Health law lecture for medical student

1. Health Law and Ethics 1
PROF KULENTHRAN ARUMUGAM
MBBS (SPORE); FRCOG ( Lond) MD; PHD; DIP Epid ( Lond); LLB Hons (Lond)
Scope of Health Law and Ethics Lectures 1 to 4
 Understanding the Malaysian Legal system
 The types of laws as it affects the practitioner: civil, criminal
 Professional conduct and The Medical Act 2012
 Consent
 Ethics and essential ward behavior
 L plate test
Health Law 1
 The Malaysian legal system in brief : the types of laws and the Court
system
 Civil law affecting the medical profession.
Assault and battery
The law of torts
Tort of invasion of privacy
The tort of Negligence:
Duty of care, Standard of Care, Causation and Damage
 Criminal law affecting the medical profession.
Tort - wrongful act resulting to legal liability
Ethics and law
14 year old daughter. Severe mental and
physical disability but mobile. Menstruation is
a `horror’ every month to manage. Parents
plead with me to do a hysterectomy

2. The Malaysian Legal System
Various laws
 Constitutional law
 Criminal law
 Private law
civil law e.g. tort, contract, trusts,
family law
 Statutory Law ( MMC proceedings; Medical Act 1971)
 Shariah Law
The Hierarchy of Courts
 Federal Court
 Court of Appeal
 High Court 1 million; murder
 Sessions Court up to 1 million,
 Magistrates Court < 25,000
 Juvenile Court
Only two bites at the cherry
Judge’s decision
 Findings of fact
 The legal problem at hand
 Statement on the principle of law applicable to the
legal problem at hand
 A judgement based on the above
Ratio decidendi

3. Doctrine of judicial precedence
 Obliged to follow the decisions of previous cases
Federal Court ?
 Lower Courts follow the higher Courts
 If no precedence, judge decides as he thinks fit
Civil and Criminal Law
Scope
 Civil Law
 Law of tort : A wrongful act or omission not authorized by law
 assault and battery
 invasion of privacy
 negligence
 Criminal law (Penal Code)
 assault, causing detah by gross negligence
A note:
Criminal: The accused / Government of Malaysia
Civil:The defendant / the plaintiff
MMC proceedings: Complainant / Respondent
LAWS OF MALAYSIA
ONLINE VERSION OF UPDATED
TEXT OF REPRINT
Act 574
PENAL CODE
As at 1 February 2018
Assault
 Reasonable apprehension of immediate infliction of a force unto his
person (including words)
NB: no bodily contact
 The effect on the plaintiff : he must feel reasonable apprehension
 case of forceps delivery

4. Battery
 Intentional and direct application of force to another person without
the persons consent
 Mental state of the defendant : intention
 Contact: any physical contact
touching and hostile touching
e.g. per rectal examination
the defendant (doctor) understands that the plaintiff objects to his actions
Consent, consent, consent
Tort of invasion of privacy
“the invasion of privacy of a female in relation to her modesty, decency and
dignity to be a cause of action in tort”
 Lee Ewe Poh v Dr Lim Teik Mann & Anor [2011] 1 MLJ 835
The Law of negligence
The elements
Duty of
care
owed
Standard
of care
Causation
Damages
but not too
remote

5. Duty of Care
Donoghue V Stevenson 1932
 Facts of the case
 You must take reasonable care to avoid acts or omissions which you can
reasonably foresee would be likely to injure your neighbour.
 In law `neighbour’ are persons who are so closely and directly affected
by my act that I ought reasonably to have them in my contemplation as
being so affected when I am directing my mind to those acts or omissions
The medical student/intern?
 Nettleship v Weston 1938
 Plaintiff was teaching his friend to drive. Learner driver friend drove
negligently and injured plaintiff.
 Held: A learner driver must drive in a manner as a driver of skill, experience,
and care. His ` incompetent best’ not sufficient to escape liability
The junior doctor
Wilsher versus Essex Health Authority 1978
 Premature child. Junior doctor inserted catheter into vein instead or
artery. Blindness.
 Held: the standard of care will be related to the post of the defendant not
his individual level of competence or incompetence – it was a post filled
with the post of a skilled and competent doctor
The elements Duty of
care
owed
Standard
of care
Causation
Damages
but not too
remote

6. The reasonable man’s standard
Bolum v Frein Hospital 2 All ER 1957
 Facts of case
 A doctor is not guilty of negligence if he has acted in accordance with a
practice accepted as proper by a responsible body of medical men
skilled on that particular art
 The reasonable man standards
Standard of care
 The test is the standard of the ordinary skilled man exercising and
professing to have that skill. A man need not possess the highest expert skill
…….… it is sufficient that if exercises the ordinary skill of a ordinary
competent man exercising that particular art
 Diagnosis and treatment
 Informed consent
The elements
Duty of
care
owed
Standard
of care
Causation
Damages
but not too
remote
Did the defendant doctor’s action cause the damage
But for test
But for the negligence of the defendant,
could the injury still have occurred just the same

7. But for test
Barnett v Chelsea and Kensington 1969
 Facts: Husband went to emergency Department
with severe vomiting. Saw the nurse. Contacted
doctor. Doctor told the nurse to send him home .
Died after a few hours at home.
 Cause of death: arsenic poisoning
Held: breach in duty did not cause the
death. He would have died just the same
The elements
Duty of
care
owed
Standard
of care
Causation
Damages
but not too
remote
Remoteness of damage
 A diabetic patient suffers from a skin disease
called psoriasis. The doctor prescribes a steroid
drug. Patient suffers form gangrene of his foot.
Patient sues.
 Expert evidence: no relation between steroids
and gangrene of foot
 Plaintiff will fail in his case.
But the law has evolved
Failure to inform the risks as a criteria for
falling below the standard of care
expected

8. The elements
Duty of
care
owed
Standard
of care
Causation
Damages
but not too
remote
Informed consent
Health Law 3
Who pays?
vicarious liability
Vicarious liability
 No vicarious liability for criminal offences
 For civil liability : yes and no
Vicarious liability of the Institution?
yes and no
Salmonds formulation:
In must be an act being done (albeit wrongly)
`in the course of employment’
•An unauthorised (wrongful) mode of doing
some act authorised by the master
• the act must be closely connected with what
he is authorised to do

9. `did he go on a frolic of his ownʻ
Nurse and the warming of blood
Warning as a student
Do not go on a frolic of your own
How about medical students?
Section 34A Medical Act 1971
 Notwithstanding anything to the contrary in this Act it shall
be lawful for any person who is pursuing a course of study
in medicine or surgery in any University established in
accordance with the provisions of the Universities and
University Colleges Act 1971…
Section 34A
… to carry out, in pursuance of the course of study, any investigation, examination
or treatment of patients in any hospital, clinic, Health Centre or other Institution
which is approved by the Minister;……. provided that the
investigation, examination or treatment is carried out by the person under
the control and supervision of a fully
registered medical practitioner ……

10. Warning about doing locum
Medical student or Intern
noun British English
a person who stands in temporarily for someone else of the same profession,
especially a cleric or doctor.
Definition
Locum
In the High Court of Malaya/Borneo at Ipoh
Suit No. ………. of 2005
Between
Ms XYZ ………………… Plaintiff
And
Dr ABC ………………… Defendant
THE HOUNOURABLE MR JUSTICE……………CHIEF JUSTICE OF MALAYA,
IN THE NAME OF THE YANG DE PERTUAN AGONG
To ………. Dr ABC
We command you that within eight days after service of
this writ on you, inclusive of the day of such service,
you do cause an appearance to be
entered for you in a cause at the suit of ……….
Criminal Law

11. Elements of criminal offence
 Actus reus
 Mens rhea
Assault and battery
 Assault: Section 351:Whoever makes any gesture or any preparation,
intending or knowing it to be likely that such gesture or preparation will cause
any person present to apprehend that he ……is about to use criminal force to
that person, is said to commit an assault.
 Imprisonment for 3 months or a fine of 1000 MYR or both
Doctors do get caught
Section 304 A: Causing death by gross
negligence
Whoever causes the death of any person, by doing any rash or negligent act
not amounting to culpable homicide, shall be punished with imprisonment for
a term which may extend to two years or with fine or with both.
 May arrest without warrant
 Bailable offence
 Imprisonment for 2 years , or fine, or both

12. R v Adomako [1994] 3 WLR 288
House of Lords
 In R v Adomako, an anaesthetist, took over half-way a patient undergoing an
eye surgery. Within about half an hour of taking over, the endotracheal tube
was dislodged but he did not recognise it. It only came to light when the
resuscitation commenced because of a cardiac arrest.The patient
subsequently died.
 Issue: how far his conduct must depart from accepted standards to be
considered as criminal
Locum GP from India is jailed for manslaughter in UK
after failing to spot diabetic ketoacidosis
BMJ 2013;346:f1042
Mr. Fellows, a painter and decorator, had a history of anxiety and
depression but no history of diabetes. He had been working
outside when he became thirsty and started drinking large
quantities of water.
When his condition worsened, his mother, who thought he had
sunstroke, phoned the clinic. She told a triage nurse that he
was “muddled and mumbling,” his breathing was erratic, his
eyes were sunken, and his breath smelled “like pear drops.” Dr
Kovvali made a house call.
She had specifically asked Dr Kovvali whether her son had
diabetes, but he shook his head.
He subsequently died
Held
“That was a gross breach of your duty of care.
An expert has called your decision ‘appalling.’ I
agree. It was clearly criminally negligent, and
a wholly preventable death followed.”
Is this what you really want?

13. Doing unnecessary surgery
 Ten patients had undergone needless operations for breast surgery
after the breast surgeon misrepresented biopsy results and
exaggerated the risks of cancer
 convicted for doing “extensive, life changing operations for no
medically justifiable reason.”and “ wounding with intent”.
 The judge remarked that surgeon’s motives “may never be known,”
but he insinuated that financial gain played a role. “In pursuit of your
…… material rewards,”
 He told the surgeon, “you deliberately preyed on their worst fears,
either by inventing or deliberately exaggerating the risk that they
would develop cancer.”
 Received 15 years jail.
Causing miscarriage
 Section 312 Causing miscarriage
 Section 314 Death caused by an act done with intent to cause
miscarriage
Causing miscarriage
312.Whoever voluntarily causes a woman with child to
miscarry shall be punished with imprisonment for a term
which may extend to three years or with fine or with both;
and if the woman is quick with child, shall be punished
with imprisonment for a term which may extend to
seven years, and shall also be liable to fine.
Explanation—A woman who causes herself to miscarry is within the
meaning of this section.
Exception
 Exception—This section does not extend to a medical practitioner registered
under the Medical Act 1971 [Act 50] who terminates the pregnancy of a woman
if such medical practitioner is of the opinion, formed in good faith, that the
continuance of the pregnancy would involve risk to the life of the pregnant
woman, or injury to the mental or physical health of the pregnant woman,
greater than if the pregnancy were terminated.

14. Statuary Law
Child Act 2001 Section 27
Duty of medical officer or medical
practitioner
Section 27.1
 If a medical officer or a registered medical practitioner believes on reasonable
grounds that a child he is examining or treating is physically or emotionally
injured as a result of being ill-treated, neglected, abandoned or exposed, or is
sexually abused he shall immediately inform the protector
Consequences
 Section 27.2:
 any medical practitioner or registered practitioner who fails to comply
with sub-section 1 commits an offence and shall on conviction be liable
to a fine not exceeding five thousand ringgit or to imprisonment not
exceeding two years or both
Thank you