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The necessity of spousal consent from the Shariah and Malaysian Law perspectives

Jahn Kassim, Puteri Nemie and Hazelan, Hairul Akram (2021) The necessity of spousal consent from the Shariah and Malaysian Law perspectives. In: International Conference on Family Law, Family Justice and Maqasid Al-Shariah (ICFL 2021)), 9th-10th Feb 2021, Online. (Unpublished)

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Respect for a person’s autonomy is to acknowledge that every person has a right to make choices and able to act according to his own personal values and beliefs. Thus, every adult of sound mind has a right to make his own healthcare decisions without external interference, particularly when such decisions affect his religious beliefs and cultural values. The involvement of family members, particularly the spouse of the patient, has not been a legal requirement in medical decision-making for competent patients but merely seen as part of good medical practice in respecting cultural values. Therefore, the judgments of Abdul Razak Datuk Abu Samah v Raja Badrul Hisham Raja Zezeman Shah & Ors [2013] 10 MLJ 34 and Gurmit Kaur a/p Jaswant Singh v Tung Shin Hospital & Anor [2012] 4 MLJ 26 have far-reaching implications for both the medical and the legal fraternity as these cases have decided that spousal consent is deemed necessary if the implication of the treatment affects the reproductive right of the relevant party and if it is evident that the patient is dependent on the spouse to make decisions with regards to the proposed medical treatment. This paper seeks to discuss the circumstances in which spousal consent has been deemed necessary in medical decision-making under the Malaysian law as well as the Shari’ah. Although the power of individual autonomy seems to be firmly entrenched in the Malaysian Medical Law, but familial roles and responsibilities are also seen by the Malaysian judiciary as influential in upholding the patient’s best interests as well as safeguarding the family institution through collective decisions.

Item Type: Conference or Workshop Item (Slide Presentation)
Additional Information: 1830/88278
Subjects: K Law > K Law (General)
Kulliyyahs/Centres/Divisions/Institutes (Can select more than one option. Press CONTROL button): Ahmad Ibrahim Kulliyyah of Laws
Ahmad Ibrahim Kulliyyah of Laws > Department of Civil Law
Depositing User: Professor Dr Puteri Nemie Jahn Kassim
Date Deposited: 11 Feb 2021 11:26
Last Modified: 11 Feb 2021 11:26
URI: http://irep.iium.edu.my/id/eprint/88278

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