It gives an overview on the concept of paternalism and autonomy and which principle prevails in the current situation. The opinion is the writer personal opinion.

1. UNIVERSITI KEBANGSAAN MALAYSIA
SEMESTER I SESI 2015/2016
IJAZAH SARJANA UNDANG-UNDANG
Medical Law (UUUK 6195)
Patient’s Autonomy versus Doctor’s Paternalism:
Which should prevail in Malaysia?
Prepared by: Siti Fairuz (P73969)

2. 1. INTRODUCTION
2. THE CONFLICT BETWEEN PATERNALISM &
AUTONOMY
3. THE DEVELOPMENT:- PATERNALISM TO AUTONOMY
4. CONCLUSION
CONTENTS

3. 1. INTRODUCTION
2. THE CONFLICT BETWEEN PATERNALISM &
AUTONOMY
3. THE DEVELOPMENT:- PATERNALISM TO AUTONOMY
4. CONCLUSION
CONTENTS

4. 1. The medical profession in the past have been accorded with an unparalleled level of deference where it was seen as a profession that
can do no wrong. However judicial intervention has created rights for patients and nowadays, and followed by a legal duty on the
doctors to observe.
2. Development of medical ethical codes to professional code of conducts:-
INTRODUCTION
The code of Hammurabi1
18th century
• King of Ancient Babylon introduced this Code;
• It contains the rights & duties of medical men;
• Etc punishment for failure of treatment are written as:- “if a
doctor has treated a man for severe wound with a metal
knife and has caused the man to die, his hands shall be cut
off; or “if a man destroyed the eye of a patrician, then his
eye would be destroyed.”
Medical Ethics2
Classic Greek Culture
• Plato introduced medical ethics i.e. where Plato held
that only physicians should judge the action of other
physicians.
• Aristotle meanwhile emphasized that the only penalty
that is applicable to any wrong doing by a physician
was limited solely to injury to his reputation and
nothing else.
Aristotle
Hippocratic Oath
• Hippocratic created an oath for
doctors when the commence
practice;
• The oath is on medical ethics &
guidelines
• It shapes the social contract between
medicine & society;
• The main ethical principle is
“beneficence”, “welfare of patients”
& “confidentiality”
3
1. 1948:- Declaration of
Geneva was
introduced;
2. 1968:- International
Code of Medical Ethics
4
1981:- Oath of Muslim
Doctor was created by the
International Organization
of Islamic Medicine
5The Patients Charter6Alma-Alta Declaration7

5. 1. The definition of paternalism:-
a) it has been defined as “interference with a person’s liberty of action justified by reasons referring exclusively to welfare,
good, happiness, needs, interests or values of the person being coerced.
b) It is also referred to as interference by the physician with the patient’s freedom of action
c) Its interference is justified on the ground of the patients best interest, patient is not qualified to comprehend his own
medical condition due to his lack of medical expertise.
2. The definition of autonomy:-
a) it has been defined as “the capacity to think, decide and act on the basis of such thought and decision freely and
independently;
b) It also means that each patient is entitled to determine his own health destiny.
INTRODUCTION
PROBLEM STATEMENT
The patients nowadays do not want to be treated as passive recipients of medical care.
There is an increasing awareness of human rights which included patient’s rights and
the public expectation on the medical profession have also changed.
Which of the approach prevail in Malaysia?
Doctor Patient

6. 1. INTRODUCTION
2. THE CONFLICT BETWEEN PATERNALISM &
AUTONOMY
3. THE DEVELOPMENT:- PATERNALISM TO AUTONOMY
4. CONCLUSION
CONTENTS

7. PATERNALISM vs AUTONOMY
NO CONTENTS PATERNALISM AUTONOMY
1 STRENGTHS • its emphasis on the beneficence (welfare of
the patient).
• In this concept it is assumed that welfare or
the best interest of the patient was primarily
identified by the doctor – doctors will know
what will be the correct choice or treatment
• Concept of beneficence becomes the central
to this paternalism concept – “doctor knows
best rule.”
• Justification for this concept is that the
doctors are expert and have the superior
knowledge in the medical sense.
• Prudent doctor test
• Based on this concept the ideal relationship between doctors
and patient is not on the skills or the intentions of the
healthcare provider but rather on the interests and rights of
the patient.
• In patients autonomy, it requires bearing in mind “first do no
harm, then the harm done to patient autonomy by
paternalistic medical environment and over-controlling care
givers should be avoided.
• But under the law, the legal debate on autonomy is firstly
determning the competency and secondly consideration of
the wight to be given to the decisions of the competent
persons.
• Prudent patient test @ doctor‘s duty flows from the patient‘s
right.

8. PATERNALISM vs AUTONOMY
NO CONTENTS PATERNALISM AUTONOMY
2 CRITICS • there exists informational imbalance between
doctor and patient that makes the patient
vulnerable.
• Atkins :-” the need to accede to our
fundamental fallibility and an epistemological
humility” – while self-evidently we consult
doctors precisely because they have
expertise in health matters, neither their
knowledge nor their recommendations define
our best interest.
• Doctor cannot and can never know enough
about their patient’s wants, needs, interests,
hopes and fears to make decision for the
patient.
• the biggest failure is that the assumption that
medical values or medical good is the highest
good and that it has an absolute quality
which overrides other values.
• Critics on autonomy argue that the change from paternalism
to autonomy – posed a serious challenge to the historical
authority of physicians and will likely have impact on the
patients’ care – for example dominance of autonomy may
reduce the influence of medical information or medical advice
on patient’s decision and also will make the relationship
between the doctor and patients sterile.
• Pellegrino & Thomasma argue that :- “ …autonomy should
not be viewed as an absolute model for the doctor-patient
relationship itself because it is insufficient to claim, as the
move to patient autonomy often does, that medical
paternalism is a direct outgrowth of professionalisation..
Modern medicine incorporates moments of patient choice as
well as of necessary beneficience paternalism.”
• British Medical Instutite argues that autonomy is in and of
itself only one of the guiding principles of good medical
practice. Thus while autonomy is an important principle, it
must be balanced in porportion with other moral aspects such
as the doctor’s duty to avoid harm in its widest sense.

9. PATERNALISM vs AUTONOMY
NO CONTENTS PATERNALISM vs AUTONOMY
3 CONFLICT 1. Right of Self Determination :-
 the patient’s interest consist of his right to self-determination @ the right to live his own life how he wishes,
even if it will damage his health or lead to his premature death.
 However this right will only be recognized when all the legal rules of consent have been satisfied, such as the
patients fully understand the consequences or the inherent risks of the proposed treatment and provided also
that the doctor has disclose or advise the patient with proper information;
2. How well can the patient understand?
 What is the doctor to do when the patient is unable to understand the information disclosed by the doctor?
 Does the doctor owes a legal duty to ensure that the patient truly understands the information? The doctor
does have the obligation to assist the patient to understand the information, however that is not a legal duty on
the doctor.
 Lord Templeman in Sideway v Bethlem Royal Hospital Governors states:- “ a patient may make an
unbalanced judgement because of his incapability to assess the medical information due to his lack of medical
training, his prejudices or personality.
 So doctors in defending paternalism will argue that the an inordinate amount of time is required to make
disclosure of risks in a comprehensible manner and such time will be better to spent attending to other
patients in need.
3. Balancing the rights of self determination with the concept of beneficence:-
 Because of the medical profession, the medical doctors faced a heavy task in balancing their professional
ethics and ethos of beneficence with the patient’s right of self-determination.
 This is because beneficence still holds considerably in medical thinking.

10. 1. INTRODUCTION
2. THE CONFLICT BETWEEN PATERNALISM &
AUTONOMY
3. THE DEVELOPMENT:- PATERNALISM TO AUTONOMY
4. CONCLUSION
CONTENTS

11. From Autonomy to consent:-
1. The major consequences of autonomy is to be respected as autonomous – it implies the capacity or liberty to make decisions, free
from external control and in the expectation that they will be accepted as valid and binding and nobody has the authority to interfere
with our bodies and minds without our agreement or consent.
2. The doctrine of consent – when all the elements in the consent are met, then that person is said to be autonomous.
3. The doctrine of consent was said to be stimulated by the need to create a workable doctrine that can accommodate the conflict in the
autonomy model.
4. Under the doctrine of consent, there are certain criteria that must be satisfied:-
THE DEVELOPMENT: PATERNALISM TO AUTONOMY
NO CONTENTS CRITERIAS
1 a) Competence:- • It is central to the legal evaluation of patients decision;
• If a person is not competent, then even an apparently free and uncoerced choice will not be legally respected;
2 b) Information:- • The patient needs information on which to base his or her choice.
• The informed aspect of consent is the element that focuses on the patients right to receive relevant and
sufficient information in order to enable him to make a decision.
• The doctor is therefore under the obligation to share information with his patient. The information must be
relevant to the patient to assist the patient to choose the course of action himself.
• In this situation, the doctor becomes facilitator rather than a director (as in paternalism).
• Once the patient has come to his decision, it’s the doctor duty to inform the patient whether that goal is
attainable and if not, to help him to choose another and then to determine and discuss the means required
to hopefully reach such goal.
3 c) Understanding:- • In order to deliberate rationally, it is argued that a patient must be able to comprehend the relevant facts
and circumstances of the patient’s situation.
• After considering the options for medical treatment, the patients needs to discern which option for medical
treatment, the patient needs to discern which options best coheres with the patient life plans.
• Faden & Beuchamp said that understanding is of special importance for a theory of informed consent.
4 d) Voluntariness:- • It requires that the patient is free from external pressure to make a particular decision;
5 e) Expression:- • Modes of expressing the patients consent.
• For example for patients that cannot talk, using sign language or any other means.

12. From Autonomy to consent:-
5. Rationale for the informed consent:-
• its basically to promote patient’s autonomy.
• The decision to undergo treatment is the patient’s and not the doctor’s.
• The doctrine gives the right of self determination to the patient;
6. The general principle in order to make a valid autonomous choice, the patient has to be provided with sufficient information to enable
the patient to decide.
7. Doctor’s corresponding obligation to disclose derives from the very fact of the consultation ie when the patients came to seek out
medical advice since the patient do not have clinical expertise. Therefore the patient ability to make an autonomous decision rests
firmly on the extent to which the patients are made aware of the consequences of their choice.
8. Impact of Bolam, it’s a medical defence for the doctor namely that negligence cannot be established if there is a body of responsible
medicine that agrees with the doctor in question and even if there are other body of opinion that differs from the doctors in question
opinion.
9. But Sideway v Bethlem Royal Hospital Governors & Other (1987) 1 BMLR 132 limit the interpretation of Bolam’s test.
10. While Lords Keith & Bridge decided that the decision to disclose or what to tell patients is a matter of a clinical judgment, Lord
Scarman sees from the view point of a patient and concluded that the doctor’s duty arises from the patient’s rights.
11. The obligations of the courts was to ensure that the medical opinion about the interest of the patient is not to override the patient’s
right to decide for himself whether he will submit to the treatment offered to him.
THE DEVELOPMENT: PATERNALISM TO AUTONOMY

13. DEVELOPMENT FROM THE CONCEPT OF PATERNALISM TO AUTONOMY TO CONSENT BASED ON DECIDED CASES
NO NAME OF CASE PRINCIPLES IN THE CASE
PATERNALISM OR
AUTNONOMY
1 Bolam v Friern Hospital
Mgmt (1957) (UK)
• During that time, it was an accepted practice that doctor did not need to warn
patient about the risks
• Another reason that the defendant doctor did not warn the patient of the risks
is because the doctor viewed that there will be some danger in informing the
risk to a patient that is mentally ill.
Paternalism
2 Sideway v Bethlem Royal
Hospital (1985) (UK)
• This case followed Bolam test but the judges limit the application of it.
• Lord Templeman view is that there is a need for doctors to give sufficient
information to patient to allow patient to make a balanced judgment;
• He said:-”Although a patient is not entitled to know everything, neither is a
doctor entitled to decide everything.”
• However Lord Scarman rejected Bolam and concluded that a doctor’s duty
arises from the patient’s rights.
Autonomy
3 Canterbury v Spence
(1972) (US)
• Developed the concept of patient’s right to self-determination – which shapes
the duty of the doctor to reveal;
• All risks potentially affecting the patient’s decision must be unmasked;
• The law must provide the standard for adequate disclosure;
• Introduced the concept of “therapeutic privilege”- where there are situations
that the doctor is not obliged to disclose, for example if it can be established
by means of medical evidence that such disclosure would pose a serious
threat of psychological treatment to the patient. (an exception to autonomy)
Autonomy
THE DEVELOPMENT: PATERNALISM TO AUTONOMY

14. DEVELOPMENT FROM THE CONCEPT OF PATERNALISM TO AUTONOMY TO CONSENT BASED ON DECIDED CASES
NO NAME OF CASE PRINCIPLES IN THE CASE
PATERNALISM OR
AUTNONOMY
4 Reibl v Hughes (1980)
(Canada)
• In cases of emergency and when there is no consent obtained, action for
negligence is not appropriate
• Unless in emergency, consent in needed in surgery or other medical
treatment – if there is none, there can arise a cause of action on battery.
• Introduced the concept of allowing the patient to make an intelligent choice:-
Merely because medical evidence establishes the reasonableness of a
recommended operation it does not mean that a reasonable person in the
patient’s position would necessarily agree to it, if proper disclosure had been
made of the risks attendant upon it, balanced against it.
Autonomy
5 Rogers v Whitaker
(1992) (Australia)
• All medical treatment is preceded by the patient’s choice to undergo it. @ in
other words it means that in legal terms, the patient’s consent to the
treatment may be valid once she is informed in broad terms of the nature of
the procedure which is intended.
• Since the decision is by the patient, it would be illogical to hold that amount
of information that influences the patient’s decision. (the right to self-
determination).
• A risk is material if in the circumstances of particular case, a reasonable
person, if warned of the risks would likely attach significant to it. If that risk is
material, the doctor has a duty to warn the patient of the material risk inherent
in the proposed treatment.
Autonomy
THE DEVELOPMENT: PATERNALISM TO AUTONOMY

15. DEVELOPMENT FROM THE CONCEPT OF PATERNALISM TO AUTONOMY TO CONSENT BASED ON DECIDED CASES
NO NAME OF CASE PRINCIPLES IN THE CASE
PATERNALISM OR
AUTNONOMY
6 Pearce v United Bristol
Healthcare NHS Trust
(1998) (UK)
• The law is, if there is a significant risk which would effect the judgement of a
reasonable patient, then in the normal case it is the responsibility of the
doctor to inform the patient of the significant risk, if the information is needed
so that the patient can determine for him as to what course he should adopt.
Autonomy
7 Re T (1992) (UK) • The right to determine with one’s own body is a fundamental right in our
society. Free individual choice in matters affecting this right should be
accorded high priority.
Autonomy
8 Chester v Afshar (2004)
(UK)
• Applied prudent patients test and said that it’s the doctor duty to warn the
risks
Autonomy
9 Foo Fio Na (1999)
(Malaysia)
• (in this case the manner of taking the consent was not right. There were 2
consent taken. The 1st consent was taken before the doctors come to the
conclusion to have the surgery. While the 2nd consent was taken without
Plantiff’s actual knowledge and actual understanding of the nature of the 2nd
consent.)
• There is 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. On
this basis, the Whitaker test would be more appropriate and a viable test of
this millennium than the Bolam test.
• The phrase “Doctor knows best rule should now be followed by the qualifying
words “if he acts reasonable and logically and get his facts right.”
Autonomy
THE DEVELOPMENT: PATERNALISM TO AUTONOMY

16. 1. INTRODUCTION
2. THE CONFLICT BETWEEN PATERNALISM &
AUTONOMY
3. THE DEVELOPMENT:- PATERNALISM TO AUTONOMY
4. CONCLUSION
CONTENTS

17. 1. Based on the cases discussed above, it seems to shows that the autonomy prevails over the doctrine
of paternalism.
CONCLUSION
• However, the medical profession still holds on to the concept
of beneficence. According to an author, the concept of
beneficence can be conceptualized differently.
• For example, it would require the doctor active engagement in
helping the patient to make an autonomous decision. The
beneficent act is engaging actively by sharing relevant
information and guide the patient if the doctor thinks that
patient is making the wrong decision but not to coerced the
patient into making it.
• If beneficence is interpreted in such a way, then there will be
no conflict between these 2 concepts and no conflict will arise
between the doctor’s duty and the patient’s rights.
• However, the law is still required to play a role in interpreting
the doctrine of informed consent in Malaysia and to what
extent should an information can be disclosed to the patient.
Therefore, in Malaysia, it can be right to say that between
autonomy and paternalism, neither one prevails.
• Instead each of the principle lends an important role in the
delivery of a healthcare and decision making by an individual.
• By paternalism, the doctor still feels ethically obligated to
provide the suitable health solutions to his patients and by
autonomy, the patient will have the right to know of any
material risk in his treatment. In other words, the two
principles are balanced and shared equally between the doctor
and the patient.

18. A. Books:-
• Medical Law in Malaysia by Kartina Aisha Choong, 31 July 2012, Wolters Kluwer Law & Business
• Medical Negligence Law in Malaysia by Dr. Puteri Nemie bt Jahn Kassim, ILBS, 2003
• Autonomy, Consent and the Law by Sheila A.M. Mclean, Baiomedical Alw and Ethics ;Library,
Cavendish
B. Articles & Journals:-
• Medical Paternalism versus Patient Autonomy: Solving conflicts in Medical Decision Making by Dr.
Puteri Nemie bt Jahn Kassim (2003) 2 MLJ xxxiv
• Contemporary Legal and Ethical Dilemmas raised by Advancement in Medicine, Science & Technology
by Dr. Puteri Nemie bt Jahn Kassim (2004) 2 MLJ I
• The Patient, The Doctor, Their Lawyers and the Judge : Rights and Duties by The Right Honourable
The Lord Irvine, Medical Law Review (1999) 7 (3):255
C. Cases:-
• BOLAM v FRIERN HOSPPITAL MANAGEMENT COMMITTEE (1957) 2 ALL ER 118:-
• BOLITHO (administratrix of the estate of Bolitho (deceased)) v CITY & HACKNEY HEALTH AUTHORITY
(1997) 4 ALL ER 771:-
• ROGERS v WHITAKER (1992) 109 ALR 625:-
• CANTERBURY V SPENCE (1972) (US)
• REIBL V HUGHES (1980) (Canada)
• PEARCE V UNITED BRISTOL HEALTHCARE NHS TRUST (1998) (UK)
• Re T (1992) (UK)
• CHESTER V AFSHAR (2004) (UK)
• FOO FIO NA v HOSPITAL ASSUNTA & ANOR (1999) 6 MLJ 738 (HCT), (2001) 2 MLJ 193 (COA) &
(2007) 1 MLJ 593 FC
REFERENCES