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Malayan Law Journal Articles/2014/Volume 5/The Medical Profession, Societal Demands and Developing
Legal Standards
[2014] 5 MLJ cxxxvii
Malayan Law Journal Articles
2014

THE MEDICAL PROFESSION, SOCIETAL DEMANDS AND DEVELOPING

LEGAL STANDARDS
Prof Dr Puteri Nemie bt Jahn Kassim
Department of Civil Law
Ahmad Ibrahim Kulliyyah of Laws
International Islamic University Malaysia
Bachelor of Laws (LLB (Hons)) (University of Southampton);
Master of Comparative Laws (MCL) (International Islamic University Malaysia);
Doctor of Philosophy in Law (PhD) (International Islamic University Malaysia)
and
Dr Puteri Shanaz bt Jahn Kassim
Department of Family Medicine
Faculty of Medicine and Health Sciences
Universiti Putra Malaysia
Doctor of Medicine (MD )(Universiti Sains Malaysia)
Master of Medicine (MMed FamMed) (Universiti Kebangsaan Malaysia)
The medical profession has, in the past, been accorded an unparalleled level of deference. It was perceived
as a profession that can do no wrong and had considerable powers over patients as well as regulating its
own medical practice. However, the growth of the medical profession as a public institution and the
commercialisation of medical practice have shaped the contours and behaviour of the society in demanding
greater obligations and accountability on the part of the medical profession. The increasing awareness
amongst the society on medico-legal issues as well as the growth of consumerist attitude towards the
provision of medical services has caused the medical profession to be subjected to vociferous criticism if it
does not meet the rising expectations of the society. Substandard services have not been well tolerated and
paternalistic approaches in medical treatment are considered to be outmoded and inappropriate. Judicial
interventions in medical practice have created more rights for patients and consequently, corresponding legal
duties for the medical profession to uphold. In the contemporary healthcare setting, the medical profession
will not be able to provide infallible services without attaining the highest standards of professionalism and
knowledge of the legal standards which they have to adhere. As the medical profession's obligations
transgressed into an environment dominated by societal needs and collectivist cultures, the ideals of
professionalism not only require them to have the necessary expertise, dedication, respect, compassion,
empathy, honesty, altruism, responsibility, integrity, self-improvement and accountability but also to adhere to
the demands of law and highest ethical standards.

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INTRODUCTION
The medical profession has always been seen as altruistic professionals and moral in their activities. Society
constantly perceives that in fulfilling their obligations, the medical profession will put the welfare of the
individual and society above their own. The practice of medicine and the conduct of the medical profession
should always be circumscribed by public conscience and balanced with the rights of the society.
Nevertheless, in recent years, the medical profession has been subjected to vociferous criticism by the
society. They have been accused of developing a tendency to protect their own interests at the expense of
the public they serve. Commercialisation and globalisation have been seen to undermine the fundamental
ethos of the medical profession by changing their social position and traditional values. Medicine, in many
ways, has lost its autonomy. These changes have led to a recognition that the medical profession needs to
re-examine its roles and obligations to be able to fully serve individual patients as well as meet expectations
of the society and adhere to the highest standards of professionalism.
THE MEDICAL PROFESSION IN THE EARLY AGES
In the early ages, the medical profession was placed on the highest pedestal and was considered as elitist.
At that time, medicine was a matter of mystery. The fact that the medical profession acted as healers, made
society believe that they had some kind of supernatural powers. 1Their ability to heal was not judged by their
competence to treat but rather, on their ability to communicate with gods through visions and
dreams.2Medicine was then interwoven with bonds of religion, superstition and magic. The role of the medical
profession was perceived to be united as priest, witch, and at the same time a lawgiver and judge. 3They had
considerable powers over their patients and society as well as regulating their own medical practice.
Although the role of healer remained fairly constant for the medical profession, their status and obligations
changed in response to societal needs and professionalism. Society expected them to be answerable for the
outcome of their medical treatment and they should be subjected to punishment and regulations. Laws
governing who could practice medicine and how it is to be practiced dated back to the Code of
Hammurabi.4The Code was introduced in the late 18th century BC by Hammurabi, the King of ancient
Babylon.5The rights and duties of medical men were dealt with in this Code concisely which were subjected
to harsh penalties.6For instance, punishments for failure of treatment are written as 'if a doctor has treated a
man for severe wound with a metal knife and has caused that man to die, his hands shall be cut off.' 7Further,
'if a man destroyed the eye of patrician then his own eye would be destroyed.' 8Such punishment did have a
certain deterrent effect on those who wished to join the profession, which adversely resulted in fewer persons
wanting to join the medical profession.
THE DEVELOPMENT OF ETHICAL CODES TO GUIDE PROFESSIONAL CONDUCTS
In order to encourage people to join the profession and at the same time impose some sense of
responsibility, a code of behaviour was introduced within the medical profession, which is known as medical
ethics. The origins of medical ethics can be traced back to the classic Greek culture where Plato held that
only physicians should judge the actions of other physicians. 9Aristotle, his pupil, emphasised that the only
penalty that is applicable to any wrongdoing by a physician was limited solely to injury to his reputation and
to nothing else.10Hippocrates, the ancient Greek who is often called the Father of Medicine, created an oath
regarding medical ethics, which is now widely accepted by modern physicians. Many doctors around the
globe have taken the Hippocratic Oath when they commence their practice. 11The formulation of medical
ethics has the aim of helping the doctor in clarifying his thoughts in analysing a particular problem. It paves
the way to rational decision-making for the benefit of the individual as well as the community. The
significance of the Hippocratic Oath is that it shaped the social contract between medicine and society and
became integral in the teaching of ethical principles.
The main ethical 'principle of beneficence' created by the Oath emphasised on 'the importance of to do no
harm' and 'welfare of patient to be first and paramount consideration' and this has become prevailing medical
ethos in the healthcare setting. Further, the Oath lays down certain guidelines. Firstly, it implies the need for
a coordinated instruction and registration of doctors. Secondly, it states that a doctor is there for the benefit of
his patients. He must perform to the best of his ability and refrain from causing harm. Thirdly, euthanasia and
abortion are proscribed. Fourthly, the nature of the doctor and patient relationship is outlined and lastly, the
Oath lays down the doctrine of medical confidentiality.12

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However, the archaic language of the Oath was replaced with a modernised version by the World Medical
Association and named the Declaration of Geneva in 1948. 13The modernised version was further amended in
Sydney in 1968,14which provides a basis for the International Code of Medical Ethics. The most striking
difference between the Hippocratic Oath and the modernised version introduced by the Declaration of
Geneva is that the former made the physician swear by the Greek gods and goddesses that he would uphold
the principles laid down in the Oath whereas in the latter, no reference is made to any Supreme Being. The
modern contemporary physician around the globe including Malaysia takes the pledge as set out in the
modernised version without expressing accountability to any Supreme Authority. However, Muslim doctors
practising in Malaysia and other states around the globe take a different oath as they are dissatisfied with the
wordings of the original Hippocratic Oath or the modernised version. For a Muslim, Allah SWT is the Eternal,
Supreme Authority.15His accountability is to Him only. Therefore, in January 1981, the International
Organization of Islamic Medicine adopted the 'Oath of the Muslim Doctor' which is the pledge for Muslim
doctors entering into the profession.
From the time when the Hippocratic Oath was formulated, doctors are generally regarded as having a
positive duty to do good,16which includes active promotion of good, kindness and charity to help others further
their legitimate interests by preventing or removing possible harms. The practice of medicine for quite some
time gave rise to little controversy as the medical profession has been trusted to do what is best for its
patients.17Further, the reluctance in making findings of negligence against the medical profession was due to
the fact that judges were understandably not comfortable in second-guessing the conduct and opinions of
respected professionals practising in their field of expertise. Judges faced difficulties in dealing with cases
shrouded with intricacies and technicalities, which may be beyond the comprehension of the judge who has
not undergone the rigours of medical training. Medicine being an inexact science may at times produce
outcomes that are not predictable.18Thus, to reach a just and accurate decision, the matter is best left in the
hands of the medical experts who are more capable of analysing such complex issues. In determining
whether the doctor is in breach of his duty, he is to be judged by his peers. Self-regulation seems to be well
suited for the medical profession.
PAST JUDICIAL TRENDS: THE LEAN TOWARDS PATIENT AUTONOMY
However, patients nowadays no longer want to be treated as passive recipients of medical care. There is an
increasing awareness of patients' rights and public's expectations of what the medical profession should
achieve have grown. Where once the medical profession was accorded an unparalleled level of deference,
society now expects a more egalitarian approach to this profession. This move has fundamentally changed
the behaviour of the courts. As respect for the patient's right to determine his health destiny gains
momentum, paternalistic approaches in medical treatment are considered to be outmoded and
inappropriate.19Thus, the current trend amongst the courts have been to attach greater weight to the
countervailing principle of patient autonomy and the right of self-determination as it is the right of every
human being to make decisions that affect his own life and welfare. The 'automatic presumption of
beneficence' has been dented by a large number of malpractice cases. The House of Lords' decision in
Bolitho v City & Hackney Health Authority20for instance, has signalled a greater willingness by the courts to
evaluate professional medical practice than it has shown in the past. Lord Browne-Wilkinson stated that the
court is not bound to hold that a defendant doctor escapes liability for negligent treatment or diagnosis just
because he leads evidence from a number of medical experts who are genuinely of the opinion that the
defendant's treatment and diagnosis was accorded with sound medical practice. 21His Lordship held that the
word 'responsible' used by McNair J in Bolam v Friern Hospital Management Committee22shows that the
court has to be satisfied that the exponents of the body of opinion relied on can demonstrate that such
opinion has a logical basis.'23This means that merely by showing that the defendant's action was supported
by expert medical opinion will not automatically exculpate him. The expert medical opinion in question has to
have a sufficient logical basis. Lord Browne-Wilkinson stated that before a judge can accept a body of
opinion as being 'responsible', the judge will have to be satisfied that '... in forming their views, the experts
have directed their minds to the question of comparative risks and benefits and have reached a defensible
conclusion on the matter.'24Thus, a 'responsible' view presupposes that the experts in forming their opinions
have weighed the relative risks and benefits. His Lordship further held that 'if it can be demonstrated that the
expert medical opinion is not capable of withstanding logical analysis, the judge is entitled to hold that the
body of opinion is not responsible.'25Thus, this would mean that even though there is a body of professional

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opinion sanctioning the defendant's conduct, the defendant can still be held negligent if it cannot be
demonstrated to the judge's satisfaction that the opinion relied on is reasonable or responsible. The House of
Lords' decision in Bolitho appears to do away with the usual 'rubber-stamping' of expert medical opinion.
Expert opinion now has to withstand rigorous scrutiny from the judiciary. Previously, the judiciary had not
been given much scope for intervention and had to agree that any medical treatment that accords with a
body of professional opinion is not negligent.26On the surface, it appears that Bolitho has curbed the power
delegated to the medical profession as now there is no guarantee that expert medical evidence will be
accepted even if provided.27
Similarly, the ruling of the Australian High Court in Naxakis v Western General Hospital28totally rejected the
sole application of medical opinion in determining the standard of care for a doctor's duty to advice, diagnose
and treat. Kirby J in agreeing with McHugh J reiterated that expert opinion of a fellow medical practitioner
should not be determinative on the issue of whether or not the defendant is negligent as such evidence may
stem 'from professional courtesy or collegial sympathy' 29for the defendant. Therefore, the standard of care
owed by persons possessing special skills are not determined 'solely or even primarily by reference to the
practice followed or supported by a responsible body of opinion in the relevant profession or trade.' 30Instead,
whilst evidence of acceptable medical practice is a useful guide for the courts in adjudicating on the
appropriate standard of care, the standard to be applied is nonetheless that of 'ordinary skilled person
exercising and professing to have that special skill.'31This direction of the law has recently been adopted by
the Federal Court of Malaysia in the case of Foo Fio Na v Dr Soo Fook Mun & Anor.32The Federal Court held
that the standard to be observed by medical practitioners will no longer be determined solely or even
primarily by medical practice as there will no longer be a conclusive force to medical opinion. Rather, it is for
the courts to judge what standard should be expected from the medical profession taking into account not
only medical opinion but other relevant factors surrounding the circumstances of the patient. The court was
of the view that 'there is a need for members of the medical profession to stand up to the wrong doings, if
any, as is the case of professionals in other professions. In so doing, people involved in medical negligence
cases would be able to obtain better professional advice and that the courts would be appraised with
evidence that would assist them in their deliberations.'33This point was further reiterated by Chew Soo Ho JC
in the case of Abdul Ghafur bin Mohd Ibrahim v Pengarah, Hospital Kepala Batas & Anor 34in stating that the
Federal Court had taken a paradigm shift from the salutary Bolam test as enunciated in Bolam v Friern
Hospital Management Committee35and held that the Rogers v Whitaker test as propounded in Rogers v
Whitaker36by the High Court of Australia is a more appropriate and a viable test of this millennium as 'it has
been accepted that the standard of care to be observed by a person with some special skill or competence is
that of the ordinary skilled person exercising and professing to have that special skill ... [b]ut that standard is
not determined solely or even primarily by reference to the practice followed or supported by a responsible
body of opinion in the relevant profession or trade. Even in the sphere of diagnosis and treatment, the
heartland of the skilled medical practitioner, the Bolam principle has not always been applied. Further, and
more importantly ... the courts have adopted the principle that, while evidence of acceptable medical practice
is a useful guide for the courts, it is for the courts to adjudicate on what is the appropriate standard of
care ...'37The decision of the Federal Court has obviously put a potentially onerous task for medical
practitioners, but it is nevertheless one, which the law considers as necessary. For the medical profession,
they view that it is simple justice that they, like other professionals, be judged by their own peers. For the
courts however, in not allowing them to be judged by their peers to fulfil community's expectations and
propound that infallibility of medical judgment is a thing of the past.
PRIVATISATION AND COMMERCIALISATION OF MEDICAL PRACTICE
Privatisation and commercialisation of medical practice is now a global and common phenomenon. The
healthcare sector is one of the most rapidly growing sectors in the world economy.38The lucrative market for
healthcare services has led to the mushrooming of private healthcare facilities. 39The implications of
commercialisation of medical practice may be positive as well as negative. For instance, commercialisation
of medical practice may have helped the profession in acquiring capital-intensive technology for medical
practice but the cost of drugs and medical care has tremendously increased. 40Such increase in costs may not
be a burden to rich medical tourists from developed countries but this certainly has a negative impact on the
local population who may not be able to afford expensive healthcare. 41Furthermore, the profitable privatesector medical tourism is also drawing medical resources and personnel away from the local population,

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especially when there is also a disparity in the health care system. Ultimately, when medicine is run as a
business for profit, the rise in the cost of medical care denies good medical care to the poor. 42
Commercialisation and privatisation of medical practice have also coloured the behaviour and attitudes of the
profession. Increasing emphasis on the financial aspects of medical treatment has ultimately been to the
detriment of the altruistic and humanitarian calling of the profession. 43By putting financial gain as the main
objective in providing medical treatment, the medical profession has been accused of self-interest, lack of
compassion and not adhering to a system of virtue and ethics that often requires selflessness. 44The kind of
care outlined in the Hippocratic Oath has to some extent become obsolete. Further, by paying for their
services, patients have certain expectations of what the outcome of the treatment should be. They are now
more willing to challenge doctors and hospitals if any mishaps occur. They no longer condemn mistakes
made by doctors as misadventures but as mistakes that could have been avoided if the doctor had taken
proper care. Ultimately, these aggrieved patients will resort to litigation to channel their grievances.
INCREASE IN MALPRACTICE CLAIMS AND THE DESIRE TO LITIGATE
Highly publicised medical negligence cases by the mass media have clearly stifled and undermined public
confidence towards the medical profession. The patient and society as a whole have high expectations and
at times, perhaps exaggerated expectations. Dissatisfaction with the medical profession has led to a great
increase in the number of complaints and cases brought to the courts. For instance, medico-legal complaints,
potentially medico legal cases and cases filed in Malaysian courts are showing an increasing trend.
According to the Malaysian Ministry of Health Annual Report 2010, the amount of compensation paid for
court cases has risen from RM1,224,990 in 2006 to RM5,652,242.91 in 2010. Payment for potential medicolegal cases and settled out of court have also risen from RM25,000 in 2006 to RM906,365.21 in 2010. This
means that the total compensation paid from 2006 to 2010 was RM12,919,083.12, with a noticeable increase
in the amount of payment made in 2009 from RM2,848,914 to RM6,558,608.12 in 2010. 45In a period of five
years from 2005 to 2009, 113 negligence cases involving government healthcare providers, mainly doctors,
have been settled in and out of court, of which Obstetrics and Gynaecology (O&G) accounted for 42 of them,
or 37%.46During that period of five years, a total of RM6,664,248 was paid out as compensation through court
orders and ex gratia, making it approximately RM58,000 average per case. Recently in 2011, the High Court
in Johor awarded a total of RM870,000 to a couple as compensation for the irreversible injury suffered by
their son, which resulted from negligence handling of his delivery process. 47Five to six-figure court awards are
now becoming the trend for medical negligence cases, and with the notion of binding precedent that our legal
system adheres to, it is unlikely that the number would go down in the future. While some victims undeniably
deserved large awards, these escalating numbers do not indicate a healthy trend for the country, doctors or
the society at large. The desire to litigate reflects all manners of dissatisfaction on the part of the patients with
the conduct of the medical staff. There are clearly greater demands for public accountability and continuing
performance improvement efforts are expected.48Concerns about the quality of health care and the
performance of health-care professionals have led to the development of programmes for measurement of
quality and improvement of doctors' performance, which include clinical audits, peer review and continuing
professional education.49
SOCIETY'S EXPECTATIONS IN DEMANDING HIGHER STANDARDS OF MEDICAL PROFESSIONALISM
Professionalism is the basis of medicine's contract with society. It demands placing the interests of patients
above those of the medical professional, setting and maintaining standards of competence and integrity, and
providing expert advice to society on matters of health. 50The medical profession's professional status is not
an inherent right but is granted by society and its maintenance depends on society's belief that professionals
are trustworthy.51To continuously meet the obligations expected by society, the profession must continuously
remain trustworthy. Nevertheless, the practice of medicine today is beset with unprecedented challenges and
this is common in virtually all cultures and societies. These challenges centre on increasing disparities
among the legitimate needs of patients, the available resources to meet those needs, the increasing
dependence on market forces to transform health-care systems, and the temptation for medical professionals
to forsake their traditional commitment to the primacy of patients' interests. 52In maintaining the fidelity of
medicine's social contract during these modern times, the medical profession should dedicate themselves to
the principles of professionalism, which entails not only their personal commitment to the welfare of their
patients but also collective efforts to improve the health-care system for the welfare of society. Medicine

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needs to develop a coherent and integrated approach to meet new societal demands. 53The medical
profession should depict that professionalism benefits society and they are not able to function effectively as
healers without the trust of the patient and society. The commitment of this profession should be continuously
built on morality and altruism. To achieve this, it requires a rigorous application of behavioural and ethical
standards by instilling 'core values of professionalism such as dedication, respect, compassion and empathy,
honesty, altruism, responsibility, integrity, self-improvement, magnanimity and accountability.' 54
Law has also developed to achieve coherency with moral obligations as well as expectations of society. This
is particularly evident with the introduction of various legislations to overcome the rigidness of the common
law. Considerations of policy and reasonableness of conduct by the courts in shaping the law have also
contributed to the development of a more sensitive and caring society, which in turn, have encouraged and
maintained altruistic behaviour amongst its members. For instance, in the case of Lowns v Woods,55the
Australian courts have opened up the liability of medical practitioners for negligent failure to attend and treat
non-patients in an emergency. Kirby P, on appeal found the required 'proximity' to impose a duty of care in
the above provision because the existence of such provision leads to an expectation in society that the
medical profession would comply with its terms and attend to persons in need of urgent attention. Thus, the
law should generally accord with community's expectations especially in assessing 'reasonableness of
conduct.' It should further take into account social developments and public perception of the content of a
particular duty when imposing a duty of care. The case of Lowns v Woods seems to prove that the
requirement of proximity in determining the existence of the duty of care should never be separated from the
principle of 'what is fair and reasonable'. 'What is fair and reasonable' in society is to extend proximity to
encompass a duty to attend to non-patients in an emergency. This is due to the fact that, a doctor, 'by virtue
of his training, qualification, registration, permitted by the community to become and be a member of a
relatively small group of persons in the community who alone are recognised as having the capacity and
accorded the privilege of affording medical treatment to those who require it.' 56In essence, a doctor belongs
to a noble profession of medical practice. There is a certain aura of altruism and intrinsic value. In certain
circumstances, there is an expectation among the community that a doctor will attend to a person in dire
need of attention even though he is not legally obligated to. He is expected to share his expertise for the
good of his community.
Similarly, the Court of Appeal in Kent Griffiths, Roberts and London Ambulance Services57found it just and
reasonable to impose a duty on an ambulance service who failed to attend to a casualty in the community
when a specific request was being made. The court found that it was aligning the law with public expectation
and moral sentiment. An ambulance service should be in no different position to doctors and nurses who
negligently injure a patient in a hospital as the ambulance crew can be held liable for unreasonably delaying
or withholding treatment just as they can be liable for negligent treatment. Lord Woolf insists that ambulances
must be regarded as being more akin to hospitals, doctors and nurses, rather than being equated to the
other emergency services, whose responsibilities were unconvincingly distinguished as being owed only to
the public at large.58Traditionally, ambulances were seen merely as transport services whose job was to get
casualties to hospital. Nowadays, emergency ambulances have at least one fully trained paramedic on board
and have become 'an essential part of networks of emergency clinical care' with responsibility to 'ensure that
effective treatment is delivered to people as soon as possible.' 59Thus, the ambulance service is part of the
health service and performs a function principally for the benefit of individuals rather than the public at large.
As soon as the London Ambulance Service ('LAS') accepted the 999 call, the duty to attend crystallised,
hence, rejecting the notion that the casualty must have some pre-existing status as a 'patient' of the
particular defendant.60Since there was a specific request for assistance and specific reliance upon the LAS to
avert the foreseeable risk of personal injuries, it was 'fair, just and reasonable' to impose such a
duty.61Factors such as the reasonableness of conduct and expectations of society have also been pivotal in
determining liability as mentioned by the judgment of the Malaysian Federal Court in Foo Fio Na v Dr Soo
Fook Mun & Anor62The Federal Court adopted the judgment by Callaghan J in Hajgato v London Health
Association,63who expressed his concern in stating that 'in my view however, a court has a right to strike
down substandard approved practices when common sense dictates such a result. No profession is above
the law and the courts on behalf of the public have a critical role to play in monitoring and precipitating
changes where required in professional standards.'64
CONCLUSION

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The medical profession is facing significant changes in the way the rest of society relates to it. Mass
education, mass media and mass consumerism have been putting an increasing amount of pressure on
professionals to meet rising public expectations. The medical profession needs to provide services that meet
the demands of the society and at the same time develop a new relationship with patients, acting not as
instructors but as guides, in helping to make decisions about their own health. The medical profession has to
be more accountable for the quality of care they provide and meet patients' needs. With increasing public
awareness and growth of consumerist attitudes to the provision of medical services, medical litigation and
demands for medical accountability is the current trend and will not fade away.
1 See Mason, JK & Smith, M, Law and Medical Ethics, London: Butterworths, 1994, at p 3.
2 See Bullough, V, The Development of Medicine as a Profession: The Contribution of the Medieval University to Modern
Medicine, New York: Karger Basel, 1966.
3 See Cameron, JM, 'The Medico-Legal Expert Past, Present and Future' (1980) 20 Medicine, Science and the Law, at p 3.
4 See Grauer, N, Medicine and the Law, New York: Chelsea House Publishers, 1989, at p 16.
5 Ibid.
6 The first laws mentioning malpractice were probably those outlined in this code. It contained elements of medical ethics and
laid down a system of payment, which was based on results and, to some extent, on the ability to pay and on the status of the
patient. It also tabled penalties for negligent failure, some of which were draconian to a certain extent. See Cameron, JM, 'The
Medico-Legal Expert Past, Present and Future', at p 4.
7 See Conolly, WB & Varian, JPW (edit), Handbook of Medicolegal Practice, Oxford: Butterworths, 1991, at p 48.
8 Ibid.
9 Id.
10 See Thompson, DW, The Works of Aristotle, Oxford: Clarendon, 1910.
11 With regard to medical ethics, the Oath lays down certain guidelines. Firstly, it implies the need for a coordinated instruction
and registration of doctors. Secondly, it states that a doctor is there for the benefit of his patients. He must perform to the best of
his ability and refrain from causing harm. Thirdly, euthanasia and abortion are proscribed. Fourthly, the nature of the doctor and
patient relationship is outlined and lastly, the Oath lays down the doctrine of medical confidentiality.
12 See Cameron, JM, at p 5.
13 Ibid.
14 Id.
15 See Mohsin Ebrahim, AF, Biomedical Issues: Islamic Perspective, Kuala Lumpur: Zafar Publishing, 1993.
16 This is within the principle of beneficence as discussed earlier.
17 Due to a doctor's superior knowledge and his ethical obligations to do good, the view that a doctor knows what is best for his
patient prevails. See Weiss, GB, Paternalism modernised, (1985) 11 Journal of Medical Ethics, at p 184.
18 In Mahon v Osborne[1939] 2 KB 14 at p 47, for instance, Lord Justice Goddard in the Court of Appeal held that the standard
of care is to be measured by expert evidence. His Lordship stated that 'I would not for a moment attempt to define in vacuo the
extent of a surgeon's duty in an operation beyond saying that he must use reasonable care, nor can I imagine anything more
disastrous to the community than to leave it to a jury or to a judge, if sitting alone, to lay down what is proper to do in any
particular case without the guidance of witnesses who are qualified to speak on the subject ... As it is the task of the surgeon to
put swabs in, so it is his task to take them out, and in that task he must use that degree of care which is reasonable in the
circumstances and that must depend on the evidence.'
19 As reiterated by Mr Justice Michael Kirby that, '... the days of paternalistic medicine are numbered. The days of
unquestioning trust of the patient also appear numbered. The days of complete consent to anything a doctor cared to do appear

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numbered.'
20 [1997] 4 All ER 771.
21 In determining whether a doctor has breached his duty of care towards his patient, the court has for quite some time applied
the reasonable prudent doctor test which is also known as the Bolam principle. This principle gives prominence to evidence
adduced by the medical profession on their standard practices. 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 in that particular art' ([1957] 1
WLR 582, at p 587, per McNair J). It is immaterial that there exists another body of opinion that would not have adopted the
approach taken by the said doctor. As long as there is a 'responsible body of medical opinion' that approves the actions of the
doctor, the doctor escapes liability.
22 [1957] 1 WLR 582.
23 [1997] 4 All ER 771, at p 778.
24 Id.
25 Id at p 779.
26 Due to the existence of the Bolam principle, doctors are allowed to escape liability by calling experts to testify that the
procedure adopted was consistent with practices accepted by a responsible body of medical opinion.
27 However, Lord Browne-Wilkinson did acknowledge that it would be a 'rare' or 'exceptional' case where judicial intervention
will be justified. His Lordship aptly said that: '... it will seldom be right for a judge to reach the conclusion that views genuinely
held by a competent medical expert are unreasonable. The assessment of medical risks and benefits is a matter of clinical
judgment which a judge would not normally be able to make without expert evidence.' ([1997] 4 All ER 771, at p 779)
28 (1999) 73 ALJR 782.
29 Ibid, at p 797.
30 Id, at p 798, citing Rogers v Whitaker(1992) 175 CLR 479, at p 487.
31 Id.
32 [2007] 1 MLJ 593.
33 Id, at para 69.
34 [2010] 6 MLJ 181.
35 [1957] 2 All ER 118.
36 (1992) 175 CLR 479.
37 Ibid.
38 There is clearly a growing recognition that healthcare is a big business with an estimated annual global healthcare
expenditure in excess of $3 trillion per annum.
39 For example in Malaysia, there were 50 private hospitals with 1171 beds in 1980 and in 2001, the number increased to 224
hospitals with 9949 beds. By 2006, there were 11,637 private hospital beds (23.2%) compared to the national total of 50,262
beds. See http:// www.moh.gov.my. In India for instance, 7080% of healthcare facilities fall under the jurisdiction of the private
sector. 68% of hospitals are privately run and 76% doctors do private practice compared with 44% of American hospitals. See
Ravi Duggal of Centre for Enquiry into Health and Allied Themes (CEHAT; Mumbai, India) in Sanjay Kumar, 'Indian health
organisations call for control of private sector health care', The Lancet 2000; 356 (9247): 2077, 16 December 2000.
40 For example, the 1997 Asian financial crisis caused a severe drop in the Malaysian currency and overall purchasing power
for many things, including healthcare. The low currency exchange rate for the Malaysian ringgit increased the costs of
healthcare as prices for imported medical supplies and equipment soared. This caused a low turnout in domestic patients
visiting private hospitals. Private hospitals in Malaysia were forced to search for alternatives abroad and ways of procuring
foreign patients.

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41 Statement made by Dr Fred DeMicco of Delaware University. He further stated that 'locals who earn less and can afford to
spend less on health care may be less able to afford more expensive healthcare. Those donating (or selling) organs may not be
receiving the best care, as they are generally not the wealthy medical tourists, but rather locals. Also, research methods, such
as animal testing or human trials of medicine and procedures, may not be as well regulated as they are in countries where there
is good research oversight.' 2005 Dogan Daily News Inc. www.turkishdailynews.com.tr.
42 For instance, in Cuba, increasing promotion of medical tourism has roused criticism by those who see a two tier health
system developing. In a country with one of the highest concentrations of doctors in the world, foreigners and Cuban party elite
receive first class service. Ordinary Cubans however have to settle with dilapidated facilities, outdated equipment and meager
medical supplies, partly due to the longstanding American embargo against Cuba. See Fred Charatan, 'Foreigners flock to
Cuba for medical care', British Medical Journal, (International edition), London: May 19, 2001, Vol 322, Iss 7296; p 1198, p 1.
43 See Dr Tsein Tu,'Doctor stresses need for ethics, humanism in medical practice',
http://www.myanmar.gov.mm/myanmartimes/.
44 See Cruess, RL, Cruess, S R & Johnston, S E, 'Professionalism: An ideal to be sustained', The Lancet, 8 July 2000, 356
(9224): pp 156159.
45 See Ministry of Health Malaysia, 'Ministry of Health Malaysia Annual Report 2009,' Ministry of Health Malaysia Website,
2009. Retrieved from http://www.moh.gov.my/images/gallery/publications/md/ar/2009-2.pdf.
46 Ibid.
47 See HR Abdullah, 'Court awards RM870,000 to couple and son over medical negligence,' The Star Online, 21 January 2011
at http://thestar.com.my/news/story.asp?file=/2011/1/21/nation/20110121141028&sec=nation.
48 Traditionally, doctors have been accountable to their patients and to their colleagues. They are now responsible to
individuals, the state and corporate sector, who pay for services, and to society for the impact of their decisions on resources
and on the community. These levels of accountability are now part of professional life and have had a wide impact on the
practice of medicine.
49 For instance, in order to ensure assessment of quality and safety in health care organisations through compliance to the
standards, Malaysia has also developed an accreditation program through a national accrediting body for health care facilities
and services in Malaysia the Malaysian Society of Quality in Health (MSQH). For information on MSQH, see the Malaysian
Society for Quality in Health at http://www. www.msqh.com.my. The MSQH is a member of the International Society for Quality
in Health Care (ISQua) and is also affiliated with ISQua Federation, a federated structure that oversees ALPHA (ISQua's
Agenda for Leadership in Programs for Healthcare Accreditation) worldwide. The accreditation program conducted by MSQH is
designed to execute external peer-review auditing of healthcare organisations to ensure that they have attained the stipulated
professionally developed standards.
50 See Brennan, T, Charter on Medical Professionalism, Medical professionalism in the new millennium: A Physicians' Charter,
The Lancet 2002; 359 (9305): 520-522, 9 February, pp 18.
51 See Cruess, SR & Cruess, RL (1997), 'Professionalism must be taught', British Medical Journal, Vol 315: 16741677 at p
1674.
52 See Cruess R, Cruess S, Johnston S (1999), 'Renewing professionalism: an opportunity for medicine', Acad Med 74: pp
87884.
53 In the United Kingdom, such action has been suggested by the General Medical Council (see Irvine D 'The performance of
doctors: the new professionalism'. The Lancet 1999; 353: pp 117477). In North America, guidelines for the behaviour of
professionals and their associations have appeared (see Wynia M, Latham S, Kao A, Berg J, Emmanuel L 'Medical
professionalism in society', N Engl J Med 1999; 341: 161215). As part of these initiatives, efforts must be made to incorporate
the ideal of professionalism, with its underlying foundation of altruism, morality, and virtue into the regulatory procedures that
will reassure society. Doctors who regard bureaucracy, guidelines and peer review with suspicion must come to believe in both
their appropriateness and validity.
54 See Mohd Hatta Shaharom (2009), Teaching Medical Professionalism: An Islamic Approach, Fima Year Book 2009, pp
5764.
55 (1996) Aust Torts Rep 63, 151.
56 See Lowns v Woods(1995) 36 NSWLR 344, at p 359.
57 [2000] 2 All ER 474[2000] 2 WLR 1158.

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58 Ibid.
59 See Williams, K, (2007), Litigation Against English NHS Ambulance Services and the Rule in Kent v Griffiths, Medical Law
Review, 2007 LEXIS 15 (153).
60 Ibid.
61 Once the decision had been made to provide an ambulance in response to a situation of medical emergency (not restricted
solely to '999' calls), an explanation is required to justify a failure to attend within reasonable time. If there is no good reason for
the delay and an absence of any other circumstances which make it unfair or unreasonable or unjust to impose liability, a freestanding duty of care may exist as envisaged in Caparo Industries plc v Dickman[1990] 1 All ER 568[1990] 2 AC 605.
62 [2007] 1 MLJ 593, see paras 6669.
63 [1982] 36 OR (2d) 669.
64 [2007] 1 MLJ 593, at para 67.