THE APPLICATION OF
ALTERNATIVE DISPUTE RESOLUTION (ADR) SUCH AS MEDIATION TO OVERCOME ISSUES IN
MEDICAL NEGLIGENCE IN MALAYSIA
By: MUHAMMAD MUSHRIN BIN ESA
(2017867198)
ABSTRACT
The
application of alternative dispute resolution (ADR) methods particularly in
medical negligence has been well-accepted in many countries in recent years.
One of the key techniques, mediation has been one of the way to overcome such
dispute related to medical negligence. Medical negligence is among the critical
subject to be discussed by the legal practitioner and the medical
professionals. Compared to other professions, the profession of medicine is the
only profession which is very vulnerable and subject to criticisms from the
public due to the negligent acts or omissions during their course of duty. However,
some of the countries against the application of mediation with the reason if
it is inconsistence with the current law. For instance, in the United Kingdom
(UK); The Royal Society of Edinburgh Report stated that any “compulsory
mediation” that removes any recourse to litigation would be inconsistent with
Article 6 of the European Convention on Human Rights.
In
current situation of Malaysia, the Medical Act 1971 (Act 50) does not clearly
provide liabilities or claims for damages as the consequences for medical
negligence. Thus, public realize that medical negligence claims can arise under
few branches of legal perspective such as contract law as well as under the law
of torts, as provided for by the Civil Act 1956 (Act 67). However, the most
crucial aspect to be considered is the cost and the duration that it will take
to conclude the case if it is being brought to the trial.
Therefore,
better solutions such as mediation should be used to facilitate the injured
parties in negligent cases for better management of such negligence cases due
to the consideration of the time taken of the whole litigation process involve,
the disclosure of the evidence and report, the speed of getting all the
information in order to find the solution to the disputes, to save the cost as
well as to avoid the unfair treatment and misinterpretation. This can be
resulted in reduction of total effort in handling each case; thus, it will
reduce the burden of the parties involved.
Furthermore,
with the current development of technology in medical practice in Malaysia, the
issue pertaining to misconduct by the medical practitioners should be seen in
bigger picture, such failure can be caused by the medical equipment instead of
the skills of the medical personnel. Thus, wider discussion on this should be held
in order to assist the parties involve for better solution.
This
paper will elaborate further on mediation process aspects in term of the
qualitative benefits over the normal litigation process in settling the medical
negligence. There is a need for better understanding on the needs, the process
and the benefits of mediation to overcome plenty of medical healthcare issues
while protecting the parties involved and to be assure the fairness in giving
assistance to reach for better settlement.
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