No country has been spared from the Covid-19 pandemic. The surge in the number of positive cases over the past year has left front-liners stretched thin and resources dwindling. It is against these circumstances that there have been calls to provide healthcare practitioners with immunity from medical negligence claims arising out of the pandemic.
Arguments in support of immunity
Proponents of the provision of immunity argue that there is an urgent need to alleviate the fear of healthcare practitioners being sued for the treatment and management of patients during the pandemic. Healthcare systems across the globe have been brought to their knees and the strain that rests upon the shoulders of healthcare practitioners is clearly evident – both physically and emotionally. If the threat of potential law suits is not allayed, it could potentially impede the treatment and management of patients. Although medical practitioners in Malaysia are required to have professional indemnity cover[1], one should not discount the distress and anxiety caused by the constant fear of having one’s clinical work criticised and every judgment questioned even though medical practitioners are treating patients in trying circumstances.
Those in support of immunity also argue that it is necessary to avoid healthcare practitioners from being judged against an unrealistic standard of care. These extraordinary times require extraordinary measures, especially given the deployment of healthcare practitioners beyond their areas of specialties. In this respect however, the Supreme Court in the United Kingdom recently confirmed in Dranley v Croydon Health Services NHS Trust[2] that the standard of care is judged against the role undertaken by a medical practitioner.
Arguments against immunity
On the other hand, those who oppose immunity argue that despite these extraordinary times, immunity from negligence is unnecessary given that the current legal tests in respect of medical negligence caters for exceptional circumstances including emergencies. The Federal Court in Zulhasnimar[3] confirmed that the Bolam[4] test is the applicable test for treatment and diagnosis. The words “in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art[5]” found in the judgment of the English High Court in Bolam are central to the argument that the courts ought to take cognizance of the circumstances prevailing at the material time in determining whether or not a healthcare practitioner had breached his/her duty of care. Therefore, immunity will, in most cases, be superfluous.
Another argument that has been raised by those who oppose the imposition of immunity is that it deprives patients of a proper recourse. Apart from denying individuals who are harmed access to justice, it is argued that the provision of immunity would send a worrying message that given the extraordinary circumstances, patients are not entitled to a minimum standard of proper care.
The Malaysian solution
In Malaysia, the Emergency (Essential Powers) Ordinance 2021 (“Ordinance”) was enacted in light of the proclamation of emergency issued by the Yang di-Pertuan Agong pursuant to Article 150(1) of the Federal Constitution. The Ordinance is deemed to have come into operation on 11 January 2021.
Section 10 of the Ordinance provides protection against legal proceedings to:
- the Government, a public officer or a person appointed under subsection 6(1) of the Ordinance,
- for any act, neglect or default done or omitted in good faith, and
- in carrying out the provisions of the Ordinance.
The protection that is afforded under Section 10 of the Ordinance is not a blanket immunity. Instead, it is protection that is qualified in that protection is limited to the Government and each public officer whose act or omission is done or omitted in good faith while carrying out the provisions of the Ordinance.
As to whom such protection is afforded to, Section 3 of the Interpretation Act 1948 and 1967 provides as follows:
“public officer” means a person lawfully holding, acting in or exercising the functions of a public office;
“public office” means an office in any of the public services;
“public services” means the public services mentioned in Article 132(1) of the Federal Constitution
In Toh Kong Joo[6], the High Court held that members of the medical service form part of the general public service and come under the jurisdiction of the Public Services Commission.
In view of the foregoing, it appears that healthcare practitioners in the public sector would fall under the protection provided under Section 10 of the Ordinance.
Potential legal issues
The width of the protection afforded under Section 10 of the Ordinance is likely to hinge on the definition of ‘good faith’.
If a lenient approach is adopted, it may be argued that as long as a healthcare practitioner exercises ordinary prudence[7] and acts with honest intent[8], he/she ought to benefit from the protection against legal proceedings.
However, the issues which are likely to arise with this approach are whether such protection dilutes the accountability of healthcare practitioners and whether it is appropriate for such a lenient standard to be applied when it comes to dealing with one of life’s most precious commodities – one’s health.
Conclusion
Given the issues revolving around immunity, it is understandable why very few countries have afforded protection against legal proceedings arising out of the pandemic. Apart from Malaysia, several states in the United States of America have laws which provide immunity to a certain extent.
Perhaps the appropriate solution involves finding a delicate equilibrium of being able to protect our front-liners without removing the ability of individuals who have suffered harm from seeking redress. In this respect, Malaysia has taken a step forward in the right direction by providing a form of qualified protection which is centered on good faith.
Moving forward, with strong and passionate advocates on both sides, it will be interesting to see how the Malaysian courts construe ‘good faith’ in the context of the Ordinance if cases are brought before the judiciary.
Footnotes:
[1]: Regulation 28(2)(a) and (b) of the Medical Regulations 2017
[2]: Darnley v Croydon Health Services NHS Trust [2018] UKSC 50 at para 25, English SC
[3]: Zulhasnimar bt Hasan Basri & Anor v Dr Kuppu Velumani P & Ors [2017] 5 MLJ 438 at p 473, FC
[4]: Bolam v Friern Hospital Management Committee [1957] 2 All ER 118, English HC
[5]: Bolam v Friern Hospital Management Committee [1957] 2 All ER 118 at p 122, English HC
[6]: Toh Kong Joo v Penguasa Perubatan Hospital Sultanah Aminah, Johore Bahru [1990] 2 MLJ 235 at p 133, HC
[7]: T Sivam a/l Tharamalingam (as representative/administrator for the estate of Nagamuthu a/l Periasamy, deceased) v Public Bank Bhd [2018] 5 MLJ 711 at p 728, FC
[8]: Ibid