The Inviolability of Medical Confidentiality in Malaysia: An Analysis of the Rules and Exceptions

Abstract

The duty of medical confidentiality has been one of the core duties of medical practice as information created, disclosed, acquired directly or indirectly during the doctor-patient relationship is considered confidential and requires legitimate protection. Further, preserving confidentiality on the premise that the relationship between doctor and patient has been built on trust and confidence renders the duty to be seen as sacrosanct. The source for this duty can be found not only in the Hippocratic Oath, codes of ethics, religious tenets but also in the common law, principles of equity and statutory provisions. Nevertheless, technological advancements and the growth of social networks have contributed to the difficulties in preserving confidentiality as the information gathered tends to become vulnerable in unsecure environments. However, the duty of medical confidentiality is by no means absolute as it can be breached in situations in which there are stronger conflicting duties. This article discusses the rules governing the duty of medical confidentiality and the exceptions in which infringements to this duty become justified. It also gives an overview of the duty of confidentiality under Islamic law. It concludes that the inviolability of this duty may be without doubt but circumstances warranting its disclosure are crucial to serve the interests of justice.

A Review of Medical Malpractice Issues in Malaysia under Tort Litigation System

“…Under the law of torts claims cannot be brought after a lapse of six years from the date on which the cause of action occurred( Limitation Act 1953 ). In torts actionable per se, such as trespass to the person, the cause of action normally accrues at the date of defendant’s wrong, whereas with tort actionable its only on proof of damage, such as negligence, the action accrues when the damage occurs ( Kassim, 2008 ) and this is usually not the same time with the defendant’s breach of duty but later. For example, in cases of anesthetic and surgical mishaps, damage will flow immediately from the negligent act but where prescription of a drug is involved, which cause a delayed kind of harm, damage may only occur years after it is used ( Nelson-Jones, 1995 ).…”

“…Under the current system, the first step after appointing a lawyer is for the patient to obtain the records for examination by a medical expert in order to prepare an initial report. The medical expert must be willing to give oral evidence and be cross-examined at the later part of proceedings ( Kassim, 2008 ). However, in the event that “the case does not proceed to a contested hearing, the expert evidence on both sides is still likely to be instrumental in bargaining process leading to an out of court settlement, or even to a decision by claimant to abandon proceedings” ( Philips, 1997 ).…”

A Review of the Patients’ Right of Confidentiality under the Saudi Arabian Laws

“…1 Achieving a balance between giving access to information and respecting patients' confidentiality is a crucial issue for any healthcare setting (Alahmad, Hifnawy, Abbasi, & Dierickx, 2016). Nonetheless, the dynamics of technological advancements and the evolution and proliferation of social networks have resulted in creating difficulties in maintaining the duty of confidentiality as the information gathered tends to become more prone to unlawful disclosure to third parties in such insecure settings (Kassim & Ramli, 2016).…”