DEFINITIONS

Reproductive health means a healthy state of physical, mental, and social being and not solely free from diseases related to the reproductive system. It also includes the ability to establish sexual relationship that is satisfactory and safe and free to make responsible choices.

Sexual health is an important component of reproductive health. It is the ability of men and women to perform sexual activities responsibly and safely.

Teen as interpreted by the World Health Organization (WHO) is someone who is between the age of 10 and 19. It is a time of transition from childhood to adulthood which is filled with physical, mental and social challenges.

Children as in Section 2 of the Child Act 2001 [Act 611] is defined as a person under the age of 18 years. Accordingly, the Child Act 2001 applies to all children under the age of 18 years in accordance with Section 2 of the Age of Major Act 1971 [Act 21] which sets the age of a major as 18 years.

STATEMENT (FACTS)

“Protecting and promoting the rights of adolescents to receive reproductive health education, information and treatment aimed at reducing the rate of teenage pregnancies”.

Malaysia has adopted the ‘United Nation’s International Conference on Population and Development (ICPD) Plan Of Action’ held inCairo in 1994, which emphasized the need for:

Malaysia has also adopted the ‘UN Convention on Rights of the Child 1989’ that is based on four basic principles, namely:

• Non-discrimination (Article 2);

•  What is best for the child (Article 3);

• The rights of children to healthy growth and development (Article 6) and

•  Respect of views and opinions of children (Article 12).

FREQUENTLY ASKED QUESTIONS

1. QUESTION:

   At what age can an adolescent visit/ attend the clinic session / hospital alone to seek advice and treatment related to sexual and reproductive health? 

   ANSWER:

   To date, there has been no provision in writing that exists in the country that prevent adolescents/teenagers from coming to clinic / hospital to seek advice from any health personnel if there are problems related to sexual and reproductive health. However, there are a number of laws in the country governing the medical procedures and treatment that involve any medical procedures and surgery as a treatment, such as stipulated in Regulation 47 of the Facilities and Healthcare Services Regulations (Private Hospitals and Private Healthcare Facilities) 2006 [ PU (A) 138/2006] which states that a valid consent for patients who are unmarried and under the age of 18 years shall be obtained from the parent or guardian of the patient. Section 5 of Telemedicine Act 1997 (not yet in force) [Act 564] also provides that in cases where the patient has not reached the age of an adult, permission may be given to the patient through a friend or guardian ad idem (guardian ad idem ).

   Section 77 of the Mental Health Act 2001 [Act 615] also provides that “where a mentally disordered person is required to undergo surgery, electroconvulsive therapy or clinical trials, consent for any of them may be given –

   (A) by the patient himself if he is capable of giving consent as assessed by a psychiatrist;

   (B) by his guardian in the case of a minor or a relative in the case of an adult, if the patient is incapable of giving consent;

   Section 3 of the Guardianship of Child Act 1961 [Act 351] (not applicable to Muslims) also states that a guardian to a child who has not attained the age of a major shall be responsible for matters relating to the education and health of the child.

   Although the application of the law mentioned above limited its application to institutions and certain conditions such as private hospitals and the patients admitted to a psychiatric hospital under the Mental Health Act 2001 [Act 615], the Ministry of Health is likely to adopt a similar approach in cases where a medical procedure involving any procedures and surgery as treatment requires a valid consent obtained from the parent or guardian when the patient is under the age 18 years.

   This approach is in line with the Circular of the Director General of Health that requires the consent or permission from a parent or guardian before any treatment or operation for the patient under the age of 18 years is performed by the health staff of the Ministry of Health. As an example, Circular no. 12/1988 on “Handling of Rape Victims” also states that if the victim is under the age 18 years, the authorization of a parent or guardian is required before any health check may be done.

   Further, the Circular of the Director General of Health no. 16/2010 on Provision of Medical Reports by Hospitals and Medical Institutions, also states that any application for medical reports for patients under the age of 18 years shall be done by the parent or caregiver. This, clearly indicates the rights of patients under the age of 18 years to make a decision on the issue of their medical condition (including problems related to sexual and reproductive health) is subject to the parent or guardian, thus, enabling them to obtain the medical report on details of treatment through the application of a parent or guardian.

2. QUESTION:

   At what age can a person give consent to treatment for himself/herself?

   ANSWER:

   Section 2 of the Age of Major Act 1971 [Act 21] and ChildAct 2001 [Act 611] state that the age of major for all men and women is 18 years and above. Accordingly, in general, only a person aged 18 years and above can give authorization for himself/herself for the purpose of obtaining medical treatment.

3. QUESTION:

   Is the consent of a parent or guardian required for services not invasive (non-invasive) such as advice and counseling to youth under the age of 18?

   ANSWER:

   To date, there has been no provision in writing that exists in the country which prevents teenagers from coming / attending the clinic / hospital for advice and counseling as these services are non-invasive.

   However, if possible, it is better to get the consent of a parent or guardian in writing to ensure that the approach taken by the Ministry is in line with the provisions of the law, professional ethics and policies on this issue.

4. QUESTION:

   Is the consent of a parent or guardian required for the confirmation of pregnancy through tests such as the Urine Pregnancy Test (UPT) and Abdominal Ultrasound for girls under the age of 18 years?

   ANSWER:

   The best approach in this situation is to get authorization from a parent or guardian before a urine test for pregnancy (UPT) or an ultrasound is done even though these procedures are not invasive. This is to ensure that the approach taken by the Ministry is in line with the provisions of the law and professional medical ethics. In accordance with the Circular of the Director General Health no. 16/2010, the report on the medical treatment of patients under the age of 18 years shall also be requested by the parent or guardian of the patient. This clearly shows that all the information on medical care and health of patients under the age of 18 years is subject to the parent or guardian of the patient.

5. QUESTION:

   If the consent of a parent or guardian cannot be obtained for the treatment of sexual and reproductive health of the teenager under the age of 18 years, will the individual be given treatment?

   ANSWER:

   In situations where medical personnel continue with treatment for sexual and reproductive health on adolescents under the age of 18 years without the consent of the parent or guardian, such personnel are exposed to the action of the court for committing the offense of attack (assault) and touch (battery) without having to proof injury to the patient.

   Although the United Kingdom’s case of Gillick v West Norfolk and Wisbech Health Authority [1985] 3 All ER 402 (UK House of Lords) decided that adolescents aged 16 years can give consent which is valid in determining medical treatment subject to the principles set out in the Lower Fraser Guidelines, the approach taken by this case however is not applicable in Malaysia as no court decisions have been made in Malaysia on this issue.

   The approach taken in Malaysia depends on the written statutes and existing circulars in force in the country. As mentioned, despite the provisions of the existing laws which do not touch specifically on the issue of consent in adolescents under the age of 18 years, it affects the right of adolescents in making judgments in deciding daily issues.

   Accordingly, medical personnel are advised to ensure that authorization is obtained from the parent or guardian of the teenager before any medical treatment is given.

   Authorization in terms of the law as decided in the cases in court are just not needed in an emergency in which delay by the medical officer in giving treatment to the patient would endanger the life of the patient. In circumstances where this situation does not arise, proper authorization is to be obtained before any medical treatment can be performed on the patient.

6. QUESTION:

   Are medical personnel required to tell/inform a parent or guardian if a teenager comes alone to the clinic / hospital for advice and treatment related to sexual and reproductive health?

   ANSWER:

   In providing advice to teenagers, medical personnel are not required to obtain proper authorization from the parent or guardian of the teenager as long as the service is non-invasive. Until now, there has been no provision in writing that exists in this country that prevents teenagers from coming/attending the clinic / hospital for advice and counseling if needed. However, the best approach is to obtain the consent of parents or guardians in writing to ensure that all actions taken by the Ministry are in line with the provisions of the law, professional ethics and policy decisions of the Ministry on this issue. In circumstances where there is a need for medical treatment, the health staff shall ensure that authorization is obtained from the parent or guardian of teenagers being treated. No specific party is necessary for obtaining legal permission; it is sufficient if authorization is obtained in writing in order to facilitate the process of documenting the truth. In this regard, both the health staff and the teenager can work together in obtaining valid consent.

   In serious cases, the medical personnel who handle the case will be responsible for ensuring that the authorities are informed quickly in situations where the medical personnel suspect that a teenager is involved with such crimes as rape, torture, drugs or the like. In another situation where a medical officer suspects that the teenager will endanger himself/herself (as if they have plans to kill or hurt themselves), endanger others (example: have a plan or hurt others) and there is an element where other people will harm them (example: someone else has a plan or have injured the teenager physically, mentally and / or sexually), the medical officer is required to inform the higher authorities. Apart from the situations described above, the hospital staff can also make a report to the authorities if it is suspected that the child belongs to the category of children in need of care and protection under Section 17 of the Child Act 2001 [Act 611] or if the medical personnel suspects a child is a victim or involved in case of statutory rape as provided under Section 375 (f) of the Penal Code [Act 574].

   Under the Child Act 2001 [Act 611], children who are victims will be placed in the custody of the ‘protector’ as stated in Section 2 of Act 611. Section 24 of the Act further provides power to the ‘protector’ who has been appointed to provide authorization for medical treatment in situations where patients require treatment for illness, injury or wounds. However, if a child is suffering from illness, injury or serious wounds or require surgical or psychiatric treatment, the parent or guardian of the child must be informed and a valid consent in writing shall be obtained before any medical treatment can be given to the victim of crime.

7. QUESTION:

   What is meant by “authority” in the events above as when an adolescent comes to the clinic / hospital for advice and counseling related to sexual and reproductive health?

   ANSWER:

   Under Section 27 of the Child Act 2001 [Act 611], the matter shall be notified to the ‘Protector’ who is usually the Social Welfare Officer.

8. QUESTION:

   What is the role, functions and responsibilities of the ‘Protector’?

   ANSWER:

   Under the Child Act 2001 [Act 611], the ‘Protector’ is responsible for providing care, control, protection and rehabilitation of children for their best interest.

   In addition, the ‘Protector’ also has the responsibility to undertake the following:

   • Handling of abuse cases, torture and neglect of children under the Child Act 2001 [Act 611];

   • Cases of child welfare;

   • Case-by-case application of children for adoption

   • Registration of adopted children in accordance with the Registration of Adoption Act 1952 [Act 253];

   • Cases of adoption (legal adoption) according to the Adoption Act 1952 [Act 257];

   • Cases of services of child witness under the of Child Witness Evidence Act 2007 [Act 676];

   • Case of the child victims of trafficking according to the Anti-Trafficking of Persons Act 2007 [Act 670].
      

9. QUESTION:

   Apart from those mentioned above, what else need to be conveyed by medical personnel to the proper authorities if such matters are detected during the visit by an adolescent to the clinic / hospital for advice and treatment related to sexual and reproductive health?

   ANSWER:

   Any items/facts of interest to the health and well-being in general, for example to control and prevent the spread of infectious diseases as prescribed under the Prevention and Control of Infectious Diseases Act 1988 [Act 342], shall be notified to the authorities.

10. QUESTION:

    What actions should be taken by a health/medical staff providing counseling and advisory services on teens coming to the clinic / hospital for advice and treatment related to sexual and reproductive health?

    ANSWER:

    The health/medical personnel are advised to discuss with the teens the issue of valid consent and the need for the matter to be disclosed to the parent or guardian. The health/medical personnel will repeat and practice beforehand with teenagers on the information to be communicated to the parent or guardian to ensure that the process is done smoothly.

11. QUESTION:

    What is statutory rape?

    ANSWER:

    Under Section 375 (f) of the Penal Code [Act 574], a man is alleged to have committed rape if he has sex with a woman either without the consent of the woman or with or without the consent a woman who is under the age of 16 years.

REFERENCES

1. Kementerian Kesihatan Malaysia. (2011). Garis panduan pengendalian masalah kesihatan seksual dan reproduktif remaja di Klinik Kesihatan. Putrajaya: Percetakan Nasional Malaysia Sdn Bhd.

2. Pesuruhjaya Penyemak Undang-Undang, Malaysia. (2006). Undang-undang Malaysia. Akta 21. Akta umur dewasa 1971. Kuala Lumpur: Malayan Law Journal Sdn. Bhd dan Percetakan Nasional Malaysia Sdn Bhd.

3. Undang-undang Malaysia. Akta Kanak-Kanak 2001 (Akta 611) dan peraturan-peraturan.(2010). Kuala Lumpur: International Law Book Services.

4. United Nations. (1994). United Nations International Conference on Population and Development (ICPD). Cairo, Egypt.

5.  United Nations. (1989). Conventions on the Rights of the Child. New York, USA.

6. The Medical Practitioners Board of Victoria. (2004). Consent for treatment and confidentiality in young people. Melbourne, Australia.

7. The Malaysian Medical Association. (2002). Code of medical ethics. Kuala Lumpur: Percetakan Nasional Malaysia Sdn Bhd.

8. The Malaysian Medical Council. (1987). Code of professional conduct. Kuala Lumpur: Percetakan Nasional Malaysia Sdn. Bhd.

9. Pesuruhjaya Penyemak Undang-Undang, Malaysia. (2006). Undang-undang Malaysia. Akta 342. Akta pencegahan dan pengawalan penyakit 1988. Kuala Lumpur: Malayan Law Journal Sdn. Bhd dan Percetakan Nasional Malaysia Sdn Bhd.

10. Undang-undang Malaysia. Kanun Keseksaan (Akta 574).(2010). Kuala Lumpur: International Law Book Services.