Journal of Nursing Law, Volume 13, Number 2, 2009

Challenges for the Nursing Profession

in Malaysia: Evolving Legal
and Ethical Standards
Jahn Kassim Puteri Nemie, LLB(Hons), MCL, PhD

Acceptance of the premise that nursing legal and ethical standards are emerging and evolving in the
global community, forms the basis for this exploration of Malaysian nursing law and ethics. Recent
changes in the provision of health care in Malaysia have contributed to the growing importance
of nursing law and ethics. The role of Malaysian nurses has been affected by litigation related to
negligence, informed consent, confidentiality, and euthanasia. Malaysian nursing legislation does
not address many legal and ethical issues that require a comprehensive set of laws that recognize
the considerable convergence between legal and ethical judgments. Technological advances in
health care have also created challenges for the Malaysian nursing profession. Nurses must con-
quer these challenges by becoming more knowledgeable about legal and ethical decision making.
The education of Malaysian nurses about the demands of law and ethical standards would promote
greater accountability, knowledge, and personal commitment in providing health care to individuals
throughout their life span.
Keywords: Malaysian nursing law and ethics; Malaysian health care provider law; Malaysian
health care ethics

N
urses provide a comforting human interface
between patients and the hospital, and between
communities and the health care system thus
forming the “heart” of medical and health care service
provision in Malaysia. The rapidly changing Malaysian
health environment has required nurses to provide care
through extended roles in order to complement the
services rendered by other health professionals. These
extended roles have forced Malaysian nurses to become
more involved in practices that may have profound
individual legal consequences. Consequently, Malay-
sian nurses have become increasingly aware of legal
and ethical issues that have impacted on their practices
and have also recognized the importance of a solid foun-
dation in legal and ethical principles thus promoting
competency in independent complex decision making.
In Malaysia, nurses represent the largest workforce in
the health care sector.1 They are the main providers of
health care, particularly in rural and remote areas. The
nursing workforce has now increased to around 60,000,
or approximately 2.25 nurses per 1,000 population.2
There are 18 nursing colleges under the Malaysian Min-
istry of Health, 6 university programs, and 32 private
sector diploma programs. Graduates of Nursing and
Midwifery programs, assistant nurses, and rural nurses
must succeed in the respective registration examina-
tions set by the Nursing Board and the Midwifery Board
of Malaysia to qualify for registration and practice.3
The requirements are stipulated under the Nurses Act
1950 [Act 14] and the Midwives Act 1966 [Act 436].4
However, these Acts do not have specific provisions
regarding the liability of nurses arising in medical mal-
practice. Legal rules and principles regarding issues of
malpractice affecting Malaysian nurses are found in the
English Common Law. Section 3 of the Malaysian Civil
Law Act 1956 [Act 67] provides that unless there is any
written law in force in Malaysia, the courts in Malaysia
shall apply the Common Law of England and the Rules
of Equity as administered in England on April 7, 1956.
However, the said Common Law and the Rules of Equity
shall only be applied insofar as the circumstances of
the States of Malaysia and their respective inhabitants
permit, and subject to such qualifications as local cir-
cumstances render necessary.5
Traditionally, the doctor–nurse relationship in Malay-
sia is akin to that of a master and servant. Nurses have

54 • Copyright © 2009 Springer Publishing Company

DOI: 10.1891/1073-7472.13.2.54

been characterized as being incapable of independent
or cooperative decision making in medical treatment.
Nurses had never been entrusted with formal respon-
sibilities that may have had major legal consequences
and have taken a rather passive role in such decision
making. However, the recent changes in the provision
of health care in Malaysia have united doctors and
nurses as partners. Modern health care settings have
placed greater emphasis on the nurses’ role in planning,
implementing, and evaluating nursing care. The role
of nurses has thus been affected by litigation related
to negligence, informed consent, confidentiality, and
euthanasia. Hence, it would only seem just that nurses’
extended roles make them legally responsible for the
consequences of their actions accountable to their
peers, employers, patients, and ultimately, the courts.
ADHERING TO PROFESSIONAL
ETHICAL STANDARDS IN MALAYSIA
In fulfilling their responsibilities, nurses are often
challenged with clinical situations that have ethical
conflicts. These unresolved conflicts may cause feel-
ings of frustration and powerlessness that can lead to
compromises in patient care, job dissatisfaction, or
disagreements among those on the health care team.6
Nurses need skills and guidance to help resolve ethi-
cal conflicts.7 Through Malaysian nursing education,
nurses are taught to adhere to the values of the nurs-
ing profession.8 Ethical codes of professional practice
outline principles that demonstrate the responsibil-
ity of the profession’s members to Malaysian society.
The Code of Professional Conduct for Nurses (CPCN)
developed by the Nursing Board of Malaysia9 outlines
the values and duties to which nurses are expected to
adhere, in order to make sound ethical decisions and
provide high-quality nursing care. The CPCN delineates
what registered nurses10 must know about their ethical
responsibilities, informs other health care professionals
and members of the public about the ethical commit-
ments of nurses, and upholds the responsibilities of
being a self-regulating profession.11 It consists of six
provisions divided into three major content areas that
address the fundamental values and commitments of
nurses, the boundaries of duty and loyalty, and the
duties toward patients.
Globally, the ethical principles and rules that com-
monly guide nursing practice and patient care include
nonmaleficence, beneficence, autonomy, fidelity, verac-
ity, and justice.12 In Malaysia, the principles of nonma-
leficence and beneficence are often discussed together
and as with beneficence, the obligation is toward positive
Nemie • Challenges for Nurses in Malaysia • 55
action in preventing and promoting good. With nonma-
leficence, the obligation is stated as negative terms. For
instance, there is a duty to do no harm, thus it is an
obligation not to inflict harm intentionally.13 In Malay-
sia, autonomy means a special form of personal liberty,
wherein individuals are free to choose and implement
their own decisions according to their own individual
values and beliefs, free from deceit, duress, constraint,
and coercion.14 In Malaysian law, respect for patients
includes treating patients regardless of ethnic origin,
nature of health problems, religious beliefs, and social
status.15 Respect also extends to nurses’ colleagues.
Provision 1.5 of the CPCN provides that “the nurse
should work collaboratively and co-operatively with
other members of the health care team and should
not hesitate to consult appropriate professional col-
leagues when needed.” Fidelity refers to faithfulness,
particularly the duty to honor commitments made to
others, particularly in avoiding conduct that is consid-
ered derogatory to the nursing profession.16 Veracity
involves actions and beliefs that are based on the values
of truth, accuracy, and honesty.17 Finally, according to
the principle of justice as specified in Malaysian law, all
people should be treated fairly and available resources
should be used equitably.18
Conflicts may occur between two or more ethi-
cal principles, which may lead to ethical dilemmas
in deciding what is the right or best course of action.
Conflicts, particularly in respect to Malaysian culture,
may occur regarding informed consent. For instance,
the nurse may over rely on patient autonomy when,
in reality, the information may only cause the patient
to make an inappropriately unbalanced judgment
due to bias and prejudice on the part of the patient.19
Other such conflicts may include issues relating to dis-
agreements over patients’ resuscitation status, futility
of treatment, and rationing of scarce resources.20 In
another example, a nurse who highly values nonma-
leficence, or seeks to minimize harm, may feel uncom-
fortable when giving chemotherapy to an older adult
patient when she feels that the risks to the patient out-
weigh the potential benefits. In contrast, a nurse who is
guided by the principles of respect and autonomy may
not be troubled, feeling that the most important duty
is to fulfill the patient’s request, despite the ratio of
benefit to risk.21 Nurses may also become involved in
disagreements between patients and patients’ families
about the best courses of treatment and the needs of
the patients. Nurses must therefore be encouraged to
raise awareness among peers and actively discuss the
legal and ethical issues in their practice settings. This
will help Malaysian nurses begin to decrease feelings of
56 • Journal of Nursing Law • Vol. 13, No. 2
uncertainty and find the best solutions to resolve these
ethical conflicts.
THE DEMANDS BY MALAYSIAN LAW
Undeniably, the law, being an instrument of social
regulation, has established rights and responsibilities
of the parties involved in the nurse–patient relation-
ship. The law is expected to structure decisions that
will reduce the conflicts and dilemmas occurring in
the nursing profession,22 but the legal outcome may
not necessarily correspond to the ethical perspectives
of the profession as occur and may evolve in any one
particular culture.
AVOIDING CLAIMS ARISING IN
MEDICAL (NURSING) NEGLIGENCE
IN MALAYSIA
Nurses are expected to adhere to a certain standard as
demanded by the profession.23 The standard of care
demanded by Malaysian law for nurses is the standard
of care observed by a reasonably competent member
of the profession.24 A nurse will not be considered
negligent if he or she has acted according to a practice
accepted as proper by a body of those who possess simi-
lar skills to the nurse in question.25 Although, many
cases that go to civil court involve the issue of negli-
gence, it is not often that nurses are sued individually.
This is due to the operation of the doctrine of vicarious
liability that shifts employee liability to the employers.26
This doctrine is essentially a rule of convenience27 but
is limited in its application. It renders the employer
liable only for its employees28 and is confined to acts
committed in the course of employment. The employee
is held to be acting in the course of employment if
he or she commits an act that is authorized by the
employer.29 Thus, as long as the nurses follow orders
given to them by doctors or other superiors, they will
not be held individually responsible, unless they are
entrusted with certain tasks to decide for themselves.
In Dr. Ks Sivananthan v The Government of Malaysia &
Anor,30 the doctor was held negligent for delaying in
giving the proper treatment to the patient. The delay
was mainly caused by the failure of the nurse in record-
ing adequate and timely observations in the patient’s
chart. These ordered observations were to monitor the
blood circulation of the leg, and if the circulation was
found to be blocked as evidenced by the color of the
toes, immediate medical attention would be required.
Further, in Foong Yeen Keng v Assunta Hospital (M) Sdn
Bhd & Anor,31 although the medical notes recorded by
the nurses were incomplete, the court held that there
was ample evidence supporting the hospital’s conten-
tion that the antibiotic prescribed had been dispensed
sufficiently. Therefore, the hospital and doctor were
not held liable. Even though Malaysian nurses are
rarely sued individually, they do have to adhere to the
standard of care demanded by the law in order not to
be sued collectively. Being sued collectively does not
absolve nurses from liability, as the employer has the
right to claim for indemnity against the nurse(s) if
found guilty.32 Further, if the nurse is found guilty, the
Nursing Board of Malaysia33 has disciplinary jurisdic-
tion under section 31 of the Nurses Act 1950 [Act 14] to
suspend or remove the registered nurse from the Regis-
ter, or to reprimand or suspend the registered nurse as
they deem fit for a period not exceeding 2 years.34
PROCURING INFORMED CONSENT
PRIOR TO UNDERTAKING MEDICAL
TREATMENT IN MALAYSIA
The general legal and ethical principle for adult patients
of sound mind is that legally valid consent must be
obtained before treatment to a patient is undertaken.
In order for the patient’s consent to be legally valid, the
consent must be informed in nature. This requires
the patient to be given sufficient information about
the treatment. The patient must know to what he or
she is consenting. The nature, purpose, and inherent
risks of the proposed treatment must be understood
by the patient.35 The current trend among the courts
in many jurisdictions, relevant to Malaysian law, has
been to attach greater weight to the patient’s right of
self-determination. It is the right of every human being
to make decisions that affect his or her own life and
welfare and to decide what risks he or she is willing
to undertake.36 The Federal Court of Malaysia37 has
recently ruled in the case of Foo Fio Na v Dr Soo Fook
Mun & Anor38 that cases of informed consent will be
judged according to the “reasonable prudent patient test”
set forth by the Australian case of Rogers v Whitaker.39
The reasonable prudent patient test demands that for
the consent given by the patient to be legally valid, suffi-
cient information must be given to the patient so that the
patient is able to make an informed decision before any
medical treatment is undertaken.40 The assessment of
sufficient information requires the medical professional
to inform the patient of all material risks in the medical
treatment. However, the determination of what consti-
tutes material risks is no longer the sole jurisdiction of
medical practitioners, but considers several other factors
that affect the circumstances of the patient, such as the
likelihood and gravity of risks,41 the desire of the patient

for information,42 and the nature of the procedure,
whether routine or complex.43 Hence, the Malaysian
courts of law will play a crucial role in determining the
standard of care required relevant to the duty to disclose
risks before any medical treatment is undertaken by the
medical professional. Thus, it is imperative that Malay-
sian nurses respect and promote the autonomy of their
patients and help their patients to express health needs
and values so that patients can make informed decisions
about matters affecting life and treatment.
PATIENT’S CAPACITY TO CONSENT
AND THE RIGHT OF A COMPETENT
PATIENT’S REFUSAL OF MEDICAL
TREATMENT
Legally valid consent depends not only on sufficient
information given the patient, but also on whether
the patient has the capacity to give a valid consent.44
To have the necessary capacity to give consent, the
patient must be able to have sufficient understanding
of the nature, purpose, and effect of the proposed treat-
ment45 and the consent must be voluntarily given.46 If
the person has acquired the necessary capacity to give
a legally valid consent, he or she is deemed to be legally
competent to consent or refuse to consent to medical
treatment.
The position of the English common law has been
instrumentally determinative in assessing whether the
Malaysian patient has reached sufficient understand-
ing of the proposed treatment.47 This is because the
Malaysian Mental Disorder Ordinance 195248 does not
have any provisions relevant to issues on capacity.49
The common law through cases such as Re C (Adult:
Refusal of Treatment)50 and Re MB (An Adult: Medical
Treatment),51 decided that the issue of whether the
patient has the capacity to consent hinges on whether
patients are able to appreciate what will be done to
them if they accept treatment, the likely consequences
of leaving their condition untreated, and an under-
standing of the risks and side effects of undertaking
the treatment.52 However, the common law position is
very much similar to the upcoming Malaysian Mental
Health Act 2001 [Act 615]53 that will have a specific pro-
vision on the issue of consent to treatment,54 addressing
the issue of assessment of capacity. In order to assess
whether a patient is capable of giving the required con-
sent, section 77(5) of the 2001 Act sets out the factors
that need to be considered such as whether the patient
understands the condition for which the treatment is
proposed, the nature and purpose of the treatment,
the risks involved in undergoing or not undergoing
Nemie • Challenges for Nurses in Malaysia • 57
the treatment, and whether or not his or her ability
to consent is affected by his or her condition. If after
considering these factors, it is shown that the patient is
incapable of giving consent, only then can consent be
procured from the guardian, if the patient is a minor,
or a relative of the patient, if the patient is an adult.55
If the guardian or relative is nowhere to be found, only
then can consent be obtained from two psychiatrists
who have examined the patient.56
However, once the patient has been determined to
have the required capacity to consent to medical treat-
ment and deemed competent, the patient will also have
the right to refuse it or to choose a different treatment.
As stated by the court in Re MB (An Adult: Medical
Treatment)57 that “a competent [person], who has the
capacity to decide, may, for religious reasons, other rea-
sons, for rational or irrational reasons or for no reason
at all, choose not to have medical intervention, even
though the consequence may be the death.”58 Although
there has yet to be any Malaysian cases directly held on
the issue of refusal of consent by patients, decisions in
cases such as Tan Ah Kau v Government of Malaysia,59
Hong Chuan Lay v Dr Eddie Soo Fook Mun60 and Foo Fio
Na v Hospital Assunta & Anor 61 have constantly reiter-
ated that the adult patient of sound mind has a right to
decide whether they want to choose or refuse medical
treatment.
THE RIGHTS AND NEEDS
OF TERMINALLY ILL PATIENTS
IN MALAYSIA
The ethical principle of the sanctity of life postulates that
life is sacred and should be respected.62 However, there
are many occasions in which a nurse may face dilem-
mas, particularly in caring for terminally ill patients.63
In such instances, patients may demand that their lives
be terminated to reduce their suffering or family mem-
bers may request for their loved ones to be allowed
to die with decency and dignity.64 In addressing such
instances, the Malaysian ethical codes and law have yet
to be developed to the fullest extent. At present, it is
clear that a nurse who deliberately takes active steps to
cause death or hasten death of his or her terminally ill
patient would be committing murder under section 300
of the Penal Code (Amendment) Act 1989 [Act 727]65 if
the death causing or hastening act had been performed
against the wishes of his patient. Even if the patient
consents, the nurse may be committing the offense of
culpable homicide under section 299 of the Penal Code
(Amendment) Act 1989 [Act 727] as it is a direct violation
of the principle of sanctity of life.66 Active measures to
58 • Journal of Nursing Law • Vol. 13, No. 2
cut short the life of a terminally ill patient are forbidden.
As long as there is an intention to kill, it is sufficient to
make it an unlawful act. The reason behind the inten-
tion makes no difference and the request by the patient
would be irrelevant.67
However, withdrawal or withholding treatment includ-
ing withdrawal of nutrition and hydration may be held
lawful in certain circumstances particularly where
recovery is unlikely, or continuance of treatment would
be futile and not in the patient’s best interests. Such
requirements are discussed at length in the case of Aire-
dale NHS Trust v Bland 68 and the decision offers good
precedent by allowing the withholding and withdraw-
ing of treatment when the patient’s condition is futile.
In determining futility, the courts will consider factors
such as whether there was any realistic prospect of the
patient recovering, whether there are new avenues of
treatment that might lead to the patient regaining con-
sciousness, whether there is any clinical benefit to the
patient for the continuation of treatment, and whether
it is in the patient’s best interests to allow him or her to
die naturally.69 The current practice by Malaysian doc-
tors is similar to the decision of Airedale in which the
withholding and withdrawal of treatment is considered
lawful where continued treatment is not in the best
interest of the patient. The difference between Airedale
and the current practice in Malaysia is that after nutri-
tion and hydration are withdrawn from the patient in
the hospital, the patient would be brought home and
nutrition and hydration would continue to be provided
by the patient’s relatives until the patient died.70
TERMINATION OF PREGNANCY
AND RIGHTS OF THE PREGNANT
WOMAN IN MALAYSIA
Termination of pregnancy or abortion remains a con-
troversial and extensively debated subject in Malaysia.
Central to the ethical debate concerning abortion are
considerations of autonomy (of the woman) and rights
(of the woman and the unborn child). It is important
for all medical professionals, including nurses, to
comprehend the basis of the abortion debate from the
perspective of their professions, society as a whole and
the individual women who may have had or are con-
sidering abortions, or others who have been affected by
the subject in some way.71 The nature of abortion and
its associated decision-making process involve sensitive
issues for all involved. Thus, it is essential that nurses
are able to support and inform their patients when
required. The law and professional guidelines must also
be clear and comprehensive to direct nurses’ actions.
Under provision 3.3 of the CPCN72 for registered nurses
in Malaysia, “induced non-therapeutic abortion” is con-
sidered to be amongst the actions that may amount to
an abuse of professional privileges and skills.
Further, under the Malaysian law, sections 312 to 316
of the Penal Code (Revised 1997) Act (Act 574) deal with
the issue of abortion (although the term abortion is not
used, but replaced with “causing miscarriage”). According
to section 312 of the Penal Code, “whoever voluntarily
causes a woman with child to miscarry shall be punished
with imprisonment for a term which may extend to three
years, or with fine, or with both; and if the woman is
quick with child, shall be punished with imprisonment
for a term which may extend to seven years, and shall
also be liable to fine.” This section makes abortion a crim-
inal offense. The term “a woman with child” means that
the act of causing miscarriage must be done on a woman
who is, in fact, pregnant. If the woman is not pregnant,
then the act even if fatal, does not fall within the ambit of
this section.73 The gravity of the punishment of section
312 would depend on the stage of pregnancy. The word
“quick with child” is not defined in the provision but
according to Ratanlal 74 that particular phrase is derived
from the term “quickening,” which refers to the peculiar
sensations experienced by a woman in the 4th or 5th
month of the pregnancy. The term can also be ascribed
to the first perception of the movements of the fetus.
Thus, the punishment will be more severe if the woman
is in the later stages of her pregnancy.
Prior to the revision of the Penal Code in 1989,75
abortion can only be conducted if there is a threat to
the mother’s life. The revision in 1989 made several
amendments, for example, by inserting an exception
in section 312. The exception provides that “this sec-
tion [312] does not extend to a medical practitioner
registered under the Medical Act 1971 [Act 50] who
terminates the pregnancy of a woman if such medical
practitioner is of the opinion, formed in good faith, that
the continuance of the pregnancy would involve risk to
the life of the pregnant woman, or injury to the mental
or physical health or the pregnant woman, greater than
if the pregnancy were terminated.”76 Therefore, abor-
tion will not be an offense under Malaysian law if the
above exception is satisfied.
RESPECTING PRIVACY AND
JUSTIFICATIONS FOR BREACHING
CONFIDENTIALITY IN MALAYSIA
In facilitating patient care, nurses may face dilemmas
between the requirement of patient confidentiality and
the need to disclose information. Provision 3.5 of the

CPCN specifically provides that “the nurse must not
disclose information which she obtained in confidence
from or about a patient unless it is to other profession-
als concerned directly with the patient’s care.” The duty
of confidentiality is not only an ethical duty but a legal
duty as well. Nevertheless, this duty is by no means
absolute as the law recognizes several justifications in
breaching confidentiality.77 In particular, if the patient
has given informed consent to the disclosure78 and
provided that the information is only shared amongst
those who are relevant in maintaining the patient’s
welfare.79 Disclosing without patient’s consent but
with the aim of protecting public interest is another
legal justification for breaching confidentiality. This
was clearly mentioned in the case of W v Egdell,80 in
which W, who pleaded guilty to manslaughter on the
grounds of diminished responsibility, was diagnosed as
suffering from paranoid schizophrenia. On W’s applica-
tion to a mental health tribunal to review his condition
in view of procuring an early discharge, Dr Egdell, a
consultant psychiatrist, was asked by W’s solicitors to
prepare a psychiatric report on W. After examining W,
Dr Egdell’s opined that W is still highly dangerous and
showed persistent interest in explosives. Upon receiv-
ing the report, W’s solicitors withdrew his application
to the mental health review tribunal. However, Dr
Egdell believed that the contents of his report should
be made available both to the medical director of the
hospital that was caring for W and the Home Office, in
order to warn those who were involved in caring for
W at the hospital and to ensure that the public was in
no way endangered by W’s early release. W applied to
the court for an injunction preventing the disclosure of
the report by Dr Egdell. The Court of Appeal refused
to prevent disclosure of the report and held that public
interest justified disclosure to the medical director and
the Home Office. The report described the dangerous-
ness of W that was not known to many. To suppress
it would have prevented material relevant to public
safety from reaching the authorities responsible for
protecting the public. It was in the public interest to
ensure that they based decisions on the need for such
protection on the best available information. However,
before disclosure can be made lawful, there must be
an overwhelming public interest in disclosure. A real
and serious risk of danger to the public must be shown
before the public interest exception is appropriate.
The public interest exception can only justify disclo-
sure so long as the threat persists.81 Thus, although
nurses must respect a patient’s privacy and protect the
confidentiality of all information gained in the context
of the professional relationship, they must also be
Nemie • Challenges for Nurses in Malaysia • 59
acquainted with the relevant laws governing privacy
and confidentiality of personal health information
versus public protection. This will help nurses analyze
what information should be disclosed, to whom, and
for what reasons.
CONCLUSION
In Malaysia and globally, the nursing profession has
developed through various phases in its role as a profes-
sion of primary caregivers in health care settings. The
evolution of the nurses’ roles in upholding legal and
ethical standards clearly reflects society’s changing per-
ceptions about what is considered acceptable behavior in
a caregiving profession. Changes in the legal and ethical
frameworks have undoubtedly impacted the nursing pro-
fession as nurses are encouraged to take on more respon-
sibility for decision making in the patient care process.
It is simply imperative that nurses prepare themselves
with the required knowledge so necessary to address the
complex legal and ethical issues that have challenged
today’s professional nurses in Malaysia. Education of
nurses about the demands of law and ethics is crucial to
nursing practice in order to foster greater accountability,
disseminate knowledge, and promote personal com-
mitment in providing health care to individuals across
their lifespan. Required course offerings in both univer-
sity and private sector nursing curricula that specifically
focus on the appreciation of evolving legal and ethical
standards are essential for the maturation and sophistica-
tion of nursing as a profession in Malaysia.
NOTES
1. Ten Lin Dee, “The help battalion,” Star Special, Ministry
of Health SP5, Tuesday October 17, 2006.
2. Relevant data procured from speech by YB Dato’ Dr
Chua Soi Lek, ex-Minister of Health Malaysia, at the 11th
Joint Malaysia-Singapore Nursing Conference & International
Nursing Conference, Hotel Magellan Sutera Harbour, Kota
Kinabalu, Sabah, March 9, 2006.
3. See http://www.medicalprac.moh.gov.my.
4. Nursing and Midwifery services of Malaysia are leg-
islated to ensure public safety under the Nurses Act 1950
[Act 14] and Midwives Act 1966 [Act 436]. The Nurses Act
1950 [Act 14] was established to control the practice of nurs-
ing that provided for the creation of the Nursing Board for
regulating the training and registration as regards the prac-
tice of nursing. The Midwives Act 1966 [Act 436] establishes
a Midwife Board for the registration of nurse–midwives and
regulates the practice of midwifery in the country.
5. The status of English Law applicable in Malaysia was
reaffirmed by Lord Russell of Killowen when delivering the
opinion of the Privy Council in Lee Kee Kong v Empat Nombor
Ekor (N.S.) Sdn. Bhd. [1976] 2 MLJ 93, at p. 95.
60 • Journal of Nursing Law • Vol. 13, No. 2
6. Cohen, J. S., & Erickson, J. M. (2006, December). Ethi-
cal dilemmas and moral distress in oncology nursing practice.
Clinical Journal of Oncology Nursing. Oncology Nursing Society.
10, 775–781.
7. Jameton, A. (1984). Nursing practice: The ethical issues.
New Jersey: Englewood Cliffs.
8. Ham, K. (2004). Principled thinking: A comparison of
nursing students and experienced nurses. Journal of Continuing
Education in Nursing. Slack Inc. 35, 66–73.
9. The Nursing Board of Malaysia is the regulatory body
responsible for identifying and enforcing the standard of nurs-
ing and expects all registered nurses to practice and conduct
themselves within the parameters of the Code.
10. A registered nurse is a person who has undergone a
formal course of nursing education and registered with the
Malaysian Nursing Board.
11. Esterhuizen, P. (2006, January). Is the professional
code still the cornerstone of clinical nursing practice? Journal
of Advanced Nursing. Blackwell Synergy. 53(1), 104–110.
12. Beauchamp, T. L., & Childress, J. F. (2001). Principles
of biomedical ethics (5th ed.). New York: Oxford University
Press.
13. Puteri Nemie, J. K. (2007). Law and ethics relating to
the medical profession. Kuala Lumpur: International Book
Services.
14. Provision 1.1 of the Code of Professional Conduct for
Nurses (CPCN) 1998 stated that “the nurse should work co-
operatively with the patient and his family and respect their
decisions about the patient’s care.”
15. Ibid.
16. These conducts are mentioned in provisions 4.1–4.4. In
particular, “the nurse is expected to report to the appropriate
authority of any colleagues who exhibits unethical behaviour
or who is incompetent to practice due to the influence of drug,
alcohol, physical or mental capacity.”
17. Ibid. The nurse must be honest in declaring herself as
incompetent in undertaking certain functions that she is not
competent to do as she has not gone through an approved
course or education.
18. This concept deals with equitable distribution of
benefits and burdens. It is described in terms of fairness
and “what is deserved.” A person has been treated justly
when he has been given what he is due or owed. What are
the things, which he deserves or can legitimately claim?
For instance, what does a just society provide in the way of
procedural justice or due process? What does a just society
provide regarding distributive justice, when it must allocate
scarce resources such as health care? When one is harmed,
how does a just society respond in regard to compensatory
justice?
19. Lord Templeman in Sidaway v Bethlem Royal Hospital
Governors [1985] 1 All ER 643, at p. 666, commented that “[a]
patient may make an unbalanced judgment because he is
deprived of adequate information. A patient may also make
an unbalanced judgment if he is provided with too much
information and is made aware of possibilities which he is not
capable of assessing because of his lack of medical training,
his prejudices or personality.”
20. Varcoe, C., Doane, G., Pauiy, B., Rodney, P., Storch,
J. L., Mahoney, K., et al. (2004). Ethical practice in nursing:
Working the in-betweens. Journal of Advanced Nursing. Black-
well Synergy. 45, 316–325.
21. Cohen, J. S., & Erickson, J. M. (2006, December). Ethi-
cal dilemmas and moral distress in oncology nursing practice.
Clinical Journal of Oncology Nursing. Oncology Nursing Society.
10, 775–781.
22. Bullough, B. (1976, March). The law and the expanding
nursing role. American Journal Public Health. American Public
Health Association. 66(3), 249–254.
23. Provision 2 of the CPCN defines “negligence” as the
“failure to discharge a duty to use reasonable care.” Further,
“reasonable care” refers to the care that would be exercised by
a reasonable competent nurse.
24. Dimond, B. (2005). Legal aspects of nursing. Essex:
Pearson Education Ltd.
25. This is also known as the Bolam principle, which
gives prominence to evidence adduced by the medical pro-
fession as to 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”—per McNair J. in Bolam v
Friern Hospital Management Committee [1957] 1 WLR 582, at
p. 587.
26. Tingle, J., & Cribb, A., (2005). Nursing law and ethics.
Oxford: Blackwell Publishing.
27. According to Lord Pearce in Imperial Chemical Indus-
tries v Shatwell [1965] Ac 656 at p. 685: “The doctrine of vicari-
ous liability has not grown from any very clear, logical or legal
principle but from social convenience and rough justice. The
master having (presumably for his own benefit) employed the
servant, and being (presumably) better able to make good any
damage which may occasionally result from the arrangement,
is answerable to the world at large for all the torts committed
by his servant within the scope of it.”
28. The determination of “employee” requires the court to
look at the nature of the contract of employment, whether it
is a contract of service or employment—where the person is
employed as an employee or whether it is a contract for ser-
vices in which the person is employed as an independent con-
tractor. Generally, an employer is not vicariously liable for
actions of independent contractors. See Ready Mixed Concrete
(South East) Ltd v Minister of Pensions and National Insurance
[1968] 2 QB 497; Mat Jusoh bin Daud v Syarikat Jaya Seberang
Takir Sdn Bhd [1982] 2 MLJ 71.
29. The fact that an employee was doing his job negli-
gently or carelessly, does not take him outside the course of
employment provided the act or mode was authorized by the
employer and the employee was not on a frolic of his own.
This can be demonstrated in the case of Century Insurance Co
v Northern Ireland Road Transport Board [1942] AC 509 and
Mohd Yeanikutty v Far East Truck Inc Manufacturing (Pte) Ltd
[1984] 2 MLJ 91.

30. [2001] 1 MLJ 35.
31. [2006] 5 MLJ 94.
32. According to section 10(2) of the Malaysian Civil Law
Act 1956 [Act 67], “in any proceedings for contribution under
this section the amount of contribution recoverable from any
person shall be such as may be found by the Court to be just
and equitable having regard to that person’s responsibility for
damage and the Court shall have power to exempt any person
from liability to make contribution, or to direct that the con-
tribution to be recovered from any person shall amount to a
complete indemnity.”
33. Supra.
34. Ibid. Section 32(a)–(d).
35. In Chatterton v Gerson [1981] 1 All ER 257, Bristow J.
stated “once the parties is informed in broad terms of the
nature of the procedure which is intended, and gives her con-
sent, that consent is real . . . if the information is withheld in
bad faith, the consent will be vitiated by fraud . . . but it would
be no defence to an action based on trespass to person if no
explanation had in fact been given. The consent would have
been expressed in form only, not in reality.”
36. The momentum of “patient autonomy triumphing
over medical paternalism” has had enormous influence on
the development of medical jurisprudence in disclosure of
risks throughout the common law jurisdictions including
England—Chester v Afshar [2004] 4 All ER 587, Canada—Reibl
v Hughes [1980] 2 SCR 880 and Australia—Rogers v Whitaker
(1992) 175 CLR 479.
37. The Federal Court is the highest court in the hierarchy
of courts in Malaysia and is established under Article 121(2)
of the Federal Constitution.
38. [2007] 1 MLJ 593.
39. (1992) 175 CLR 479.
40. The High Court in Rogers v Whitaker [1992] 175 CLR,
at p. 490, concluded that disclosure of risks include “to warn
a patient of a material risk inherent in the proposed treat-
ment; a risk is material if, in the circumstances of a par-
ticular case, a reasonable person in the patient’s position, if
warned of the risk, would be likely to attach significance to
it or if the medical practitioner is or should reasonably be
aware that a particular patient, if warned of the risk, would
be likely to attach significance to it. This is subject to thera-
peutic privilege.”
41. For instance, in Rogers v Whitaker supra, although the
likelihood of risk is remote, occurring one in approximately
14,000 such procedures, but the gravity of losing sight in one
of the patient’s eyes was significantly increased as the patient
was blind in the other eye.
42. Circumstances in which patient asks questions that
reveal their personal fear and concerns would alert medical
practitioners to the fact that they attach significance to the
risks. However, there is no requirement for a patient to ask
specific questions in order for the risks to be material. This
was highlighted by Kirby J. in Rosenberg v Percival (2001) 205
CLR 434 at paragraphs [140]–[145], in which his Lordship stated
that a doctor’s duty to inform is “not dependent on questions
Nemie • Challenges for Nurses in Malaysia • 61
asked by the patient who may be completely unaware of the
issues to which his or her mind should be addressed.”
43. The Federal Court in Foo Fio Na v Dr Soo Fook Mun &
Anor [2007] 1 MLJ 593 at paragraph [48], had adopted part of
King C. J.’s judgment in F v R (1983) 33 S.A.S.R. 189, at p. 191,
citing Bristow J. in Chatterton v Gerson [1980] 3 WLR 1003, at
p. 1014, by stating that “it is the duty of a doctor to explain
what he intends to do, and its implications, in the way a care-
ful and responsible doctor in similar circumstances would
have done . . . and that duty extends, not only to the disclo-
sure of real risks of misfortune inherent in the treatment but
also any real risk . . . especially if it involves major surgery.”
See Puteri Nemie J. K. (2007). The reasonable prudent patient
test: A viable test for this millennium? The Law Review, 4,
607–617. Kuala Lumpur, Sweet & Maxwell Asia.
44. Stauch, M. S., Tingle, J., & Wheat, K. (2002). Source-
book on medical law. London: Cavendish Publishing Limited.
45. Ibid.
46. Consent must be given through the patient’s own free
will, with no duress or undue influence. See Freeman v Home
Office [1984] 1 All ER 1036 and Re T (Adult: Refusal of Medical
Treatment) [1992] 3 WLR 782.
47. The case of Re C (Adult: Refusal of Treatment) [1997]
2 FCR 541 laid the appropriate test to determine whether
the patient has sufficient “understanding” to be considered
fully competent to consent or refuse to consent to medical
treatment.
48. The law on mental health in Malaysia is being regu-
lated by the Mental Disorders Ordinance 1952. The 1952
Ordinance, which concerns the proceedings for the admission
and detention of the mentally ill person, has been criticized
as being outdated and does not address the present social
conditions in Malaysia.
49. Sections 3 and 5 of the Malaysian Civil Law Act 1956
[Act 67] provide for the application of English common law in
Malaysia unless other provisions are or shall be made by any
written law.
50. [1994] 1 All ER 819, [1994] 1 WLR 290.
51. [1997] 2 FLR 426.
52. Ibid. Butler Sloss L. J. in Re MB stated that “a person lacks
capacity if some impairment or disturbance of mental function-
ing renders the person unable to make a decision whether to
consent to or to refuse treatment. That inability to make a deci-
sion will occur when (a) the patient is unable to comprehend
and retain the information which is material to the decision,
especially as to the likely consequences of having or not having
the treatment in question; (b) the patient is unable to use the
information and weigh it in the balance as part of the process
of arriving at the decision.”
53. The Malaysian Mental Health Act 2001 [Act 615] has
said to comprehensively cover all aspects of mental health
care by consolidating the laws relating to mental disorders
and to provide for the admission, detention, lodging, care,
rehabilitation, control, and protection of persons who are
mentally disordered and for related matters. At this time, the
2001 Act has yet to come in force notwithstanding it received
62 • Journal of Nursing Law • Vol. 13, No. 2
Royal Ascent on September 6, 2001 and was published in the
Gazette on September 27, 2001.
54. Section 77.
55. Section 77(1)(b).
56. Section 77(1)(c).
57. Supra.
58. [1997] 2 FCR 541 at p. 561.
59. [1997] 2 AMR 1382.
60. [1998]5 CLJ 251.
61. [1999] 6 MLJ 738.
62. The Declaration of Geneva mentioned the utmost
respect for human life by stating that “all life is sacred on
purely religious grounds, on the premise that all life comes
from God.”
63. McHale, J. (2007). Law and nursing. London: Butter-
worth-Heinemann.
64. This issue was debated in the famous Diane Pretty
case who requested her husband to end her life. She was
frightened and distressed by the suffering and indignity
she would have to bear if the disease was allowed to run its
natural course. See Pretty; X and Y v The Netherlands; (1985) 8
EHRR 235; R (Pretty) v Director Of Public Prosecutions (Secretary
Of State For The Home Department Intervening); [2001] UKHL
61; [2002] 1 AC 800; [2001] EWHC Admin 788; Pretty v UK;
2346/02.
65. The Malaysian Penal Code (Revised 1997) [Act 574]
modeled after the Indian Penal Code provides certain provi-
sions relevant to “causing death intentionally.”
66. Section 299 provides that “whoever causes death by doing
an act with the intention of causing death, or with the intention
of causing such bodily injury as is likely to cause death, or with
the knowledge that he is likely by such act to cause death, com-
mits the offence of culpable homicide.” Explanation 1 given
under the section stated that “a person who causes bodily injury
to another who is labouring under a disorder, disease, or bodily
infirmity, and thereby accelerates the death of that other, shall
be deemed to have caused his death.”
67. The principle in R v Donovan [1934] 2 KB 498 is closely
followed, in which it was held that if an act is unlawful in the
sense of being in itself a criminal act, it cannot be rendered
lawful merely because the person to whose detriment it is
done consents to it. No person can license another to commit
a crime.
68. [1993] 1 All ER 821.
69. Further discussions on this can be found in Airedale
NHS Trust v Bland supra; Frenchay Healthcare NHS Trust v
S [1994] 2 All ER 403; Trust A and another v V and another
[2005] All ER 198.
70. Puteri Nemie J. K. (2007). Law and ethics relating to
the medical profession. Kuala Lumpur: International Book
Services.
71. Mason, J. K., & McCall, S. (2002). Law and medical ethics.
London: Butterworths.
72. Supra.
73. In Munah bt Ali v Public Prosecutor[1958] 1 MLJ 159, the
defendant was charged under section 312 of the Penal Code for
voluntary causing a female Chinese woman to miscarry and
such miscarriage was not caused in good faith for the purpose
of saving the life of the woman. However, there was evidence
to show that although there was an insertion of an instrument
into the woman’s vagina causing her to hemorrhage, the woman
was not pregnant at the time the act was done. This means that
the requirements of section 312 have not been fulfilled.
74. Ratanlal, R., Thakore, D., Desai, D., & Jain, M. (1988).
Law of crimes (23rd ed., p. 1236). New Delhi: Bharat Law
House.
75. The Penal Code went through several revisions in 1989
and 1997.
76. Further discussions on sections 312 and 314 of the
Penal Code can be found in Ong Bak Hin v General Medical
Council [1956] 1 MLJ 117; Chan Phuat Khoon v Public Prosecutor
[1962] 1 MLJ 127; Public Prosecutor v Dr Nadason Kanalingam
[1985] 2 MLJ 122.
77. In AG v Guardian Newspapers (No 2) [1990] AC 109, at
p. 281, Lord Goff stated that “a duty of confidence arises when
confidential information comes to the knowledge of a person
(the confidant) in circumstances where he has notice, or is
held to have agreed, that the information is confidential, with
the effect that it would be just in all the circumstances that he
should be precluded from disclosing the information to others”
78. As discussed earlier, to give a legally valid consent,
patient must have the mental competence, sufficient under-
standing of the treatment proposed and with their own free
will. In other words, there must not exist any duress or undue
influence.
79. Sir Stephen Brown in Re C (A Minor) (Evidence: Confi-
dential Information) (1991) 7 BMLR 138, at p. 143, stated that:
“I believe that a judge, if carrying out some balancing exercise,
would be fully justified in coming down clearly in favour of
admitting the evidence. It should also be recognised that the
disclosure of the material contained in this affidavit was the
subject of a restricted disclosure. It was being made available
only to the judge who had to decide the application, and to
those who were also bound by the confidentiality of the hear-
ing in chambers.”
80. [1990] 1 All ER 835. This case was approved and applied
in the local case of Public Prosecutor v Dato’ Seri Anwar bin
Ibrahim & Anor [2001] 3 MLJ 193, where the court held that
there is no privilege under the law for a doctor to refrain from
disclosing what transpired between him and his patient.
81. [1990] 1 All ER 835, at pp. 851–852.
Biographical Data. Jahn Kassim Puteri Nemie, LLB(Hons),
MCL, PhD, is an associate professor in the Department of
Private Law, Ahmad Ibrahim Kulliyyah of Laws, International
Islamic University Malaysia, Kuala Lumpur, Malaysia.
Correspondence regarding this article should be directed to
Jahn Kassim Puteri Nemie, LLB(Hons), MCL, PhD, Ahmad
Ibrahim Kulliyyah of Laws, International Islamic University
Malaysia, PO Box 10, 50728 Kuala Lumpur, Malaysia. E-mail:
nemie@iiu.edu.my