Consent and The Private Healthcare Facilities and

Services Act 1998 and the Subsidiary Legislation Made

Thereunder

By KB Karthi

Advocate & SolicitorKuala Lumpur

Legislation

The Private Healthcare Facilities and Services Act 1998

The Private Healthcare Facilities and Services (Private Hospitals & Other Private Healthcare Facilities) Regulations 2006

The Private Healthcare Facilities and Services (Private Medical Clinics or Private Dental Clinics) Regulations 2006

Consent Under Regulation 47

47 (1) – “Valid consent from a patient before any procedure or surgery is carried out on the patient” must be obtained.

47(2) - Valid consent shall be obtained from:

(a) the patient;

contd

(b) if the patient is mentally or physically disable (sic), the spouse, parent or next of kin;or

(c) if the patient is unmarried and below eighteen years of age, the parent or guardian.

47(3) Consent “shall be in writing”

Consent is an intellectual and mental exercise.

If the patient is physically disabled but of sound mind -

Consent from the spouse, parent or next of kin? C’est bizarre!

Even a Patient of Unsound Mind often has Legal Rights, including

to Refuse Treatment.

The Contracts Act 1974

Illustration (a) to section 12 –“A patient in a mental hospital,

who is at intervals of sound mind, may contract during those intervals.”

Explanation to Section 118 of the Evidence Act 1950

“A mentally disordered person or a lunatic is not incompetent to testify

unless he is prevented by his condition from understanding the questions put to him and giving

rational answers to them.”

Re C (adult: refusal of medical treatment [1994] 1 All ER 819)

Court upheld refusal by sixty-eight year-old prisoner suffering from

paranoid schizophrenia of amputation of gangrenous leg

intended to save his life.

Consent in Writing?

The Penal Code, s 89 –“consent, either express or implied”

Consent to Sexual Intercourse

The Penal Code – no mention of written consent

The Penal Code: Consent by Minor to Sexual Intercourse

Age of consent – 16 years (lower if married and having sexual intercourse

with husband)

The Penal Code, s. 89 – consent for the benefit of a child under twelve years of

age or person of unsound mind

“Consent, either express or implied, of the guardian or other person having

lawful charge of that person.”

The Penal Code

s 90 (c) a consent is not a consent asis intended by any section ofthis Code if the consent isgiven by a person who isunder 12 years of age, unlessthe contrary appears from thecontext.

Consent by Proxy – a Fig Leaf

Little support for it at common law.

Consent by Proxy

Where a married couple are separated but not divorced yet?

Where there is more than one spouse, child or guardian?

Where there is conflict between parent and child?

contd

Where there is conflict between parent and guardian?

Where there is trouble within the family?

Where the treatment is not life-saving?

Dispensing with Consent

Regulation 48(1) – where “any delay would endanger the life of a patient”.

Regulation 48(1)

Required – “consensus of the surgeon and another registered

medical practitioner”

Regulation 2

Surgeon – “means a registered medical practitioner with qualifications, training and experience in the discipline of surgery recognised by the Director General and shall include specialists in all surgical specialities”.

No place for the non-surgeon even for minor procedures?

Refusal of Lifesaving Treatment

At common law, an adult patient of sound mind has the right to refuse it.

The Mature Minor in Malaysia

No right at all to accept or refuse treatment?

See, for example, the Penal Code

No Corresponding Provision Regarding Consent in the Case of Private Medical Clinics and Private Dental Clinics

The Public Sector Hospitals are not affected

The Regulations regarding consent do not sit well with various other statutes and the common law

Thank You