Consent and The Private Healthcare Facilities and Services Act 1998 and the Subsidiary Legislation Made Thereunder

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Darcy Fitzgerald
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1 Consent and The Private Healthcare Facilities and Services Act 1998 and the Subsidiary Legislation Made Thereunder By KB Karthi Advocate & Solicitor Kuala Lumpur

2 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

Private Healthcare Facilities) Regulations 2006 The Private Healthcare

3 Consent Under Regulation (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;

4 contd (b) (c) if the patient is mentally or physically disable (sic), the spouse, parent or next of kin; or if the patient is unmarried and below eighteen years of age, the parent or guardian.

5 47(3) Consent shall be in writing

6 Consent is an intellectual and mental exercise.

7 If the patient is physically disabled but of sound mind - Consent from the spouse, parent or next of kin? C est bizarre!

8 Even a Patient of Unsound Mind often has Legal Rights, including to Refuse Treatment.

9 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.

10 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.

to testify unless he is prevented by his condition from

11 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.

12 Consent in Writing? The Penal Code, s 89 consent, either express or implied

13 Consent to Sexual Intercourse The Penal Code no mention of written consent

14 The Penal Code: Consent by Minor to Sexual Intercourse Age of consent 16 years (lower if married and having sexual intercourse with husband)

15 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.

16 The Penal Code s 90 (c) a consent is not a consent as is intended by any section of this Code if the consent is given by a person who is under 12 years of age, unless the contrary appears from the context.

17 Consent by Proxy a Fig Leaf Little support for it at common law.

18 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?

19 contd Where there is conflict between parent and guardian? Where there is trouble within the family? Where the treatment is not lifesaving?

20 Dispensing with Consent Regulation 48(1) where any delay would endanger the life of a patient.

21 Regulation 48(1) Required consensus of the surgeon and another registered medical practitioner

22 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?

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

24 The Mature Minor in Malaysia No right at all to accept or refuse treatment? See, for example, the Penal Code

25 No Corresponding Provision Regarding Consent in the Case of Private Medical Clinics and Private Dental Clinics The Public Sector Hospitals are not affected

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

27 Thank You

THE HEALTH CARE PROFESSIONS COUNCIL OF SOUTH AFRICA GUIDELINES FOR GOOD PRACTICE IN THE HEALTH CARE PROFESSIONS

THE HEALTH CARE PROFESSIONS COUNCIL OF SOUTH AFRICA GUIDELINES FOR GOOD PRACTICE IN THE HEALTH CARE PROFESSIONS SEEKING PATIENTS INFORMED CONSENT: THE ETHICAL CONSIDERATIONS BOOKLET 9 PRETORIA MAY 2008