking Stock The 21st Century Patient Can benefit from laws that are more patient-centric Has more access to information � internet Likely to be more cost-conscious May be a foreigner seeking treatment in Malaysia The 21st Century Doctor Is faced with the uncertainties in the law May be feeling over-regulated May not be equipped to deal with the recent demands

16. Taking Stock Good News - Doctors are still most trusted!

17. The Future No national comprehensive statistics to capture medico-legal cases. Obvious Questions: Should we expect more consent claims? Should we anticipate a drop in the number of doctors in the riskier specialities? Should we expect more extensive and meaningful patient-doctor discussions? Should we expect higher standards of healthcare?

18. Too soon to make any real conclusions on the impact of the changes in the law

19. THANK YOURaja Eileen SorayaMessrs Raja, Darryl & LohAdvocate & SolicitorHigh Court of Malaya