Informed Consent in Malaysia: What Your Doctor Must Tell You

What must a doctor tell you before treatment?

A doctor must explain the proposed treatment, its benefits, its material risks and the reasonable alternatives, including what may happen if you do not go ahead. The aim is to let you make your own decision.

A risk is material if a reasonable person in the patient's position, if warned of it, would be likely to attach significance to it, or if the doctor knows or should reasonably know that this particular patient would. The test comes from Rogers v Whitaker (1992), a decision of the High Court of Australia. There, a woman who was almost blind in one eye lost the sight of her good eye after surgery, from a rare complication her surgeon had not mentioned, although she had asked many questions about the operation.

The Federal Court adopted this test in Foo Fio Na v Dr Soo Fook Mun & Anor [2007] 1 MLJ 593, holding that the Bolam test, which looks to accepted medical practice, has no relevance to the duty to advise of risks. In Zulhasnimar bt Hasan Basri & Anor v Dr Kuppu Velumani P & Ors [2017] 5 MLJ 438, the Federal Court confirmed that this test is confined to the duty to advise, while diagnosis and treatment are still judged under Bolam as qualified by Bolitho.

The Malaysian Medical Council (MMC) guideline, Consent for Treatment of Patients by Registered Medical Practitioners, adopted on 18 February 2025, uses the same two-part definition of material risk.

Does a doctor have to mention rare risks?

Yes, if the risk is material. Rarity alone does not excuse silence, especially where the possible harm is serious or the patient has made clear that it matters to them.

In Tan Sri Datuk Seri Mohd Hussein bin Abd Hamid v Gleneagles Hospital [2025] 4 MLJ 381, a patient suffered a tear in the popliteal artery, the main artery behind the knee, after knee arthroscopy. The High Court dismissed his claim, holding that a documented warning about bleeding covered this risk. The Court of Appeal disagreed. It held that a general warning about bleeding did not cover the specific risk of injury to that artery, that the duty to advise on surgical risks is specific, and that although the risk was extremely rare it was material and should have been disclosed.

Two further points matter.

• In limited circumstances, a doctor may withhold information for a time if the doctor believes this is in the patient's best interests. This is called therapeutic privilege. The Federal Court in Zulhasnimar treated it as a limited exception, and the MMC guideline requires the reasons to be recorded.
• Your questions matter. If you ask about a particular risk, the doctor is on notice that it matters to you, which brings in the second part of the material risk test.

Is a signed consent form enough?

No. A signed form is important evidence that consent was given, but it does not prove that the risks were properly explained. The court looks at what was actually said, by whom and when.

The MMC guideline makes the same point:

• written consent is only one way of recording consent, and pre-prepared material is not a substitute for making sure the patient understands;
• the doctor providing the treatment is responsible for ensuring valid consent, even if someone else took the signature;
• a 'blanket' consent signed on admission is not valid consent for every treatment;
• consent should be obtained again if the illness changes or the treatment is postponed;
• a translator should be engaged where necessary.

Courts look at the records as well as the form. In Nurul Iman Abu Mansor v Gleneagles Hospital Kuala Lumpur Sdn Bhd & Anor (2024), the High Court in Kuala Lumpur found that a 17-year-old patient had not been warned of the risks of carpal tunnel surgery. Neither the consent form nor the medical records mentioned them, and she and her father said they were told it was a simple operation. The court also found the surgery itself negligent and awarded about RM1.1 million in damages.

If you signed in a hurry, or in a language you do not read well, write down what you remember of the conversation as soon as you can.

Can a doctor treat you without consent in an emergency?

Yes, but only within narrow limits. The MMC guideline recognises a medical emergency as an exception to prior consent, says it should be used sparingly because it undermines the patient's autonomy, and limits treatment without consent to what the immediate necessity requires.

The MMC's consent FAQ describes the expected approach:

1. If the patient can still decide, the patient must give consent personally, even in an emergency.
2. If the patient cannot decide, the doctor should try to contact a surrogate decision-maker, such as a close family member, when time permits.
3. If no one can be reached, the doctor may act in the patient's best interests, unless the patient has left an unequivocal written direction refusing that treatment.
4. Where practicable, two doctors should agree, co-sign the consent form and record the attempts to reach a surrogate.

Once the emergency has passed, the normal rules return, and further treatment that is not urgent should wait for proper consent. If you believe emergency treatment went further than the situation required, the records of who decided what, and when, will be central.

Who gives consent for children and adults who cannot decide?

For a child, a parent usually gives consent. For an adult who lacks capacity, the doctor should identify a suitable surrogate, and decisions must be made in the patient's best interests.

Children

The age of majority in Malaysia is 18 under the Age of Majority Act 1971 (Act 21). The MMC's FAQ says the consent of one parent is generally enough for a child under 18, even if the parents are separated, unless a court order provides otherwise or the parents disagree. An accompanying adult who is not a parent needs authority to act, and a blanket note from a parent allowing anyone to consent is not valid. The MMC guideline adds that a mature minor may be able to consent, judged case by case, while doctors stay mindful of laws that require parental consent.

Adults who lack capacity

The guideline asks the doctor to identify a surrogate decision-maker, starting with anyone who has legal authority, then a person the patient nominated or someone who knows the patient's values, and to record these efforts. For a mentally disordered person who needs surgery, electroconvulsive therapy or a clinical trial, section 77 of the Mental Health Act 2001 (Act 615) applies: the patient consents if a psychiatrist assesses them as capable; if not, a guardian for a minor or a relative for an adult; and if neither is available, two psychiatrists, one of them the attending psychiatrist.

An adult who can decide does not need a relative's signature, even for high-risk treatment.

What can you do if the risks were not explained?

Start by preserving the evidence of what you were told, then have it assessed. A failure to warn can support a claim for compensation if a material risk was not disclosed and that risk then caused you harm.

1. Write down, with dates, who explained the treatment, what was said, what you asked and what you were given to read or sign.
2. Request the complete medical records, including the consent form and any information leaflet. MMC Guideline 002/2006 says records or certified true copies should be released when the patient asks.
3. Ask an independent doctor in the same field whether the risk was material, whether it is what happened to you, and whether the treatment itself was below standard.
4. Think about what you would have decided if you had been told. The defence often argues that you would have gone ahead anyway, so your reasons matter.
5. Consider a complaint to the Malaysian Medical Council, which can reprimand, impose conditions on, suspend or strike off a doctor, and impose a fine, under section 30 of the Medical Act 1971 (Act 50). It does not award compensation.

Compensation comes through a civil claim or a settlement, and time limits apply: generally six years against private hospitals and doctors in Peninsular Malaysia, and 36 months against government hospitals. Our medical negligence lawyers review the records at a consultation before advising.