Duty to disclose material risks by healthcare providers: The widening ambit of legal obligations

The duty to disclose material risks by healthcare providers has been a growing legal, medical and judicial concern. The developing concern emanates from the burgeoning legal cases in this area since the decision of the Malaysian apex court in 2007, declaring that the standard of care for healthcare providers in disclosing material risks in medical treatment requires not just expert evidence but other factors that are relevant to the circumstances of the patient. This has led to the respect for patient autonomy and self-determination becoming dominant yardsticks in determining healthcare providers’ liability surrounding disclosure of material risks. Consequently, the greater recognition by the courts in patient’s self-determination has imposed greater obligations on healthcare providers. Healthcare providers have to ensure that the disclosure of material risks is within a carefully planned process taking into considerations discussions of the proposed actions, risks, benefits, alternatives and ultimately, patient comprehension and voluntary agreement. Nevertheless, internal and external constraints might operate to prevent full disclosure of benefits and risks when weighed against a spectrum of structural realities which eventually, may inhibit the completion of collaborative risk management processes