NOV 6 — Does the act of signing a consent form prior to surgery automatically absolve the liability of a doctor or medical institution?

More importantly, is the consent of a spouse also required in such circumstances?

Two recent cases in the High Court come to mind. These are Gurmit Kaur Jaswant Singh v Tung Shin Hospital & Anor, and Abdul Razak Datuk Abu Samah v Raja Badrul Hisham Raja Zezeman Shah & Ors.

While the facts in both cases differ, the learned judges looked into the duty of care owed to the patients, and if there was a need to explain the nature of the risks to the next of kin.

It also looked at the dependence of the patients — despite being of right-sounding mind — on their spouses.

In the case of Gurmit Kaur, the plaintiff was admitted for the removal of a fibroid. She signed a consent form, but claimed her husband was not called in for the signing. In the follow-up appointment, the plaintiff was shocked to learn she could no longer conceive as a hysterectomy was performed instead.

Judicial Commissioner Rosilah Yop held that consent from the plaintiff’s husband should have been obtained for the hysterectomy since “there was no possibility of the plaintiff getting pregnant after such surgery”.

In Abdul Razak’s case, his wife had refused to have a Ryle’s tube inserted as it caused her discomfort. But the process was necessary before surgery to prevent contents of the stomach from regurgitating and getting into the patient’s lungs.

The tube was only inserted after the patient was anaesthesised and had passed out. However, while being anaesthesised, the patient regurgitated a large volume of stomach fluid, which entered her lungs and caused respiratory failure, leading to her death.

Judicial Commissioner Vazeer Alam Mydin Meera pointed out that while the patient was of right-sounding mind, she was also dependent on her husband.

Abdul Razak had made the decision to transfer her from Temerloh Hospital to Kuala Lumpur Hospital, and the patient had contacted him before passing the phone to the doctor, who obtained consent to perform the surgery.

Vazeer held “even though the consent form did not require the plaintiff’s consent to the surgery, the factual matrix of the case indicated that the first defendant had a duty to inform the plaintiff (the husband) of the nature of the surgery and the inherent and material risks of the procedure, especially in view of the patient’s refusal to have the Ryle’s tube inserted. It is clear from the evidence the patient depended on the plaintiff to make the decision to proceed with immediate surgery”.

These cases have sparked a debate on whether hospitals and medical practitioners should now be required to obtain clearance from spouses prior to surgery.

A senior cardiothoracic surgeon said doctors in Malaysia tended to keep family members in the loop out of courtesy.

“Doctors in developed nations only deal with patients if he or she is of sound mind and understands the circumstances involved. Here, we notify the family and at times, it gets messy. “We will advise, but there have been instances where family members turn against us when something goes wrong.”

The Department of Health in New South Wales, Australia, in its policy directive issued in 2005, clearly stated that “where the patient is capable of giving consent, there is no specific requirement to obtain the consent of the spouse (or any other family member) and this should only be done with the specific authority of the patient”.

Malaysian Medical Association (MMA) president Datuk Dr N.K.S. Tharmaseelan, said: “There was never a legal obligation to obtain consent from the spouse. Now that it is obligatory, it could lead to a state of confusion among doctors every time they see a patient.”

These two cases must be taken into consideration before any conclusive stand is reached. It is, however, paramount for patients to be informed of the procedures and treatment, and given time to weigh their options before making a decision (in a non-emergency situation).

This would certainly be an interesting discussion during the annual Medico-Legal Conference on November 23 in Kuala Lumpur.

Also, the soon-to-be-established MMA-Medico Legal Society Malaysia mediation bureau, consisting of doctors and lawyers, provides an alternative platform for aggrieved parties to seek redress.

Hopefully, this would result in a level playing field for the medical profession and the masses to put forward their case and find an amicable solution.

* Haresh Deol is editor (investigation and special project) of The Malay Mail. Banter with him at haresh@mmail.com.my or on Twitter @HareshDeol

** This is the personal opinion of the writer or publication and does not necessarily represent the views of The Malay Mail Online.