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

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 dec...

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Main Authors: Jahn Kassim, Puteri Nemie, Hazelan, Hairul Akram
Format: Conference or Workshop Item
Language:English
English
Published: 2021
Subjects:
K Law (General)
Online Access:http://irep.iium.edu.my/88278/1/ICFLprogram-book-icfl-2021.pdf
http://irep.iium.edu.my/88278/9/THE%20NECESSITY%20OF%20SPOUSAL%20CONSENT%20FROM%20THE%20SHARIAH%20AND%20MALAYSIAN%20LAW%20PERSPECTIVES.pdf
http://irep.iium.edu.my/88278/
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spelling my.iium.irep.882782021-02-11T03:26:00Z http://irep.iium.edu.my/88278/ The necessity of spousal consent from the Shariah and Malaysian Law perspectives Jahn Kassim, Puteri Nemie Hazelan, Hairul Akram K Law (General) 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. 2021-02-09 Conference or Workshop Item NonPeerReviewed application/pdf en http://irep.iium.edu.my/88278/1/ICFLprogram-book-icfl-2021.pdf application/pdf en http://irep.iium.edu.my/88278/9/THE%20NECESSITY%20OF%20SPOUSAL%20CONSENT%20FROM%20THE%20SHARIAH%20AND%20MALAYSIAN%20LAW%20PERSPECTIVES.pdf 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)
institution Universiti Islam Antarabangsa Malaysia
building IIUM Library
collection Institutional Repository
continent Asia
country Malaysia
content_provider International Islamic University Malaysia
content_source IIUM Repository (IREP)
url_provider http://irep.iium.edu.my/
language English
English
topic K Law (General)
spellingShingle K Law (General)
Jahn Kassim, Puteri Nemie
Hazelan, Hairul Akram
The necessity of spousal consent from the Shariah and Malaysian Law perspectives
description 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.
format Conference or Workshop Item
author Jahn Kassim, Puteri Nemie
Hazelan, Hairul Akram
author_facet Jahn Kassim, Puteri Nemie
Hazelan, Hairul Akram
author_sort Jahn Kassim, Puteri Nemie
title The necessity of spousal consent from the Shariah and Malaysian Law perspectives
title_short The necessity of spousal consent from the Shariah and Malaysian Law perspectives
title_full The necessity of spousal consent from the Shariah and Malaysian Law perspectives
title_fullStr The necessity of spousal consent from the Shariah and Malaysian Law perspectives
title_full_unstemmed The necessity of spousal consent from the Shariah and Malaysian Law perspectives
title_sort necessity of spousal consent from the shariah and malaysian law perspectives
publishDate 2021
url http://irep.iium.edu.my/88278/1/ICFLprogram-book-icfl-2021.pdf
http://irep.iium.edu.my/88278/9/THE%20NECESSITY%20OF%20SPOUSAL%20CONSENT%20FROM%20THE%20SHARIAH%20AND%20MALAYSIAN%20LAW%20PERSPECTIVES.pdf
http://irep.iium.edu.my/88278/
_version_ 1691732934810140672
score 13.211869

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