MHLE2012 Unit 1.2 Elements of medical law and legal issues facing by helathcare providers.pptx

Introduce the elements of medical law and legal issues facing by the healthcare providers

1. Law, ethics & professionalism in healthcare MHLE 2012 UNIT 1.2 ; Elements of Medical Law & Legal Issues facing of health care providers

2. The development of Medical Law Medical Law in Malaysia has become much more prominent in the last ten years due to the increasing judicial intervention in various aspects of medical practice. Medical Law is undoubtedly a challenging legal area as it draws on a wide range of existing legal subjects including tort law, criminal law, family law and contract law.

3. The intervention of law in this area has profoundly altered the legal boundaries of what are considered acceptable conducts in issues relating to medical negligence, consent to medical treatment, organ transplant, abortion, Sterilisation euthanasia.

4. Although the law being an instrument of social regulation seeking to regulate behaviour within the society, protecting rights as well as reflecting society values, the intervention of law in the area of medicine has raised difficult legal problems due to the existence of ethical, philosophical and religious dilemmas.

5. In view of section 3 of the Malaysian Civil Law Act 1956 which provides that unless there is any written law in force in Malaysia, the courts in Malaysia shall apply the common law of England and the rules of equity as administered in England on 7 April 1956, the English common law has been a predominant source in the development of Medical Law in Malaysia due to the absence of clear and specific legislations.

6. However, the application of the said common law and the rules of equity should only be applied if the local circumstances render it to be necessary and does not violate the religious and cultural sensitivities of the Malaysian population. Thus, judicial intervention in the development of the Malaysian Medical Law in the twentieth century should adopt a holistic approach in harmonising the salient principles in the English common law with the existing religious and cultural traditions of the Malaysian population in regulating fundamental issues affecting a person’s health and well-being

7. Elements of medico legal issues Dr must do his duty in good faith, for benefit of the patient  & with consent. Good Faith refers to act with due competence, due care & due caution. Competence - The act done with possession of knowledge & skill for the intervention being done. Due Care Timely - fulfillment of medical needs of the person. Caution - Anything done without caution will be rash. To anticipate, prevent adverse consequence & deal with adverse consequences. Benefit It may be Physical, Physiological or functional

8. CONSENT   defined as agreement in sentiment, opinion, a course of action etc. Law recognizes consent as good defence for causing injury which is based on the percept that every individual knows what is best for oneself. Law cannot provide immunity against all types of criminal offences. Offences can be there completely independent of consent. Consent can be either implied or expressed which can again be oral or written.

9. Consent ( cont ) Consent should be patient’s own & he should be legally & mentally competent. No one-else is competent. Free consent:- Means consent must be free from force, coercion, fraud, & inducement. Informed consent:-It must state who is consenting to whom & for what purpose & should be given having understood nature & consequences of the act. It could be orally expressed. One has to be told about possible basic risks, likely benefits & alternatives available, irrespective of his education standard, in the language the patient understand. Consent must be recorded.

10. Consent ( cont ) Implied Consent - Consent need not be expressed or articulated. It includes consent by acts, conduct & consent presumed but never given. It is permitted in special circumstances like when patient is not competent by age, physical or mental condition, when guardian is not available & patient’s condition is life threatening (To prevent death or grievous hurt. Surrogate consent - Any body who is in valid custody of the individual is permitted to give consent

11. CRIMINAL CULPABILITY & CONSENT   Sec. 87IPC states that nothing is an offence if done, not intending or knowing by the doer that it would cause death, or grievous hurt, by the harm that may cause, if this is done with the consent of the person who got injured, the later being above 18yrs., whether expressed or implied to suffer that harm. Age of consent especially to risk harm, is 18 yrs which is the age of majority under Indian majority Act 1875. Consent for medical examination can be given by any person above 12 Yrs.

12. Sec88IPC- Nothing which is not intended to cause death is an  offence by reason of any harm it may cause – a) or intended by the doer to cause b) or known by the doer to be likely to cause to any person for whose benefit it is done in good faith c) and who has given either implied or expressed consent to suffer that harm or take risk of that harm. Sec.89IPC states that nothing, which is done in good faith for benefit of a child under 12 yrs , or insane shall be an offence if with consent either express or implied of guardian or other person having lawful charge of that person, is an offence

13. Sec90 of IPC clarifies consent given under fear,  misconception, or by an insane person or a child below 12 yrs is no consent. Sec91 clarifies that any act which is an offence by itself, independent of harm it may cause does not have any protection u/s 87, 88 & 89 IPC because consent was given by the sufferer.

14. Sec.92 covers acts done in good faith for the benefit of a  person, without his consent not being an offence, if; - it was impossible for the person to show his consent, or he was incapable of giving consent, or no guardian or other person having lawful charge of him was available in time to consent.

15. Criminal culpability: Sec82 of IPC gives total immunity from  criminal culpability to a child below 7yrs. While under section 83, a child between 7 & 12 yrs has a limited culpability.

16. MEDICAL NEGLIGENCE   Failure to follow the medical norms is negligence. Norms are case specific,situation specific & context specific. To prove negligence four (4D’s) – a) Duty to care b) Deficiency in duty c) Damage occurred to patient d ) Damage should be direct consequence of the act

17. DEATH CERTIFICATE   It should not be issued in following circumstances :- when cause is uncertain when foul play is suspected un-natural deaths.

18. Defence of Doctor in Tort cases   The concept of medical negligence in causation of injury has been 4000yrs old. First recorded malpractice suit in English law was in 1615 Evered VsHopkins In tort cases defence of Drs:- No contract between Dr & patient, Contributory negligence on the part of patient (but not considered in criminal negligence charges u/s338/304 but is a valid defence for tort cases),

19. Defence of Doctor in Tort cases ( cont )   The concept of medical negligence in causation of injury has been 4000yrs old. No injury resulting from that care as per the knowledge & experience available till date, No demonstrable link between the standard of care & the injury, I nformed consent when complications were explained, N o guarantee for cure.

20. Vicarious responsibility:- It is the responsibility fixed on another in place of the original person. A medical offr can be held responsible for any charge of negligence for his subordinates, unless other person is qualified or experience enough to do a task. A senior offr in Admn cannot be held responsible for tasks of his junior officer, independently competent to do so,& recruited/selected for undertaking such tasks unless repeatedly brought to notice of superior then senior may be held vicariously responsible for his junior’s acts of negligence.

21. Respondens Superiors:- This is the defence residence Drs/interns. Novus Actus Interveniens:- Act of God/un-foreseen/unreported turn of events. Since the event was not expected to happen hence one could not take adequate preventive measures. Therapeutic Misadventure:- the outcome of any medical Mgt. cannot be guaranteed, he cannot be held responsible as medicine is not an exact computable science

22. PRIVILEGED COMMUNICATION   Ordinarily any communication between the patient & his Dr. is governed by the Geneva code of ethics & the Hippocratic oath as not to divulged to any other person including the person’s own spouse or parents without his/her consent; unless the interests of community as whole or in major part at stake

23. M edico-legal issues within the Malaysian legal landscape R elates to a medical practitioner's duty of care and whether such a duty ought to extend to a third party, in circumstances where a patient is dependent on a spouse in arriving at a decision or where decisions are made jointly by both spouses, in respect of treatment for one of the spouses.

24. M edico-legal issues within the Malaysian legal landscape ( cont ) I nvolves institutional liability within the public and private sectors. Recent developments, within the public sector, dictate that a director of a public healthcare facility may be held personally liable for the negligent act or omission of his/her staff notwithstanding that the tortfeasor is an employee of the Government of Malaysia. With regard to the private sector, the Malaysian apex court has shed judicial light and held that the doctrine of non-delegable duty of care may be imposed on private healthcare facilities in circumstances where the requisite features are met.

25. M edico-legal issues within the Malaysian legal landscape ( cont ) D eals with aggravated damages and the purpose of such an award in medical negligence suits