A Person’s Right as a Patient

One of the primary statutory legislation governing the practice of medical practitioners is the Medical Act 1971 (“Act 50”) and its subsidiary legislation, Medical Regulations 2017 (“2017 Regulations”).

Pursuant to section 3 of Act 50, the Malaysian Medical Council (“MMC”) has been established. The MMC is empowered under section 4 to regulate the practice of medicine. Further, the MMC is vested with authority pursuant to section 36 of Act 50 to make regulations to prescribe matters under Act 50 that are required to be prescribed and to generally carry out the objects and purposes of Act 50.

In 2019, the MMC established the Good Medical Practice 2019 guidelines containing the Ten Golden Rules of Good Medical Practice as follows:

1. Make the care of your patients your first concern.
2. Practice with kindness, empathy, professionalism and integrity.
3. Respect privacy, dignity and confidentiality of your patients.
4. Be competent and keep your professional knowledge and skills up to date.
5. Establish and maintain good relationship with your colleagues.
6. Appreciate your own professional limitations and seek opinions from colleagues.
7. Preserve patient’s autonomy and allow second opinion.
8. Avoid publicity, self-promotion and abuse of position.
9. Be conscious of cost of healthcare and appreciate patient’s limitations in paying fees.
10. Promote global health.

In support of the above, various guidelines and ethical codes were established to regulate good medical practice and at the same time to ensure that a person’s right as a patient is protected.

Among the rights of a patient which the MMC seeks to protect includes but not limited to the following:

1. Right to healthcare and humane treatment.
2. Right to choice of care.
3. Right to adequate information and consent.
4. Right to privacy and confidentiality.
5. Right to acceptable safety.
6. Right to health education.
7. Right to redress grievances.

Right to healthcare and humane treatment

The right to healthcare and humane treatment would include the right to have access to competent healthcare and treatment regardless of the background of the patient including his/her age, sex, ethnicity, religion, political affiliation, economic status or social class. This would mean that there shall be no discrimination of any sort by any medical practitioner against any patient for any reason whatsoever.

The right to health services shall be available on the basis of clinical need regardless of the ability of a person to pay and that it shall be the responsibility of the Government to ensure that every person has access to essential health services.

Right to choice of care, adequate information and consent

Next, the Good Medical Practice 2019 also provides that pursuant to a patient’s right to choice of care, a patient has the liberty to access the various options available for the same treatment as well as the right to a second opinion at any time.

A patient has the right to adequate information regarding his condition and the right to a clear, concise explanation of the proposed treatment before commencement of treatment, including the planned procedure/intervention and common complications that may arise. This will naturally involve information including but not limited to information of significant risks, side-effects, or after-effects of the proposed treatment.

While a patient might consent to a procedure after being informed in broad terms of the nature of the procedure, this consent will not amount to an exercise of choice unless it is made on the basis of relevant information and advice. Relevant information includes disclosure of possible risks which the patient ought to know and/or should know.

The High Court in Norizan Bt Abd Rahman v Dr Arthur Samuel [2013] 9 MLJ 385 referred to several landmark cases on a doctor’s duty to disclose information as follows:

“[26] In the case of Foo Fio Na v Dr Soo Fook Mun & Anor [2007] 1 MLJ 593 the Federal Court held that a doctor is duty bound by law to inform his patient who is capable of understanding and appreciating such information of the risks in any proposed treatment so as to enable the patient to make an election of whether to proceed with the proposed treatment with knowledge of the risks involved or decline to be subjected to such treatment.

[27] In F v R (1983) 33 SASR 189 at para 48 F–H of this case the scope of the duty to disclose was outlined in the following manner:

…

What is in question is the scope of the doctor's duty of care. He is required to act reasonably, not only in his actual treatment of the patient, but also in relation to the disclosure of information. In Chatterton v Gerson Bristow J held that it is the duty of a doctor to explain what he intends to do, and its implications, in the way a careful and responsible doctor in similar circumstances would have done. It is my opinion that that is a correct statement of the law, and that the duty extends, not only to the disclosure of real risks of misfortune inherent in the treatment, but also any real risk that the treatment, especially if it involves major surgery may prove ineffective.”

The Federal Court in Zulhasnimar Bt Hasan Basri & Anor v Dr Kuppu Velumani P & Ors [2017] 5 MLJ 438 further stated that the Court will now decide if the patient has been adequately advised on the risks associated with the proposed treatment for a patient’s medical condition:

“[96] On the other hand, different consideration ought to apply to the duty to advise of risks as opposed to diagnosis and treatment. That duty is said to be noted in the right of self-determination. As decided by the Australian High Court in Rogers v Whitaker and followed by this court in Foo Fio Na, it is now the courts’ (rather than a body of respected medical practitioners) which will decide whether a patient has been properly advised of the risks associated with a proposed treatment.”

After having access to all relevant information, a patient shall provide consent if he/she wishes to receive the treatment and at which available health facility to do that. If a patient refuses to receive a treatment, under normal circumstances he/she shall not be forced or compelled to receive the same. Forcing medical treatment on a competent patient who has validly refused such treatment is tantamount to an assault or battery.

However, there are exceptional circumstances where consent may not be required before the performance of medical treatment and the usual exception will be a medical emergency.

A medical emergency is defined as an injury or illness that is acute and poses an immediate risk to a person's life or long-term health. Consent is not required in emergencies where immediate treatment is necessary to save an adult person's life or to prevent serious injury to an adult person's immediate and long-term health where the person is unable to consent, subject to there being no unequivocal written direction by the patient to the contrary, or where there is no relative or any legal guardian available or contactable during the critical period to give consent.

In such circumstances, a consensus of the primary surgeon/physician (who is managing the patient) and a second registered practitioner will be obtained and the primary surgeon/physician shall sign a statement with the consent form stating that any delay is likely to endanger the life of the patient. The second registered medical practitioner must then co-sign the consent form.

In cases of a child patient, consent can be obtained from a third party such as the parents or a legal guardian.

Right to request and access to medical report

It should also be noted that generally, a patient is absolutely entitled to have access to his/her own medical report. This is provided not only under the Good Medical Practice 2019 but also provided by MMC Medical Records and Medical Reports guideline and the MMC Code of Professional Conduct 2019.

The right of access to a person’s own medical report is also recognised by the High Court in Nurul Husna Muhammad Hafiz & Anor v Kerajaan Malaysia & Ors [2014] MLJU 1922 where the Court stated the following:

“[13] The prevalent common practice among medical professionals and hospitals is to refuse to give copies of patient’s medical records unless ordered by the court to do so. This has necessitated the filing of applications by patients seeking court’s intervention to order production of the medical records. In most cases, when the application comes for hearing, the respondent throws in the towel and agrees to produce copies of the medical records sought. In a handful of cases, there is resistance and the court determines the issue to order production. This guarded conduct of the medical professionals and hospitals has caused patients to incur avoidable costs and delays by filing originating processes for an order for discovery of their medical records.

[14] This may be an opportune moment for me to revisit and reiterate the principles governing the rights of a patient to access his medical records. The Malaysian Medical Council (‘MMC’), the statutory body corporate established under the Medical Act 1971 to regulate the medical profession, recognises that patients have a right of access to their medical records. This recognition is embodied in the guideline of the Malaysian Medical Council, MMC guideline 002/2006 - medical records and medical reports (‘the guideline’).”

The court further stated that:

“[15] It is evident that the guideline was formulated after an extensive consultation process involving a broad spectrum of stakeholders in the medical services sector. And though the guideline may not have the force of law in that these are not regulations made pursuant to the Medical Act, 1971, it nevertheless has high persuasive authority …”

The extent or expectation of a patient on his/her rights to access its own medical records was also laid down by the Court as follows:

“[16] … Clause 1.7 of the guideline relates to the patient’s right to medical records and states that:

1.7. Patient’s Expectations and Rights to Medical Records It is  generally accepted that the patient should:

1. Have access to records containing information about his/her medical condition for legitimate purpose and in good faith;
2. Know what personal information is recorded,
3. Expect the records are accurate, and
4. Know who has access to his/her personal information.”

Hence, it is evident that a patient is rightfully entitled to access his/her own medical records/reports. In the event that a medical facility refuses to provide such access, a patient can always apply to a court of law for an order against said medical facility to release the relevant medical records.

The right to access a patient’s medical records comes hand in hand with the right to privacy and confidentiality. A patient’s medical records/reports are private and confidential as only the patient and individuals authorised by the patient shall have access to them. A medical practitioner and/or medical facility shall not allow access of such records or reports to any third-party unless authorised by the patient in question, or if such access is required by the enforcement of any law.

Right to privacy and confidentiality

The principle of confidentiality is essential as it assures patients that any information provided to the medical practitioner during the course of consultation or treatment will not be divulged to any other party under normal circumstances. This helps to promote the doctor-patient relationship where the patient will be inclined to provide more details to the medical practitioner.

It should also be noted that the professional duty of confidentiality covers not only what a patient may reveal to the medical practitioner, but also what the medical practitioner may independently conclude on or form an opinion of the patient’s medical condition.

Besides, the principle of privacy suggests that a patient retains the right to ensure reasonable privacy when being interviewed and examined by a medical practitioner in a medical facility.

Right to acceptable safety and health education

Further, the MMC also aims to ensure that a patient’s right to acceptable safety and right to heath education are protected. Here, a patient shall have safe and secure surroundings and a healthy environment in receiving medical care and treatment.

Right to redress grievances

Lastly, a patient’s right to grievances in any unfortunate medical incidents is also protected under Act 50 and the MMC. Regulation 38 of the 2017 Regulations provide that any complaint against any registered medical practitioner can be made in writing to the MMC where the same will be submitted to the Preliminary Investigation Committee. The MMC is also vested with disciplinary jurisdiction over all persons registered under Act 50.

In addition, a patient is always entitled to seek compensation or damages from a medical practitioner and/or medical facility via a civil claim at the court of law.

Conclusion

It is evident that the law as well as the statutory body established thereof has laid down protection on various rights entitled by a patient. It is pertinent for a patient to acknowledge the same and in the event their rights have been violated, necessary measures can be taken to address such violations, including bringing the violation to the attention of relevant authorities.