End-Of-Life Decisions in Malaysia: Adequacies of Ethical Codes and Developing Legal Standards

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End-of-life decisions in Malaysia: Adequacies of Ethical Codes and

Developing Legal Standards
Article in Journal of Law and Medicine · June 2015
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End-of-life decisions in Malaysia: Adequacies
of ethical codes and developing legal
standards
Puteri Nemie Jahn Kassim and Fadhlina Alias*
End-of-life decision-making is an area of medical practice in which ethical
dilemmas and legal interventions have become increasingly prevalent. Deci-
sions are no longer confined to clinical assessments; rather, they involve wider
considerations such as a patient’s religious and cultural beliefs, financial
constraints, and the wishes and needs of family members. These decisions
affect everyone concerned, including members of the community as a whole.
Therefore it is imperative that clear ethical codes and legal standards are
developed to help guide the medical profession on the best possible course of
action for patients. This article considers the relevant ethical codes and legal
provisions in Malaysia governing certain aspects of end-of-life decision-
making. It highlights the lack of judicial decisions in this area as well as the
limitations with the Malaysian regulatory system. The article recommends the
development of comprehensive ethical codes and legal standards to guide
end-of-life decision-making in Malaysia.
INTRODUCTION
Modern advances in medicine have redefined the dimensions of the dying process, raising questions
about the ethical and legal validity of medical procedures that are carried out in end-of-life care. Due
to the nature of such care, decisions to prolong or discontinue life-supporting treatment directly impact
upon the concept of sanctity of life, which forms the most fundamental principle of bioethics. Doctors
are often confronted with the dilemma between preserving the sanctity of life and restoring a patient’s
quality of life, as well as balancing their personal beliefs, professional duties and moral obligations
with a patient’s right of self-determination, personal values and religious beliefs. Although aspects of
end-of-life decisions are not widely discussed in Malaysia, there is a conspicuous need for such ethical
issues to be addressed to assist Malaysian doctors in treating terminally ill patients. One of the
plausible solutions to address these challenges is through the application of professional codes of
conduct that govern medical practice. Such ethical codes play a pivotal role to guide doctors in the
proper performance of their duties, and in Malaysia need to be enhanced to mitigate and resolve
ethical conflicts at the end of life. In addition, comprehensive enforcement of such guidelines would
be attainable when affirmed and backed by law. The development of compatible legal standards would
thus serve to regulate end-of-life decisions and provide clear guidance to doctors to ensure that their
actions do not culminate in unwanted legal repercussions.
THE NATURE AND SCOPE OF END-OF-LIFE CARE

End-of-life care refers to the health and social care system required to address the physical, spiritual,
emotional and social needs of patients who are suffering from serious illnesses, incurable diseases or
are in the final stages of their lives.1 From the health care perspective, end-of-life care is a specific
*
Puteri Nemie Jahn Kassim, Professor of Law, Department of Civil Law, Ahmad Ibrahim Kulliyyah of Laws, International
Islamic University Malaysia; Fadhlina Alias, Doctor of Philosophy in Law Student, Ahmad Ibrahim Kulliyyah of Laws,
International Islamic University Malaysia.
Correspondence to: puterinemie@hotmail.com.
1
Colello KJ et al, “End-of-Life Care: Services, Costs, Ethics, and Quality of Care” in Adams SB (ed), Comfort and Care at the
End of Life (Nova Science Publishers, 2011) p 46; Tallon C, “Ethics and End of Life Care” (2012) 1(1) JoOPM 51 at 52.
934 (2015) 22 JLM 934
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End-of-life decisions in Malaysia: Adequacies of ethical codes and developing legal standards
component of palliative care,2 which also entails the delivery of hospice care, and focuses more on
providing a comfortable environment to restore and improve patients’ quality of life as far as it is
practically possible, rather than to cure.3
Although both palliative care and hospice care share the same objectives, there are some
differences in their respective scope of services. Palliative care aims to reduce the severity of disease
symptoms for patients who are seriously ill, and can be delivered along with curative treatment at any
time during the disease trajectory.4 In addition, palliative care is not restricted to patients near the end
of life and can be used in both acute and long-term settings.5 Hospice care, however, is focused on
terminally ill patients, who no longer seek curative medical treatment, and is offered when the patient
is in the final stages of life.6 It may be provided either at a hospital or in a separate nursing or hospice
facility. A salient similarity between palliative care and hospice care is that both involve the
mobilisation of an interdisciplinary team of professionals comprising doctors, nurses, social workers
and psychologists, with the assistance of chaplains, nutritionists, pharmacists and others.7 Due to the
nature of its setting, in end-of-life care, doctors are often confronted by ethical dilemmas in making
decisions that could hasten death by active8 or passive9 means, which are referred to as “end-of-life
decisions”.10
THE ETHICAL DILEMMAS IN END-OF-LIFE DECISIONS

Decision-making in end-of-life care is often an intricate process, as the clinical evaluation of a
terminally ill patient at this stage not only involves his or her physical prognosis, but considerations
relating to the patient’s emotional wellbeing such as their personal beliefs, values and customs which
may be influenced by their religion and level of spirituality. This is augmented by the emergence of
sophisticated devices and treatment in medicine such as life-sustaining interventions, which has raised
many ethical issues relating to the dying process where patients’ values and quality of life are
especially significant. The most pronounced ethical dilemma in end-of-life decisions unequivocally
lies at the core of bioethics itself: the sanctity of life.
Both traditional and modern ethics subscribe to and uphold the concept that life is sacrosanct and
must be treated with the utmost respect and dignity. An intentional act to end one’s life threatens the
core of this doctrine and is therefore considered to be a grievous wrong. According to Kuhse, the
sanctity-of-life ethics is one that “absolutely prohibits the termination of life and that sees all human
2
Palliative care is defined by the World Health Organization as: “an approach that improves the quality of life of patients and
their families facing the problem associated with life-threatening illness, through the prevention and relief of suffering by means
of early identification and impeccable assessment and treatment of pain and other problems, physical, psychosocial and
spiritual.” See World Health Organization, “WHO Definition of Palliative Care”, http://www.who.int/cancer/palliative/
definition/en.
3
Colello et al, n 1; Chater K and Tsai CT, “Palliative Care in a Multicultural Society: A Challenge for Western Ethics” (2008)
26(2) Australian Journal of Advanced Nursing 95 at 96; University of Minnesota Centre for Bioethics, End of Life Care: An
Ethical Overview (2005) p 16, http://conservancy.umn.edu/handle/189.
4
Rome RB et al, “The Role of Palliative Care at the End of Life” (2011) 11(4) Ochsner J 348 at 348.
5
University of Minnesota Centre for Bioethics, n 3, p 16.
6
Colello et al, n 1, p 47.
7
Colello et al, n 1, p 47; University of Minnesota Centre for Bioethics, n 3, p 16; Kinzbrunner BM, “Palliative Care
Perspectives” in Kuebler KK, Davis MP and Moore CD (eds), Palliative Practices: An Interdisciplinary Approach (Elsevier
Mosby, 2005) p 10.
8
Active euthanasia occurs whenever positive and deliberate steps are taken which result in death such as injecting a lethal dose
of medication into the patient or where the doctor assists the patient to bring about his or her death.
9
Passive euthanasia occurs where available measures to prolong life are withheld or withdrawn, or in other words, no positive
action is taken to extend the life of a terminally ill patient. This includes not commencing treatment if it is considered futile and
will not help to improve the patient’s condition, disconnecting life support systems, discontinuing medical treatment necessary
to sustain life or withholding supply of fluids and nutritional feeding.
10
See Harris J, “Consent and End of Life Decisions” (2003) 29(1) J Med Ethics 10 at 11.
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Kassim and Alias
life, regardless of its type or quality, as of infinite and intrinsic worth”.11 Keown similarly
acknowledges that because all lives are intrinsically valuable, it is always wrong intentionally to kill
an innocent human being.12
The same view is imbued in the religious approach to bioethics; the only difference is that while
modern ethics views sanctity on the basis of the intrinsic value of human life, all major religions (in
particular, Islam, Judaism and Christianity) attribute the sacredness of the principle to the fact that all
life comes from and belongs to God, and only God has the right to take it away.13 Human beings must
therefore protect the gift of life to the best of their ability. To commit any act intentionally that
threatens and violates its sanctity is to defy the will of God blatantly and place the wrongdoer in sin.
Nevertheless, advances in both technology and medicine in the past century as well as the shift in
the doctor-patient relationship have led to patient autonomy taking precedence over “sanctity of life”.
A doctor may therefore:
not restrict nor negate the free wishes of an individual with respect to his own body … [o]ne must
facilitate any desired action acceptable to a person’s own judgment and in accordance with his own
choice.14
This triggers an ethical dilemma, particularly when the patient’s autonomous choice is
contradictory to what the doctor perceives to be in the patient’s best interests, and is antithetical to the
doctor’s moral obligation and professional integrity. Many ethicists contend that doctors have a moral
obligation that may outweigh their duty to respect a patient’s wishes, particularly where end-of-life
decisions are concerned.15 A doctor’s obligation to his or her patient extends beyond the prevention of
harm, and includes restoration and improvement of the quality of life.16 Further, patients’ preferences
are not decisive unless a beneficial medical perspective is present.17 Therefore, doctors are not obliged
to honour requests for interventions that confer no medical benefit to the patient or treatments that
would expose the patient to more harm than good, as this would constitute a direct violation of the
values of the medical profession and show disrespect towards the concept of patient autonomy.18
This conflict is predominant in two aspects of end-of-life care: withholding and withdrawal of
medical interventions and palliative sedation. Medical interventions such as resuscitation, ventilation
and the use of antibiotics in cases of infection may operate to save and prolong the life of a terminally
ill patient. However, such treatments may run counter to the wishes of patients who may request that
these be withdrawn or may refuse them altogether. For example, some patients may view
cardiopulmonary resuscitation as a death-delaying act, which conflicts with their values and beliefs
that one should not alter the course of nature. In cases where the condition of the patient necessitates
11
Kuhse H, “Debate: Extraordinary Means and the Sanctity of Life” (1981) 7(2) J Med Ethics 74 at 75.
12
Keown J, “Courting Euthanasia? Tony Bland and the Law Lords” (1993) 9(3) Ethics Med 34.
13
See, for example, Khan FA, “Religious Teaching and Reflections on Advance Directive-Religious Values and Legal Dilemmas
in Bioethics: An Islamic Perspective” (2002) 30(1) Fordham Urb LJ 267; Zahedi F, Larijani B and Bazzaz JT, “End of Life
Ethical Issues and Islamic Views” (2007) 6 Iran J Allergy Asthma Immunol 5; Markwell H, “End-of-Life: A Catholic View”
(2005) 366(9491) Lancet 1132; Dorff EN, “End-of-Life: Jewish Perspectives” (2005) 366(9488) Lancet 862.
14
Steinberg A, “Medical Ethics” in Encyclopedia of Jewish Medical Ethics: A Compilation of Jewish Medical Law on All
Topics of Medical Interest (Feldheim Publishers, 2003) p 13. According to Beauchamp and Childress, apart from being
voluntary and not subjected from any controlling influences or constraints from others, autonomous decisions are those which
are made with substantial understanding upon being properly informed. There is thus a duty on the part of the doctor to disclose
medical information that is necessary for the patient to form an autonomous decision. See Beauchamp TL and Childress JF,
Principles of Biomedical Ethics (5th ed, Oxford University Press, 2001) pp 57-103.
15
See, for example, Baumgarten E, “The Concept of Patient Autonomy: Part 1” (1999) 2(3) Medical Updates 1; Brett AS and
McCullough LB, “Addressing Requests by Patients for Nonbeneficial Interventions” (2012) 307(2) JAMA 149; Billings JA and
Krakauer EL, “On Patient Autonomy and Physician Responsibility in End-of-Life Care” (2011) 171(9) Arch Intern Med 849;
Pellegrino ED and Thomasma DC, “The Conflict between Autonomy and Beneficence in Medical Ethics: Proposal for a
Resolution” (1987) 3 J Contemp Health L & Pol’y 23.
16
Pellegrino and Thomasma, n 15 at 28.
17
Brett and McCullough, n 15 at 149.
18
Brett and McCullough, n 15 at 150. Also see Billings and Krakauer, n 15 at 852.
936 (2015) 22 JLM 934

respiratory therapy, some patients and family members may regard it as a non-beneficial treatment that
impedes what they believe should be the natural process of dying.19 Consequently, such patients or
their family members may seek a do-not-resuscitate order from their doctor.
In these circumstances, doctors are confronted with the ethical dilemma whether to adhere to the
patient’s and family members’ wishes or whether to decide on what is the best course of action for the
patient. If death is hastened as a consequence of withdrawal of treatment, would such a decision
violate the doctor’s moral obligation to prevent harm to the patient? It has been argued that it is
permissible to withhold or withdraw treatment and allow the progression of the patient’s natural
death.20 However, any decision to withhold or withdraw treatment should be based upon the
expectation that the patient can no longer benefit from that treatment, it is medically futile21 and the
doctor’s intention when doing so must be to relieve the patient of the burdens associated with that
treatment.22
Several ethical concerns have also been raised, particularly on the unknown effect that palliative
sedation23 may have on hastening death, and the potential abuse of patients who are rendered
unconscious during the process, in which right to autonomy is inhibited.24 On the risk of exposing
patients to a premature death, two major arguments have been put forward to justify and dispel this
notion. The first is the doctrine of double effect, which is based on two propositions: the doctor’s
motivation is to ease suffering; and the treatment must be proportional to the illness.25 Secondly, it has
been argued that the fear that palliative sedation hastens the dying process is unfounded because
studies have shown that sedatives administered appropriately and proportionately are able to prolong
the chances of survival and improve the quality of life.26
Ethical challenges are further compounded in cases of vulnerable and incompetent patients, whose
autonomy is compromised due to their restricted, or lack of, ability to form mature and rationale
thoughts, and are thereby heavily dependent on outside influences or authorities to make decisions in
19
University of Minnesota Centre for Bioethics, n 3, pp 25-26.
20
Kinsella J and Booth MG, “Ethical Framework for End of Life Decisions in Intensive Care in the UK” (2007) 56(4) J Natl
Inst Public Health 387 at 388.
21
Medical futility is described as an intervention that will not be able to reach its intended goal. See Cavalieri TO, “Ethical
Issues at the End of Life” (2001) 101(10) J Am Osteopath Assoc 616 at 620. The determination of what may constitute medical
futility itself raises several ethical concerns. The fact that such a decision rests solely in the hands of the health care providers
may lead to possibilities of the discretion being exercised arbitrarily. For instance, medical treatment may be discontinued not
only because it no longer benefits the patient, but such continuation may be considered futile in order to save cost: see
University of Minnesota Centre for Bioethics, n 3, p 31. In cases of a patient who has lost decision-making capacity without
having issued any advance directive, conflicts may occur because of the proxy decision-maker’s misunderstanding of the
prognosis, difference in values or attitude towards end-of-life care: see Cavalieri at 620.
22
Kinsella and Booth, n 20 at 388. The justification for the permissibility of withdrawing medical treatment is based on the
distinction between positive acts and omissions. According to the acts-omissions distinction: “in certain contexts, failure to
perform an act, with foreseen bad consequences of that failure, is morally less bad than to perform a different act which has the
identical foreseen consequences. It is worse to kill someone than to let them die.” See Glover J, Causing Death and Saving
Lives (Penguin, 1977) pp 92-93; McLachlan HV, “The Ethics of Killing and Letting Die: Active and Passive Euthanasia” (2008)
34(8) J Med Ethics 636 at 637-638. Thus, acting to kill a patient even for good reasons may seem wrong, whereas omitting to
act by withholding life-saving treatment may seem right in certain compelling circumstances.
23
Palliative sedation refers to the use of medications to induce decreased or absent consciousness to the extent that the patient
will no longer feel pain or other forms of distress. See Olsen ML, Swetz KM and Mueller PS, “Ethical Decision Making with
End-of-Life Care: Palliative Sedation and Withholding or Withdrawing Life-Sustaining Treatments” (2010) 85(10) Mayo Clin
Proc 949.
24
University of Minnesota Centre for Bioethics, n 3, p 33.
25
Malik MM, “Islamic and Catholic Bioethics of Pain Medication: A Response to Mercy Argument” (2012) 9(1) Journal of
Islam in Asia 213 at 218. The doctrine applies if: (1) the desired outcome is judged to be good, for example, relief of suffering
and is not in itself immoral; (2) the bad outcome, for example, death of patient is not intended, even if it is foreseen; (3) the
good outcome is not achieved by means of the bad; and (4) the good outcome outweighs the bad.
26
Tallon, n 1 at 53-54; Olsen, Swetz and Mueller, n 23 at 951; University of Minnesota Centre for Bioethics, n 3, p 28.
(2015) 22 JLM 934 937

Kassim and Alias
their best interests. The absence of an advance directive on a certain course of medical action27 by a
patient makes end-of-life decisions even more difficult as doctors have to rely on the patient’s family
members to decide what would have likely been the wishes of the patient.
THE CURRENT REGULATORY SYSTEM IN MALAYSIA WITH REGARD TO END-OF-LIFE
DECISIONS
Most hospitals in Malaysia now have dedicated palliative care units or palliative care teams.28 In
response to the development of palliative care and the recognition of palliative medicine as a medical
subspecialty by the Ministry of Health Malaysia (MOH), an operational policy on palliative care
services was issued by the MOH’s Medical Development Decision in 2010.29 The policy sets out the
scope, components and types of palliative care services based on an integrated palliative care model,
to be carried out by hospitals in collaboration with community-based centres. There are currently over
20 palliative care associations across the country, with Sabah having the highest number of
non-governmental hospice and palliative care providers.30 Some of the major palliative care
organisations (for example, Hospis Malaysia) have also issued guidelines for those caring for patients
with life-limiting illnesses.31
The current ethical and legal positions on end-of-life decisions in Malaysia can be determined
through certain ethical codes and statutory provisions. To date, however, no Malaysian judicial
decision on the matter exists as issues relating to end-of-life care are considered to be purely medical
decisions. They are yet to be brought before the Malaysian courts for resolution.
Codes of ethics
The three main ethical codes governing the conduct of medical practitioners, in particular doctors and
nurses, in Malaysia are: the Code of Medical Ethics (CME), the Code of Professional Conduct
(CPCM) and the Code of Professional Conduct for Nurses (CPCN).
Code of Medical Ethics
The CME was adopted in 2001 at the 41st Annual General Meeting of the Malaysian Medical
Association. The CME lays down guidelines for the proper conduct of doctors practising in Malaysia,
and is divided into eight sections ranging from ethical rules relating to doctor-patient relationship,
setting up practice and the role of the Association’s Ethics Committee in promoting ethical conduct
and resolving disputes. Under s I, “Good Medical Practice”, the CME recognises the belief in God as
the foremost tenet in Malaysia’s guiding principles and acknowledges the diversity of the nation’s
population in terms of race, religion and culture. Section I also outlines some of the core ethical values
of the communities in Malaysia:
• The Physician must maintain the utmost respect for human life and the human person.
• The Physician must stay abreast and practice in accordance with current medical knowledge,
continually improve his skills and seek help whenever needed.
27
An advance directive is an oral or written instruction by a person regarding his or her future medical care in the event that he
or she becomes incapable of interaction.
28
In 2001, results of a survey conducted showed a total of 11 palliative care units and 49 palliative care teams in government
hospitals, and a total of 18 palliative care associations in Malaysia. See Leong RLB, “Palliative Care in Malaysia: A Decade of
Progress and Going Strong” (2004) 17(3-4) J Pain Palliat Care Pharmacother 77 at 79. Some major private medical institutions
also incorporate palliative care and hospice care into their services, for example, Perdana Specialist Hospital, one of the medical
centres under KPJ Healthcare Berhad, which is the leading private health care service provider in Malaysia, offers home nursing
services to terminally ill patients. See KPJ Perdama Specialist Hospital, “Home Care Services”, http://www.
perdana.kpjhealth.com.my.
29
Medical Development Division, Ministry of Health Malaysia, Palliative Care Services: Operational Policy (2010),
http://www.moh.gov.my.
30
Hospis Malaysia lists over 20 hospice and palliative care providers (both semi-governmental and non-governmental
associations) on its website. See Hospis Malaysia, “Palliative Care Providers in Malaysia”, https://www.hospismalaysia.org/
resources/palliative-care-providers. The Malaysian Hospice Council acts as the umbrella body for hospice and palliative care
organisations in Malaysia.
31
Hospis Malaysia, A Carer’s Guide (2011), https://www.hospismalaysia.org/resources/a-carers-guide.
938 (2015) 22 JLM 934

• The Physician should not recommend nor administer any harmful material and should render help
regardless of the financial ability, ethnic origin or religious belief of the patient.
• The Physician should protect the patient’s confidentiality and adopt an appropriate manner of
communication. He should examine a patient of the opposite sex in the presence of a third person
whenever feasible.
• He should not criticize another Physician in the presence of patients or health personnel.
The first point accords with the moral obligation to preserve the sanctity of life, which forms the most
fundamental ethical dogma in theological and modern bioethics.
Appendix I to the CME, “Perspectives in Medical Ethics”, reproduces the classical and modern
oaths taken by doctors that have consistently over time emphasised the duty of doctors to treat life as
sacred.32 Appendix I sets out the oath to be taken by Muslim doctors, under which they must avow to
“hold human life as precious and sacred, and to protect and honour it at all times and under all
circumstances” in accordance with Islamic law. Appendix I also sets out guidelines on the medical
ethics to be observed by doctors of Chinese and Ancient Indian cultures.
The CME also contains provisions that accord due respect to patient autonomy; for instance, in
s I, under the subheading “Summary of Duties of Doctors to the Patients, Profession and Oneself”, it
is stated that in order to justify the trust given by patients to doctors, doctors have a duty to maintain
a good standard of practice, care and behaviour, which amongst other things includes providing
information to patients in a manner they can easily comprehend, and respecting the rights of patients
to be fully involved in decisions about their care.
Section II of the CME sets out the ethical obligations of doctors to patients. Two provisions are
worthy of note in relation to patient autonomy and end-of-life decisions: cl 1 on “Consent of Medical
Examination and Treatment”; and cl 5 on “The Dying Patient”. The guidelines on obtaining consent of
the patient to medical treatment under cl 1 are summarised as follows:
(a) It is a general rule that doctors should only treat patients upon their consent. Consent is, however,
invalidated if it is given pursuant to coercion, threat or force, or when the patient is not fully
aware of the implications of giving consent.
(b) In the case of an incompetent patient, consent should be obtained from his or her next-of-kin.
(c) Where consent cannot be obtained at all, the matter is under the discretion of the attending doctor
who must exercise it in accordance with his or her duty as the protector of the life and health of
his or her patient. Under such circumstances, consultation with a colleague is advisable.
The issue of passive euthanasia, in particular withholding and withdrawal of treatment, is
addressed in cl 5. Doctors should ensure that the dying process of the patient occurs with dignity and
comfort “where death is deemed to be imminent and where curative or life-prolonging treatment
appears to be futile”. Thus futile therapy can be withheld and withdrawn, or the decision not to
resuscitate a patient may be made where the patient’s condition is of such severity that recovery is
impossible. In doing so, it is to be noted that doctors should always take into consideration any
advance directives and the wishes of the patient’s family members. It follows that in any case, “if
therapy is considered to be life-saving, it should never be withheld”.
Appendix IV to the CME makes reference to numerous declarations and statements made by
international bodies such as the World Medical Association (WMA), the World Psychiatry Association
and the United Nations. The following declarations of the WMA are of particular significance in
reflecting the Malaysian position on end-of-life decisions:
32
Under the Hippocratic Oath, a doctor must make the following statement: “I will give no deadly medicine to anyone if asked,
nor suggest any such counsel; and in like manner I will not give to a woman a pessary to produce abortion”; and in the
International Code of Medical Ethics, which is based on the modern restatement of the Hippocratic Oath known as the
Declaration of Geneva, the first duty of the doctor in treating patients is that he or she “must always bear in mind the
obligations of preserving human life”.
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Kassim and Alias
(a) Declaration on Euthanasia:33 Euthanasia, the act of deliberately ending the life of a patient, even
at the patient’s own request or at the request of close relatives, is unethical. This does not prevent
the physician from respecting the desire of a patient to allow the natural process of death to
follow its course in the terminal phase of sickness.
(b) Statement on Physician-Assisted Suicide:34 Physician-assisted suicide, like euthanasia, is unethical
and must be condemned by the medical profession. Where the assistance of the physician is
intentionally and deliberately directed at enabling an individual to end his or her own life, the
physician acts unethically. However, the right to decline medical treatment is a basic right of the
patient and the physician does not act unethically even if respecting such a wish results in the
death of the patient.
(c) Declaration on Terminal Illness:35 The WMA recognises that doctors and patients are often faced
with a complex set of decisions regarding medical interventions at the end of life, and calls for
more focus in developing palliative treatments and improving the ability of physicians to assess
and address the medical and psychological components of symptoms in terminal illness. In view
of the factors that significantly influence medical care of the terminally ill such as cultural
attitudes and religious beliefs, and the cost and availability of palliative measures in different
jurisdictions, the WMA considers the formulation of detailed guidelines to be made applicable
universally to be both unpractical and unwise. However, several general core principles are set out
by the WMA to assist doctors in the process of making end-of-life decisions.36 Among others, the
WMA insists that it is the primary responsibility of doctors to assist the terminally ill patient “in
maintaining an optimal quality of life through controlling symptoms and addressing psychosocial
needs, and to enable the patient to die with dignity and in comfort”. The patient’s right to
autonomy must also be respected with regard to end-of-life decisions, including the right to refuse
treatment and request palliative therapy that may relieve suffering, although it may have the
additional effect of hastening death.37 No doctor should administer any non-beneficial treatment
to the patient.
33
WMA, Declaration on Euthanasia (adopted by the 39th World Medical Assembly, Madrid, Spain, October 1987).
34
WMA, Statement on Physician-Assisted Suicide (adopted by the 44th World Medical Assembly, Marbella, Spain,
September 1992).
35
WMA, Declaration of Venice on Terminal Illness (adopted by the 35th World Medical Assembly, Venice, Italy,
October 1983).
36
Examples of other core principles stated in the Declaration of Venice on Terminal Illness are as follows:
1. The duty of physicians is to heal, where possible, to relieve suffering and to protect the best interests of their
patients. There shall be no exception to this principle even in the case of incurable disease.
…
5. Physicians should recognise the right of patients to develop written advance directives that describe their
wishes regarding care in the event that they are unable to communicate and that designate a substitute
decision-maker to make decisions that are not expressed in the advance directive. In particular, physicians
should discuss the patient’s wishes regarding the approach to life-sustaining interventions as well as palliative
measures that might have the additional effect of accelerating death. Whenever possible, the patient’s substitute
decision-maker should be included in these conversations.
6. Physicians should endeavour to understand and address the psychosocial needs of their patients, especially as
they relate to patients’ physical symptoms. Physicians should try to ensure that psychological and spiritual
resources are available to patients and their families to help them deal with the anxiety, fear and grief
associated with terminal illness.
7. The clinical management of pain in terminal patients is of paramount importance in terms of alleviating
suffering. Physicians and National Medical Associations should promote the dissemination and sharing of
information regarding pain management to ensure that all physicians involved in terminal care have access to
best practice guidelines and the most current treatments and methods available. Physicians should be able to
pursue clinically appropriate aggressive pain management without undue fear of regulatory or legal
repercussions.
37
However, the WMA strictly prohibits doctors from actively assisting patients in suicide, which may include “administering
any treatments whose palliative benefits, in the opinion of the physician, do not justify the additional effects”. See Declaration
of Venice on Terminal Illness, Principle 3.
940 (2015) 22 JLM 934

Code of Professional Conduct

The CPCM is set out in App II to the CME.38 It is a quasi-regulatory document that outlines the
minimum standard of professional conduct expected of a registered medical practitioner39 in Malaysia.
Breaches of the limits of conduct prescribed in the CPCM will render the practitioner liable for serious
professional misconduct and subject to disciplinary proceedings. The CPCM sets out the powers of the
Malaysian Medical Council40 to deal with complaints or information on the misconduct of any
practitioner, including the procedure for inquiries and the sanctions that can be imposed. Under s 3.1
of the CPCM, “[t]he utmost respect for human life should be maintained even under threat, and no use
should be made of any medical knowledge contrary to the laws of humanity”. Violations of the
sanctity of human life, such as torture or other forms of cruel, inhuman or degrading procedures, are
considered to be a form of conduct that detracts from the reputation of the profession.
Code of Professional Conduct for Nurses

The CPCN acts as a guideline for nurses registered with the Malaysian Nursing Board in discharging
their responsibilities. The preamble to the CPCN states the contribution of nurses towards the health
and welfare of society “through the protection, promotion and restoration of health; the prevention of
illness, and the alleviation of suffering in the care of individuals, families and communities”. In an
end-of-life care setting, the significant role undertaken by nurses is more pronounced as they, more
often than not, form the first and most regular point of contact with patients and are directly involved
in tending to the patients’ physical, emotional and social care.
Clause 1.1 highlights the form of respect that nurses should accord their patients, including the
respect for autonomy. A nurse is to work co-operatively with patients and their families and should
respect decisions about a patient’s care and maintain informed consent in the provision of nursing care
to all patients. If a patient refuses treatment, it is the duty of a nurse to continue to provide the
necessary support. Clause 1.2 states that among the standards of care to be exercised by nurses is “to
conscientiously assess the physical, psychosocial and spiritual needs of each patient”, and provide
“compassionate and competent nursing care to meet each patient’s needs”. Perhaps one of the most
important responsibilities of a nurse, particularly in end-of-life care, is to act as an advocate for an
incompetent patient. This is mentioned in cl 1.4, where “[t]he nurse acts to promote and protect the
interest of the patient when he is incapable of communicating his needs and protecting himself”. In the
event of any breach of the CPCN, the wrongdoer may be referred to the Nursing Board for
disciplinary action.41
Legal provisions
The main piece of legislation governing criminal offences in Malaysia is the Penal Code (Malaysia).
Under the Penal Code, a doctor who deliberately takes active steps to cause death or hasten death of
his or her terminally ill patient, even at the request of the patient, would be committing culpable
homicide not amounting to murder.42 Section 299 provides:
38
The revised edition was adopted by the Malaysian Medical Council at its 46th meeting on 9 December 1986.
39
Section 2 of the Medical Act 1971 (Malaysia) defines “practitioner” as a medical practitioner.
40
The Malaysian Medical Council is a professional body established under the Medical Act 1971 (Malaysia). The disciplinary
jurisdiction and power of the Council to impose punishment is mandated in ss 29 and 30 of the Act.
41
Clause 6 “Disciplinary Proceeding” of the CPCN states: “Should there be any written complaint on any nurse, a preliminary
investigation will be conducted by the disciplinary committee of the respective organization and there may be referred to the
Nursing Board Malaysia for further action.”
42
In criminal law, the elements of actus reus (the criminal conduct) and mens rea (the guilty mind) need to be established in
order to prove that a crime has been committed. It appears that the deliberate act of a doctor with the intention to cause the death
of his or her patient would not amount to culpable homicide amounting to murder under s 300 of the Penal Code (Malaysia).
Active euthanasia is a situation that is covered under Exception 5 of s 300, which deals with consent. Thus, the consent of a
patient for the doctor to end or assist in putting an end to his or her life would operate to mitigate the severity of the crime,
although the doctor would not be fully exonerated from the liability of his or her action. In such a situation, the doctor would
still be liable under s 299. This appears to have been the intention of the drafters of the Indian Penal Code (the provisions of the
Malaysian Penal Code are originally derived from that of the Indian Penal Code), who were reluctant to consider homicide by
(2015) 22 JLM 934 941

Kassim and Alias
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, commits the offence of culpable homicide.
Explanation 1 to s 299 makes it clear 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.
This provision clearly fits the situation of active voluntary euthanasia, making it unlawful,
amounting to culpable homicide not amounting to murder. Punishment for this offence is provided
under s 304, which states:
Whoever commits culpable homicide not amounting to murder shall be punished:
(a) with imprisonment for a term which may extend to twenty years, and shall also be liable to fine, if
the act by which the death is caused is done with the intention of causing death, or of causing such
bodily injury as is likely to cause death; or
(b) with imprisonment for a term which may extend to ten years, or with fine, or with both, if the act
is done with the knowledge that it is likely to cause death, but without any intention to cause death,
or to cause such bodily injury as is likely to cause death.
Whether a doctor can be punished for committing a crime in performing methods of passive
euthanasia such as withdrawal or withholding of treatment and palliative sedation, must be examined
against several provisions of the Penal Code. Where a doctor discontinues or withholds life-sustaining
treatment from a terminally ill patient, the issue that arises is whether this renders him or her liable
under s 299, since under the Penal Code, the word “act” would also extend to an “illegal omission”.43
By virtue of ss 40 and 43, for conduct to be illegal, it would need to fulfil any of the following
elements: (a) it is an offence punishable under the Penal Code; (b) it is prohibited by law; or (c) it
furnishes a ground for civil action. It is probable that withdrawal or withholding of treatment does not
satisfy any of these requirements; it is not stipulated as an offence under any provision of the Penal
Code; nor is it prohibited under any other law.
As to whether it may constitute a ground for civil action, such cause of action would be
unsustainable for practical reasons.44 This is due to the fact that in a medical setting, the reasons for
discontinuing therapy are based on medical futility and/or the patient’s request, which doctors must
respect.45 Thus, it is unlikely that withdrawal or withholding of treatment would amount to an offence
under s 299. With respect to palliative sedation, the issue is whether the doctrine of double effect
satisfies the requirement of mens rea – “with the knowledge that he is likely by such act to cause
death”, since the procedure is carried out with the foreseeability that it might lead to the death of the
patient. However, as discussed earlier, in view of the fact that carefully monitored and proportionate
amounts of sedatives do not operate to hasten death, palliative sedation would also not amount to a
crime under s 299.
The above analysis is consistent with ss 81, 88 and 92 of the Penal Code, which deal with
exceptions based on necessity and consent. According to s 81:
Nothing is an offence merely by reason of its being done with the knowledge that it is likely to cause
harm, if it be done without any criminal intention to cause harm, and in good faith for the purpose of
preventing or avoiding other harm to person or property.
consent in the same light as murder, especially where it was driven by reasons of humanity. See Gaur KD, Textbook on the
Indian Penal Code (4th ed, Universal Law Publishing, 2009) p 462; Talib N, “Legal and Ethical Issues in the Care of
Terminally Ill Patients” (2006) 9(Suppl 1) JUMMEC 93 at 93.
43
Section 32 of the Penal Code (Malaysia) states: “In every part of this Code, except where a contrary intention appears from
the context, words which refer to acts done extend also to illegal omissions.”
44
Professor Norchaya Talib avers that it is unforeseeable that civil actions would be taken against doctors in such cases and to
consider passive euthanasia as civil wrongs would be untenable. See Talib N, Euthanasia: A Malaysian Perspective (Sweet &
Maxwell Asia, 2002) pp 82-84.
45
A doctor who purports to treat a patient against the latter’s wishes will have committed trespass to a person and may be
criminally liable for assault. A doctor’s obligation to honour the requests of a patient is also an established principle of English
law, as laid down in the landmark case of Airedale NHS Trust v Bland [1993] 1 All ER 821. See also Re T (Adult: Refusal of
Medical Treatment [1992] 4 All ER 649. For further discussion, see Talib, n 44, pp 55-57.
942 (2015) 22 JLM 934

Since palliative sedation is administered to terminally ill patients for the purpose of alleviating
pain and discomfort, the act is carried out in good faith and falls under s 81 and within the ambit of
the doctrine of double effect discussed earlier.
Section 88 also operates to exonerate the doctor from liability if the patient has consented to the
procedure.46 In the case of an incompetent patient who has not signified any consent prior to his or her
incapacity, the second exception to s 9247 may be of relevance. The operation of the provision has the
effect that a person who causes any harm to another person in good faith, even without the former’s
consent, does not commit an offence, provided that it is done to prevent death or grievous hurt, or to
cure any grievous disease or infirmity. The issue here is whether alleviation of pain amounts to “the
curing of any grievous disease or infirmity”.48 In this respect, there has yet to be a judicial decision in
Malaysia interpreting the provision within the context of end-of-life decisions.
THE DEVELOPING LEGAL STANDARDS IN END-OF-LIFE DECISIONS
Ethical principles are essential in helping to guide medical judgments that need to be made. Together
with the application of clinical skills and knowledge, they are used to deliver what would be in the
best interests of the patient.49 Among the importance of observing medical ethics is that ethical
standards promote medical care, moral and social values, and facilitate co-operation and collaborative
work between different medical disciplines, leading to a healthy health care environment.50 The
intervention of law in medicine is pivotal, particularly in offering clear guidance in issues that raise
ethical, philosophical and religious dilemmas. Legal instruments are seen as a means of controlling the
medical profession in the interests of the community as a whole.51 Decision-making at the end of life
must necessarily take into account the courts’ position on such issues and the legal implications of
decisions. In order for a comprehensive regulatory framework to exist where medical codes of ethics
are affirmed as good practice, the latter must be compatible with current developments of the law.
In the majority of jurisdictions in the world, active euthanasia is regarded as intentional killing or
murder and thus is unlawful. Similarly, it is explicitly stated in the legislation of many countries that
a decision to take one’s own life amounts to suicide and therefore is unlawful; any doctor who aids
46
Section 88 of the Penal Code (Malaysia) states: “Nothing, which is not intended to cause death, is an offence by reason of
any harm which it may cause, or be intended by the doer to cause, or be known by the doer to be likely to cause, to any person
for whose benefit it is done in good faith, and who has given a consent, whether express or implied, to suffer that harm, or to
take the risk of that harm.” The illustration given under s 88 states: “A, a surgeon, knowing that a particular operation is likely
to cause the death of Z, who suffers under a painful complaint, but not intending to cause Z’s death, and intending in good faith,
Z’s benefit, performs that operation on Z, with Z’s consent. A has committed no offence.”
47
Section 92 of the Penal Code (Malaysia) states:
Nothing is an offence by reason of any harm which it may cause to a person for whose benefit it is done in good
faith, even without that person’s consent, if the circumstances are such that it is impossible for that person to signify
consent, or if that person is incapable of giving consent, and has no guardian or other person in lawful charge of him
from whom it is possible to obtain consent in time for the thing to be done with benefit:
Provided that this exception shall not extend to:
(a) the intentional causing of death, or the attempting to cause death;
(b) the doing of anything which the person doing it knows to be likely to cause death, for any purpose other than
the preventing of death or grievous hurt, or the curing of any grievous disease or infirmity;
(c) the voluntary causing of hurt, or to the attempting to cause hurt, for any purpose other than the preventing of
death or hurt;
(d) the abetment of any offence, to the committing of which offence it would not extend.
48
See Talib, n 44, pp 80-81.
49
Tallon, n 1 at 56.
50
Elsayed DEM and Ahmed REB, “Medical Ethics: What is it? Why is it Important?” (2009) 4(2) SJPH 284 at 286. In addition,
Elsayed and Ahmed also list the following reasons: (a) medical care is built on the communication, trust and respect between
the medical team on the one side, and the patient and/or family on the other side; (b) ethical standards help generate public
support for health care; and (c) public awareness and support for health care will promote ethical conduct by health care
providers in the performance of their duties.
51
As advocated by Lord Hoffman in Airedale NHS Trust v Bland [1993] 1 All ER 821 at 858: “medical ethics [is] to be formed
by the law rather than the reverse.”
(2015) 22 JLM 934 943

Kassim and Alias
and abets the patient in such circumstances may be found guilty of a criminal offence. Active
euthanasia is considered to be a gross violation of the doctrine of sanctity of life, which enunciates an
absolute prohibition on intentional killing and allowing a person to die. However, countries such as the
Netherlands, Belgium, and the States of Oregon, Washington and Vermont in the United States have
codified laws that legally permit this practice.52 The legalisation of active euthanasia is primarily
based on compassionate terms and an individual’s right to self-determination.53 According to the
argument on compassion, it would be cruel to deny a person who experiences severe suffering and for
whom death is inevitable, the right to end his or her life in a dignified manner. It has been argued that
modern law and ethics have recognised that the doctrine of sanctity of life can be superseded by the
need to respect autonomy.54 The doctrinal rationale for the right of self-determination is that people
should have freedom of choice, including the right to control their own body and life (as long as they
do not abuse any other person’s rights), and that the state should not create laws that prevent people
being able to choose where, when and how they die.55 People accordingly should have the right
whether or not to end their lives, and they should be given access to professional help to carry out the
procedure as safe as possible.56
Passive euthanasia, however, is largely recognised by the courts as a legitimate course of action in
medical practice. Where medical treatment no longer provides a patient with quality of life, and the
patient’s life is merely prolonged through artificial means or technology, they should be allowed to die
with decency and dignity. The practice of the courts is that withholding and withdrawal of futile
treatment is not tantamount to a decision to cause death. In England, for example, when decisions are
made on behalf of an incompetent patient, the principle of “best interests” has consistently been the
determinative principle in legal cases. A responsible decision by a team of medical experts to
withdraw life-sustaining treatments and withhold further medical interventions, which have been
determined to be futile and would not be in the such patient’s best interests, is permissible under the
law and would not subject health care professionals to criminal liability.
This principle was enunciated in the landmark case of Airedale NHS Trust v Bland,57 where the
House of Lords discussed its legal justification in relation to the principle of sanctity of life, quality of
52
In Australia in 1995, the Rights of the Terminally Ill Act (NT) was passed permitting doctors to conduct euthanasia, but it was
overturned by the Australian Senate in 1997. Four years after Australia’s failed attempt, the Netherlands became the first
country in the world to successfully legalise euthanasia and physician-assisted suicide. This was followed by Belgium in 2002,
when the country passed a law to allow euthanasia. In 2008, Luxembourg became the second European country to legalise both
euthanasia and physician-assisted suicide. In Colombia, euthanasia became permissible in 1997, following a decision delivered
by its highest court that an individual has the right to end his or her life and doctors cannot be prosecuted for their involvement
in the process. However to date, this remains a judicial ruling and no laws have been codified to regulate this practice in
Colombia. In the United States, Oregon became the first State to decriminalise physician-assisted suicide in 1994 by virtue of its
Death with Dignity Act; Washington followed suit with a similar Act in 2008; and in 2013, assisted death also became legal in
Vermont. Switzerland, however, adopts a rather unique approach to the subject matter; it is currently the only country in the
world to legalise altruistic-assisted suicide by non-doctors. Most recently in June 2014, Quebec’s Right-to-Die Bill was adopted
in its national assembly.
53
See Amaraskekara K and Bagaric M, “Moving from Voluntary Euthanasia to Non-Voluntary Euthanasia: Equality and
Compassion” (2004) 17(3) Ratio Juris 398.
54
Griffiths J, Bood A and Weyers H, Euthanasia and Law in the Netherlands (Amsterdam University Press, 1998) p 169. See
also Green K, “Physician-Assisted Suicide and Euthanasia: Safeguarding against the Slippery Slope – The Netherlands versus
the United States” (2002) 13(2) Ind Int’l & Comp L Rev 639 at 642-643; McLean S, Assisted Dying: Reflections on the Need
for Law Reform (Routledge, 2007) pp 123-124.
55
Griffiths, Bood and Weyers, n 54, p 169. See also Green, n 54 at 642-643; McLean, n 54, pp 123-124.
56
Ardelt M, “Physician-Assisted Death” in Bryant CD (ed), Handbook of Death and Dying, (SAGE, 2003) p 428.
57
Airedale NHS Trust v Bland [1993] 1 All ER 821. The case concerned Anthony Bland, a victim of the disaster at the
Hillsborough Football Stadium who suffered irreversible damage to his cerebral cortex, which rendered him in a persistent
vegetative state. He was fed artificially and mechanically with a nasogastric tube and showed no cognitive response to his
surroundings. All his natural bodily functions had to be operated with nursing intervention, requiring four to five hours of
nursing attention by two nurses daily. After three-and-a-half years of remaining in this condition, a court declaration was sought
by Bland’s attending doctor to cease further treatment, which involved extubation, that is, withdrawal of artificial nutrition and
944 (2015) 22 JLM 934

life and patient autonomy. In arriving at its judgment, the court ruled that the principle of sanctity of
life was not absolute; “it must yield to the right of self-determination”.58 The principle of
self-determination requires that the patient’s wishes be respected to the extent that if a patient of sound
mind refuses to consent to a medical treatment that would prolong his or her life, the doctor
responsible for the patient’s care must abide by the former’s wishes, regardless of the fact that such
refusal is unwise. In the case of an insensate patient like Bland who lacked the capacity to provide
valid consent or refusal to medical treatment, the lawfulness of such medical treatment depended upon
whether it was in the best interests of the patient.59 The court further held that doctors were not under
an unqualified duty to prolong life at all costs; the duty to provide medical care “ceases when such
treatment can serve no humane purpose”.60 Accordingly, it would be against common humanity,
medical ethics and good medical practice for a patient’s life to be prolonged by any means necessary
without regard for the patient’s quality of life.61 In Bland’s case, the futility of the treatment in
providing him with any quality of life ethically justified its termination.62
A patient’s right to self-determination in cases of passive euthanasia was reiterated in the
subsequent English case of B v NHS Hospital Trust.63 The court, in referring to Bland, discussed the
interplay between the two fundamental principles of autonomy and preservation of life. It was ruled
that the principle of “best interests” was not applicable in cases where the patient had the mental
capacity to make relevant decisions about her medical treatment, and therefore a doctor was under an
obligation to respect the wishes of the patient, even if it was plain to all parties, including the patient,
that death would ensue.
The medico-legal framework in Bland has been interpreted by the English courts to be consistent
with the subsequently enacted Human Rights Act 1998 (UK), which incorporates relevant provisions
enunciated in the European Convention for the Protection of Human Rights and Fundamental
Freedoms.64 In NHS Trust A v M,65 the court was tasked with interpreting Arts 266 and 367 of the
Convention to determine whether withdrawal of artificial nutrition and hydration from patients in a
hydration and withholding of antibiotic treatment in case of infection. The declaration was based on a clinical assessment by
medical experts that there was absolutely no hope for recovery for Bland and thus any medical intervention would be futile and
not in the best interests of the patient.
58
Airedale NHS Trust v Bland [1993] 1 All ER 821 at 866 (Lord Goff).
59
Airedale NHS Trust v Bland [1993] 1 All ER 821 at 843 (Lord Bingham).
60
Airedale NHS Trust v Bland [1993] 1 All ER 821 at 856 (Lord Hoffman).
61
62
63
B v NHS Hospital Trust [2002] All ER (D) 362 (Mar). The case involved a patient who was mentally competent and had
repeatedly yet unsuccessfully requested for the withdrawal of medical therapy to which she was subjected. B suffered a spinal
cavernoma, which necessitated neurological surgery to remove it. During the course of her hospitalisation and treatment, she
executed a living will stating that if at any point of time she was incapable of giving instructions, she wanted treatment to be
withdrawn if she was suffering from a life-threatening condition, permanent mental impairment or permanent unconsciousness.
Unfortunately, as a result of the surgery, B became completely paralysed from the neck down and was treated with a ventilator
to ease her respiratory problems. She eventually regained some movement in her head and was able to speak, pursuant to which
she requested to her clinicians on several occasions to have the ventilator removed. The clinicians were not prepared to do so as
they considered it to not be in her best interests as it would inevitably lead to her death.
64
See discussion in Choong K and Chandia M, “Technology at the End of Life: ‘Medical Futility’ and the Muslim PVS Patient”
(2013) 2 International Review of Law 9.
65
NHS Trust A v M [2001] 1 All ER 801. The case concerned two patients, M and H who were both suffering from a permanent
vegetative state and whose chances of recovery were confirmed by doctors to be “vanishingly small”. They were both intubated
for purposes of artificial nutrition and hydration, although H faced particular problems in accepting artificial nutrition and
hydration. The two hospital trusts (Trust A and Trust B) sought similar declarations from the court to enable the hospitals
managed by them to discontinue artificial nutrition and hydration provided to the two patients. The applications were supported
by the respective families of each patient and the hospital staff who cared for them.
66
The first limb of Art 2 of the Convention on “Right to life” provides: “Everyone’s right to life shall be protected by law. No
one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime
for which this penalty is provided by law.”
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Kassim and Alias
persistent vegetative state violated the right to life and prohibition on torture and degrading treatment,
respectively. In its judgment, the court held that the context of deprivation of life under Art 2 “must
import a deliberate act, as opposed to an omission, by someone acting on behalf of the state, which
results in death”.68 A responsible decision by a medical team not to provide treatment was an omission
to act and therefore could not amount to intentional deprivation of life by the state. On whether Art 2
conferred a positive obligation on the state to take appropriate measures to protect life, it was held that
such an obligation was not absolute. The application of Art 2 in this case would impose a positive
obligation to give life-sustaining treatment in circumstances where, according to responsible medical
opinion, such treatment was in the best interests of the patient, but would not operate to confer an
absolute obligation to treat if such treatment would be futile.
The court also addressed the implications of Art 3 to the proposed withdrawal of treatment and
ruled that such medical procedure did not amount to torture or degrading treatment on the following
grounds: (a) it was a decision that was formed upon considerable deliberation by a responsible team of
medical experts in the best interests of the patients; and (b) Art 3 requires the victim to be aware of the
inhuman or degrading treatment that he or she is experiencing. An insensate patient has no mental
consciousness of the treatment that is accorded to him or her and accordingly in such a case, Art 3
would not apply. In summary, it was held that the principles laid down in Bland were consistent with
the provisions of the Human Rights Act 1998.
Two decades after the Bland decision, the House of Lords ruling in that case remains the
prevalent judicial precedent for cases involving passive euthanasia.69 The most recent case of Tony
Nicklinson, however, has heated up the debate on whether physician-assisted suicide should be
legalised in the United Kingdom, following the Supreme Court’s acknowledgment that there is a need
for the British Parliament to debate and decide on whether changes should be made to the existing law
on the issue.70
The judgment in Bland also influenced the framing of guidelines by the British Medical
Association in 1999 on Withholding and Withdrawing Life-prolonging Medical Treatment. Section 12
of the guidelines states that:
Prolonging a patient’s life usually, but not always, provides a health benefit to that patient. It is not an
appropriate goal of medicine to prolong life at all costs, with no regard to its quality or the burdens of
treatment.
The guidelines provide the setting for decision-making involving different types of patients:
competent patients, patients with valid advance directives, incompetent patients who do not have valid
advance directives and vulnerable patients (for example, children). In addition, the process of
decision-making and review are also set out, including when doctors should refer end-of-life decisions
to the courts for legal review, which include discontinuance of artificial nutrition and hydration from
patients in a persistent vegetative state.
In 2010, the United Kingdom General Medical Council issued a guidance booklet to assist doctors
in making end-of-life decisions, Treatment and Care Towards the End of Life: Good Practice in
Decision Making, which incorporates principles of good practice, consistent with the laws on active
and passive euthanasia, including the Human Rights Act 1998 and Mental Capacity Act 2005. The
guidance addresses several challenges that doctors often face in end-of-life care, in particular
withholding and withdrawal of treatment, and provides a framework to support doctors to address
issues that meet the needs of individual patients. It cautions doctors that any decision made must start
from a presumption in favour of prolonging life, but acknowledges that “there is no absolute
67
Article 3 of the Convention states the prohibition on torture: “No one shall be subjected to torture or to inhuman or degrading
treatment or punishment.”
68
NHS Trust A v M [2001] 1 All ER 801 at 809.
69
The principles in Bland have been consistently applied by the English courts. See, for example, Re G (Persistent Vegetative
State) [1995] 2 FCR 46; Re AK (Medical Treatment: Consent) [2001] 2 FCR 35; R (Application of Burke) v General Medical
Council [2005] EWCA Civ 1003; An NHS Trust v J [2006] EWHC 3152.
70
R (Application of Nicklinson) v Ministry of Justice [2014] 139 BMLR 1.
946 (2015) 22 JLM 934

obligation to prolong life irrespective of the consequences for the patient, and irrespective of the
patient’s views, if they are known or can be found out”. The guidance outlines the necessary steps to
be taken by doctors when making a decision whether or not to proceed or discontinue with
life-prolonging therapy such as antibiotics, cardiopulmonary resuscitation, mechanical ventilation and
artificial nutrition and hydration. It also provides decision-making models applicable to different types
of patients according to their capacity.
THE ADEQUACIES AND INADEQUACIES OF THE MALAYSIAN REGULATORY SYSTEM

IN RESPECT OF END-OF-LIFE DECISIONS
From the above discussion, it can be seen that end-of-life decisions in Malaysia is a subject that is
addressed generally in local ethical codes and impliedly in its legal provisions. A clear inference can
be made with regard to the Malaysian position on active euthanasia: it is both unethical and illegal in
accordance with the stand taken in the CME, the CPCM and the CPCN, and by virtue of the
interpretation of s 299 of the Penal Code. However, where decisions in end-of-life care such as
withholding and withdrawal of life-prolonging therapy and pain management are concerned, only the
CME (which constitutes the main source of guidance for doctors in Malaysia where ethical obligations
are concerned) contains some reference to the approach that doctors should adopt. Section II, cl 5
provides that: (a) that medical futility is a valid cause for discontinuance of treatment; and (b) the need
for doctors to consider any advance directive made by the patient and the wishes of his family
members. The provision, however, does not refer to any relevant practice guidelines. The basic reason
for this is that the CME is intended to offer general guidance for doctors to discharge their duties
ethically.
Section I of the CME acknowledges the possibility of ethico-legal conflict in medical
decision-making:
Physicians may experience conflict between different ethical principles, between ethical and legal or
regulatory requirements, or between their own ethical convictions and the demands of patients, proxy
decision makers, other health professionals, employers or other involved parties.
Section I encourages doctors to study the provisions of the CME to help them make decisions that
are in the best interests of the patient. However, s I states that the CME “is not, and cannot be,
exhaustive”. It encourages doctors to find middle ground “conducive to the fulfilment of the patient’s
best interests and to responsible medical performance”. When juxtaposed, these statements in the
CME illustrate the need for a guideline to direct the conduct of physicians in dealing with ethical
conflicts, which are especially prevalent in end-of-life care. This also accords with Principle 7 of the
WMA Venice Declaration on Terminal Illness, which calls for doctors and national medical
associations to promote:
the dissemination and sharing of information regarding pain management to ensure that all physicians
involved in terminal care have access to best practice guidelines and the most current treatments and
methods available.
The Malaysian Medical Association has yet to issue an official and detailed guidance on how
doctors should form end-of-life decisions. However, in 2004, a Consensus on Withdrawal and
Withholding of Life Support in The Critically Ill was drafted by the Academy of Medicine of Malaysia.
The Consensus is a guideline that is intended to assist doctors in treating adult patients who are
terminally ill at intensive or critical care units, and specifically covers withholding and withdrawal of
life support.71 It sets out, amongst other things, the basic principles of medical ethics relating to
withholding and withdrawal of life support, the categories of patients to be considered for withholding
and withdrawal of life support, decision-making aids and steps to withhold or withdraw life support,
71
The Consensus sets out the following definition for “life support”: “Life support treatment or life prolonging treatment refers
to all treatment which has the potential to postpone the patient’s death and includes cardiopulmonary resuscitation, artificial
ventilation, specialised treatments for particular conditions such as dialysis, vasoactive drugs, antibiotics when given for a
potentially life-threatening infection and artificial nutrition and hydration. It will also include pacemakers when used to treat life
threatening arrhythmias.”
(2015) 22 JLM 934 947

Kassim and Alias
and plan for withdrawal of life support. The Consensus also explicates the paucity of case law and
lack of legal provisions in Malaysia to direct the relevant decision-making process, as opposed to the
position in the United Kingdom and the United States. It further states that:
The decision to withdraw therapy, usually places responsibility on the doctor/doctors in charge of the
patient. Much weight is, however, placed on the wishes of the family or legal guardians.
The Consensus is a commendable effort on the part of the Malaysian medical community to assist
doctors in making decisions on whether to withhold or withdraw life support. Its scope, however, as
compared to the British Medical Association’s guidelines and the General Medical Council’s
guidance, is limited in the following aspects:
(a) although reference is made to “Advance Medical Directive(s)” in terms of the wishes of a
competent patient to withhold or discontinue life support, no guideline with respect to advance
care planning and its execution is included;72
(b) the contents of the Consensus are relatively general in nature – no specific instructions are
provided for different palliative procedures such as clinically assisted nutrition and hydration and
do-not-attempt resuscitation orders; and
(c) no guideline is provided in the event that a doctor wishes to withdraw from treating a patient due
to ethical or religious conflicts relating to life-prolonging treatment.73
In terms of legal standards, there are currently no local statutory provisions or judicial decisions
laying down principles governing the conduct of doctors in the decision-making process. The Penal
Code lies on the other end of the spectrum; being punitive law, it solely deals with criminal liability,
and even then it does not specifically list euthanasia (be it active or passive) as an offence. The earlier
discussion in this article on the relevant provisions of the Penal Code is primarily based on inferences
drawn from the text of the statute, including their respective explanations and illustrations, as no
judicial interpretations of such provisions have been made by the Malaysian courts in the context of
end-of-life decisions.
There is thus an evident lacuna in the Malaysian regulatory system with regard to the proper
governance of end-of-life decisions. Malaysia, having been under British colonial rule in the 19th and
20th centuries, inherits much of its legal system from the common law in England. The prevailing
influence of the laws of England is codified in s 3 of the Civil Law Act 1956 (Malaysia). Section 3
states that Malaysian courts shall apply the common law of England and rules of equity where no
provision on the matter has been made by any written law in Malaysia, according to specific cut-off
dates.74 The strict application of s 3, however, would not effectively resolve the existing regulatory
gap on end-of-life decisions in Malaysia due to the specific cut-off dates because it would be
unreasonable for Malaysian courts to apply archaic law that has since undergone changes in England.
According to a former Chief Justice of Malaysia, in calling for a review of the Civil Law Act 1956, it
72
Although the importance and applicability of advanced medical directives are recognised among the medical professionals in
Malaysia, there are currently no specific guidelines on its issuance and implementation. See “Group Calls for Guidelines on
Issuance of Directive”, The Star Online (8 December 2014), http://www.thestar.com.my/News/Nation/2014/12/08/Group-calls-
for-guidelines-on-issuance-of-directive. Some basic information on advance care directives is provided in a recent guideline
issued by the Malaysian Medical Council: see Malaysian Medical Council, Consent for Treatment of Patients by Registered
Medical Practitioners (2013), http://mmc.gov.my/v1/docs/Consent Guidelines 15012013.pdf.
73
The Guidance outlines the steps that a doctor should follow in the event that he or she may have a conscientious objection
towards providing care to a terminally ill patient. See General Medical Council, Treatment and Care Towards the End of Life:
Good Practice in Decision Making (2010) at [79]-[80].
74
Section 3(1) of the Civil Law Act 1956 (Malaysia) states:
(1) Save so far as other provision has been made or may hereafter be made by any written law in force in Malaysia,
the Court shall:
(a) in Peninsular Malaysia or any part thereof, apply the common law of England and the rules of equity as
administered in England on the 7 April 1956;
(b) in Sabah, apply the common law of England and the rules of equity, together with statutes of general
application, as administered or in force in England on 1 December 1951;
(c) in Sarawak, apply the common law of England and the rules of equity, together with statutes of general
application, as administered or in force in England on 12 December 1949, subject however to subparagraph
(3)(ii):
948 (2015) 22 JLM 934

is the difficulty of determining the common law or rules of equity on a matter according to a specific
cut-off date that has led Malaysian judges to “hardly take the trouble to determine the common law or
the rules of equity as at the cut-off date”.75 He further stated that the reality is that “[j]udgments of
English courts are cited and applied as if section 3 of the Civil Law Act 1956 does not exist”.76
Therefore, irrespective of the cut-off dates in the Act, prevailing common law principles particularly in
England are persuasive and constitute a significantly relevant source for Malaysian judges to refer to
in order to plug the existing gap on the subject matter of end-of-life decisions. Accordingly, the
principles laid down in Bland can be applied to determine the legality of passive euthanasia in
Malaysia.
It is important to note that the application of English law is limited to the extent that “the
circumstances of the States of Malaysia and their respective inhabitants permit and subject to such
qualifications as local circumstances render necessary”.77 It follows that the racial and religious
demography in Malaysia is a pertinent factor that requires due consideration. Ethical guidelines and
legal standards on end-of-life decisions must therefore take into account the values and perspectives of
the different communities, particularly since it concerns an area that involves sensitivity. Different
races make up Malaysia’s population, with Malays being the largest ethnic group (67.4%), followed
by Chinese (24.6%), Indians (7.3%) and others (0.7%).78 The CME acknowledges the effects of
Malaysia’s diverse cultural composition on local medical practice and mentions this briefly in
Section I. The other reference made to religion is under Appendix I, by highlighting several principles
of medical ethics under the Chinese culture and Ancient Indian medicine. The Islamic perspective on
professional ethics is indicated in the reproduction of the “Oath of a Muslim Physician”,79 but no
specific bioethical principles are laid down in the CME.
Guidance on religious viewpoints with regard to end-of-life decisions must therefore be found in
other documents. The ethical principles for Islamic medical ethics, for example, are contained in the
Islamic Code of Medical and Health Ethics, an official document issued by the Islamic Organization
for Medical Sciences.80 Articles 61 and 62 of the Islamic Code lay down the Islamic perspective on
euthanasia and the approach taken towards termination of futile treatment and palliative sedation.81 In
a religious edict released at the 97th Discourse of the National Fatwa Committee for Islamic Affairs
Provided always that the said common law, rules of equity and statutes of general application shall be applied so far
only as the circumstances of the States of Malaysia and their respective inhabitants permit and subject to such
qualifications as local circumstances render necessary.
75
Mohamad AH, “Comments on Review of Civil Law Act 1956” (3 November 2013), http://www.tunabdulhamid.my/
index.php/speech-papers-lectures/item/698-comments-on-review-of-civil-law-act-1956. Tun Abdul Hamid Mohamad served as
the Chief Justice of Malaysia from 1 November 2007 to 18 October 2008.
76
See Mohamad, n 75.
77
Proviso to s 3 of the Civil Law Act 1956 (Malaysia).
78
Department of Statistics Malaysia, Population Distribution and Basic Demographic Characteristic Report 2010 (released
29 July 2011). The Population and Housing Census is undertaken every 10 years.
79
Being of Malay origin is almost always considered synonymous with being a Muslim. Under Art 160 of the Malaysian Federal
Constitution: “‘Malay’ means a person who professes the religion of Islam, habitually speaks the Malay language, conforms to
Malay custom and: (a) was before Merdeka Day born in the Federation or in Singapore or born of parents one of whom was born
in the Federation or in Singapore, or is on that day domiciled in the Federation or in Singapore; or (b) is the issue of such a
person.”
80
The Islamic Code of Medical and Health Ethics (endorsed at the International Conference on Islamic Code of Medical Ethics
in Egypt in 2004) is based on the Islamic Code of Medical Ethics (issued by the Islamic Organization for Medical Sciences and
endorsed at the First International Conference on Islamic Medicine in Kuwait in 1981).
81
Article 61 of the Islamic Code of Medical and Health Ethics states:
Human life is sacred, and it should never be wasted except in the cases specified by shari’a and the law. This is a
question that lies completely outside the scope of the medical profession. A physician should not take an active part
in terminating the life of a patient, even if it is at his or his guardian’s request, and even if the reason is severe
deformity; a hopeless, incurable disease; or severe, unbearable pain that cannot be alleviated by the usual pain
killers. The physician should urge his patient to endure and remind him of the reward of those who tolerate their
suffering. This particularly applies to the following cases of what is known as mercy killing:
a. the deliberate killing of a person who voluntarily asks for his life to be ended,
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Kassim and Alias
Malaysia, a similar position was endorsed reiterating the prohibition on active euthanasia, and the
permissibility of withdrawal of definitive treatment if the patient no longer has any hope for
recovery.82
In view of the above, a proper supplemental guidance to the CME highlighting religious
perspectives in Malaysia on end-of-life decisions is necessary to help address the ethical issues and
direct the conduct of doctors in providing better and improved overall care to terminally ill patients. In
the United Kingdom, support for this aspect is manifested in the Personal Beliefs and Medical
Practice guide issued by the GMC. This guide recognises that doctors may practise medicine
according to their personal beliefs, provided they act in accordance with relevant legislation. It also
emphasises the importance of identifying a patient’s spiritual, religious and cultural concerns and
provides for appropriate measures to be taken if the patient refuses treatment on the ground of his or
her religious or moral beliefs. Further, the guide acknowledges the role of a religious adviser to
provide advice in the performance of certain medical procedures.
CONCLUSION
Medical personnel involved in end-of-life care are often confronted with issues that involve ethical
considerations which extend beyond clinical practice. There is therefore a definite need for doctors to
be guided in making end-of-life decisions. This is best addressed by the formulation of ethical codes
and legal standards. These measures will operate in two ways:
(a) to accord proper guidance to doctors in the decision-making process under different circumstances
and provide assurance to doctors that their actions are ethically and legally valid; and
(b) improve doctor-patient relationship, as patients are assured that their autonomy, including
personal beliefs and needs, are given due respect and consideration by doctors in forming and
making end-of-life decisions.
A comprehensive regulatory system to address ethico-legal issues in end-of-life care has yet to be
developed in Malaysia. Although the British Medical Association’s guidelines and the General
Medical Council’s guidance, together with the prevailing legal standards in English common law
provide a feasible framework for Malaysian medical practice in end-of-life care, there is a need for
ethical codes and legal instruments to be constructed and enhanced consistent with local circumstances
in Malaysia.
b. physician-assisted suicide, and

c. the deliberate killing of newly born infants with deformities that may or may not threaten their lives.
Article 62 of the Islamic Code of Medical and Health Ethics states:
The following cases are examples of what is not covered by the term “mercy killing”:
a. the termination of a treatment when its continuation is confirmed, by the medical committee concerned, to be
useless, and this includes artificial respirators, in as much as allowed by existing laws and regulations;
b. declining to begin a treatment that is confirmed to be useless; and
c. The intensified administration of a strong medication to stop a severe pain, although it is known that this
medication might ultimately end the patient’s life.
82
However, in Islam, supportive treatment (for example, hydration and nutrition) cannot be terminated and must be continued
until death naturally takes place. See, for example, Bülow HH et al, “The World’s Major Religions’ Points of View on
End-of-Life Decisions in the Intensive Care Unit” (2008) 34(3) Intensive Care Med 423 at 426; Gatrad AR and Sheikh A,
“Medical Ethics and Islam: Principles and Practice” (2001) 84(1) Arch Dis Child 72 at 74; Sachedina A, “End-of-Life: The
Islamic View” (2005) 366(9487) The Lancet 774 at 778; Zahedi, Larijani and Bazzaz, n 13 at 12; Malik, n 25 at 226.
950 (2015) 22 JLM 934
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End-of-life decisions in Malaysia: Adequacies of Ethical Codes and

Article in Journal of Law and Medicine · June 2015

Puteri NEMIE Jahn Kassim Fadhlina Alias

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THE NATURE AND SCOPE OF END-OF-LIFE CARE

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THE ETHICAL DILEMMAS IN END-OF-LIFE DECISIONS

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Code of Professional Conduct

Code of Professional Conduct for Nurses

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THE ADEQUACIES AND INADEQUACIES OF THE MALAYSIAN REGULATORY SYSTEM

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b. physician-assisted suicide, and

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