Informed consent in medical treatment: Conflict or consensus

Medicine and Law

Volumn 25, Issue 2, 2006, Pages 319-339

  Matta, A M ^a  

^a INTERNATIONAL ISLAMIC UNIVERSITY MALAYSIA   (Malaysia)

Author keywords

Bolam test; Informed consent; Malaysia; Medical paternalism; Patient autonomy; Prudent doctor; Sidaway case

Indexed keywords

AUSTRALIA; CONFLICT; CONSENSUS; COURT; HUMAN; INFORMED CONSENT; JURISPRUDENCE; MALAYSIA; MEDICAL CARE; MEDICAL PRACTICE; MEDICOLEGAL ASPECT; REVIEW; UNITED KINGDOM; UNITED STATES;

EID: 33747081630     PISSN: 07231393     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (76)

1. There are other factors responsible for the apathetic situation, e.g., paucity of funds, inadequate infra-structure, insufficient medical and para-medical staff (putting doctors under excessive work load) and inadequate equipment and lack of research and development etc. The human rights awareness had its own share to contribute to the straining of doctor-patient relationship. The human rights awareness culminated in the adoption of the European Convention on Human Rights and the enactment of the Human Rights Act, 1998 (UK)
2. For details see R (on the application of B) v Ashworth Hospital Authority [2003] 4 All ER 319 CA in which the English Court of Appeal held that consent of the patient is not required for medical treatment given to him for a mental disorder from which he is suffering.
3. Also see F v West Berkshire Health Authority [1989] 2 All R 545
4. Re B (adult refusal of medical treatment) [2002] EWHC 429 (Fam)
5. Known after the famous case of Bolam v Friern Hospital Management Committee (1957) 1 WLR 582
6. [1985) 1 AC 871
7. Sidaway was preceded by the case of Hills v Potter [1984] 1 W.L.R 641, 652, in which it was held that the professional standard of practice applies to a doctor's duty to disclose in the same manner as it applies to duties with respect to diagnosis and treatment. Hirst J felt that the prudent patient test under informed consent would cause formidable problems and potential liabilities for the medical men (at 653)
8. See the judgments of Lord Diplock and Lord Bridge in Sidaway at pp 895 and 899 respectively
9. Id at 876
10. Ibid
11. [1997] 4 All ER 771
12. [1993] 4 Med LR 393
13. [2000] Lloyd's Rep Med 41
14. [2001] Fam 15
15. For example see Lord Chancellor (in 'The Patient, The Doctor, Their Lawyers and the Judge: Rights and Duties' (1999) 7 Med L Rev 255)
16. The Lord Chief Justice Woolf (in Lord Woolf, 'Are Courts Excessively Deferential to the Medical Profession?' (2001) 9 Med L Rev 1 at 6)
17. and the President of the Family Division of the High Court (in Re SL Adult Patient: Sterilisation [2001] Fam 15 and B v An NHS Hospital Trust [2002] EWHC 429
18. [1999] PIQR 53
19. [1990] AC 1 at 77
20. His lordship was reiterating the view which he expressed in Collins v Willcock [1984] 1 WLR 1172
21. Malette v Shulman (1990) 67 DLR (4th) 321
22. [1992] 4 All ER 649
23. Id at 662
24. Id at 665
25. citing Robbins JA in Malette v Shulman(1990) 67 DLR (4th) 321 at 336
26. [1997] 2 FCR 541 at 549
27. Secretary of State for the Home Department v Robb [1995] Fam 127
28. Gillick v West Norfolk Area Health Authority [1986] 1 AC 112, considered and approved as being part of common law in Australia in Secretary Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218
29. Re J (Specific Issue Order: Child's Religious Upbringing and Circumcision) (2000) 1 FLR 571
30. Re C (Welfare of Child Immunization) [2003] EWHC 1376 upheld by the Court of Appeal in [2003] EWCA Civ. 1148)
31. Portsmouth NHS Trust v Wyatt [2005] 1 FLR 21
32. See for example, Chelliah a/l Manickam & Anor v Kerajaan Malaysia [1997] 2 AMR 1856
33. Kamalam a/pRaman & Ors v Eastern Plantation Agency (Johore) Sdn Bhd [1996] 4 MLJ 674
34. Kow Nam Seng v Nagamah & Ors [1982] 1 MLJ 128
35. Elizabeth Choo v Government of Malaysia [1968] 2 MLJ 271
36. Chin Keow v Government of Malaysia [1967] 2 MLJ 45
37. Inderjeet Singh a/l Piara Singh v Mazlan bin Tasman & Ors [1995] 2 MLJ 646
38. [2001] 2 CLJ 4575
39. Ibid at 4582
40. See New Straits Times February 23, 2003, p F1-2.
41. It may not be out of place to mention that Datuk Dr Ismail Merican, the newly appointed Director General of Ministry of Health, Government of Malaysia, has expressed his unhappiness with the attitude of the doctors in Malaysia particularly their wearing T-shirts, shorts and slippers while attending the patients. He has mentioned the patients' complaints that the doctors do not feel happy to see them and the patients do not feel welcomed. According to the Director General "simple things go a long way in the management of patients". His advice to doctors is not to sulk because "if you sulk, the patient might feel worse"- see The Star March 30, 2005, p 8.
42. The Health Ministry has been receiving complaints against the unprofessional practices of the doctors-The Sun April 20, 2005, p6
43. It may be pertinent to note that there is no speedy and inexpensive system of administration of justice in medical negligence cases in Malaysia as envisaged for other consumer cases under the Consumer Protection Act 1999
44. [1996] 5 MLJ 193
45. This was on the lines of the English case of Hills v Potter supra n 4 where the expert neurosurgeons testified that non-disclosure of the risk of paralysis in an operation to correct a neck deformity, accorded with the standard medical practice.
46. In the case of Kamalam a/p Raman & Ors v Eastern Plantation Agency (Johore) Sdn Bhd [1996] 4 MLJ 674, which was decided about the same time by another Malaysian High Court, a departure was made from the Bolam standard of medical care when it was held that the standard of care is not determined 'solely' or even 'primarily' by reference to the opinion of the profession but must conform to the standard of reasonable care demanded by law. This could be taken to apply also to the doctor's duty to disclose risks for which the reasonable patient test would apply rather than the peer judgment by the profession. However, this is an isolated case, which has not received any further support from Malaysian courts. The Bolam approach appears to have been given doctor friendly interpretation in Malaysia in Payremalu Veerappan v Dr Amarjeet Kaur & Ors [2001] 4 CLJ 380 when mere failure on the part of the doctor to warn the patient of the risk involved in the proposed treatment was not considered negligence per se. According to the High Court, in order to constitute negligence, the non-disclosure must relate to a risk, which is real and not farfetched and fanciful.
47. [1992] 175 CLR 479 at 631
48. Id at 489
49. Ibid
50. [1999] 73 ALJR 782
51. Per Mc Hugh J at 791
52. Rogers v Whitaker [1992] 175 CLR 479 at 631; This has come to be known as 'prudent patient test'
53. Ibid
54. [2002] 205 CLR 434
55. Justice Beinjamin Cardozo in Schloendorff v Society of New York Hospital 105 N.E. 92(N.Y. 1914)
56. (1990) 497 US 261, USSC
57. 317 P.2d 1093 (1960)
58. 186 Kan. 393, 350 P.2d 1093 (1960)
59. 464 F. 2d 772 (D. C. Cir 1972)
60. See the Malaysian daily The Star March 22, 2005, p 29 and March 24, 2005, p 39 and the Samachar Com March 25, 2005.
61. New York Times February 10, 2006
62. The New York Times February 21, 2006, http://www.nytimes.com/2006/02/21/politics/21docs.html
63. New York Times February 2, 2006
64. and USA Today February 7, 2006
65. Malette v Shulman supra n 15
66. Nancy B v Hotel-Dieu de Quebec (1992) 86 DLR (4th) 385 (Quebec Superior Court)
67. [1980] 114 DLR (3rd) 1 (SCC)
68. Ibid at 13
69. [2002] All ER 449 Fam D
70. Also see Nancy B v Hotel-Dieu de Quebec supra n 48
71. Re F (mental patient: sterilization) [1990] 2 AC1
72. Re T (adult: refusal of medical treatment) [1992] 4 All ER 649
73. Re MB (an adult: medical treatment) [1997] 2 FCR541
74. Airedale NHS Trust v Bland [1993] 1 All ER 821
75. Ibid at 474
76. The word reasonably is used here to acknowledge that a doctor can not be expected to fully educate a patient about all medical knowledge involved in the case