The Cabinet has approved the implementing regulations of Federal Law No. 10 of 2008 on Medical Malpractice pursuant to a decision that was issued by HH Sheikh Mohammed bin Rashid Al Maktoum, Vice-President and Prime Minister of the UAE and Ruler of Dubai and published in the local press on 19th December 2009.
Highlights of the Implementing Regulations of the Medical Malpractice Law
Article 3 of the implementing regulations lays down various rules to be followed by those engaged in the medical profession. One of these regulations includes a direction that persons engaged in the practice of the profession must diligently and faithfully discharge their duties without discriminating against patients or colleagues on the basis of religion, race, social values, gender or nationality.
Article 5 was drafted to reflect of the increase in the number of criminal cases arising out of cosmetic surgery procedures which doctors perform on patients of the opposite sex. Article 5 of the Regulations states:
In addition to the prohibited acts listed in Article 5 of the Law, doctors may not clinically examine a patient of the opposite sex unless the following two conditions are met:
- The patient's consent is obtained. This condition will be waived if an emergency precludes obtaining the patient's consent because of his health or psychological or mental state (or any other reason).
- A third person is present. This condition will be waived if an emergency precludes the attendance of a third person such as the doctor failing to find a third person and the patient agreeing to undergo clinical examination without a third person being present.
While this is commendable, the legislator could have tightened the restriction by not giving the patient the option of consent and allowing doctors to examine patients of the opposite sex in emergency cases only.
In Article 6 of the implementing regulations, the legislator addresses the important issue of the reporting of common illnesses in situations where the doctor is suspected of causing the patient a common illness, or where an illness that would necessitate the action of the quarantine measures recommended by the World Health Organisation. The legislator goes on to explain in the Article the steps doctors should take with respect to patients in cases of suspected illness in terms of informing the Health Authority and placing the patient under immediate quarantine.
It is worth noting that common illnesses and illnesses requiring quarantine are defined under Federal Law No. 27 of 1981 Sub-Article 2-4 of said Law defines a common illness as follows:
An illness that is transmitted to others by humans or through animals, insects, food, places or other things and substances that are contaminable by germs."
Article 13 of the Implementing Regulations directs that a High Committee on Medical Malpractice be set up. The purpose of the High Committee is to examine malpractice cases with a view to determining whether there is a causal relationship between the conduct of the medial practitioner and the damage caused to the patient. The High Committee, if requested by the Director General of the Health Authority, the competent Court or the Public Prosecution, shall also identify the professional risks associated with medical practice.
I would have liked to see the membership of the Committee include, in addition to consultant doctors, a judge or legal specialist in the area of civil and criminal liability to ensure a more complete technical opinion is delivered on the matter under consideration. This is because these issues need to be examined in both a legal and medical context in order to have a complete report that will facilitate the work of the various medical and judicial entities involved.
In view of these provisions, I recommend that judicial institutes in the UAE play an active role in this regard by providing courses for members of the High Committee on Medical Malpractice so that they can familiarise themselves with specific matters of jurisprudence and law related to their work, such as the definition, types and elements of liability (including the difference between civil and criminal liability), relevant case law and recent UAE Supreme Court rulings on such matters, the meaning of fault, damage and causal relationship, the legal standard for fault and other related matters which Committee members ought to be aware of given the lack of legal representation on the Committee.
Article 14 of the implementing regulations sets out the limits of insurance with respect to medical malpractice and prohibits the practice of the profession without medical malpractice insurance from an insurance company operating in the UAE. The legislator further prohibits health institutions from hiring UAE licenced practitioners without such insurance and in the case of a visiting doctor, the health institution would be liable to the victim for the doctor's medical malpractice (but may recover from the party at fault).
These implementing regulations ensure that the UAE now has a comprehensive law on medical malpractice. In conclusion, I would call upon all those employed in the medical field, from students to doctors to workers to those connected to the medical profession, to review the Law on Medical Malpractice and its Implementing Regulations and familiarise themselves with the provisions, particularly the mandatory provisions relating to the rules, regulations, procedures, duties and obligations that ought to be complied with while engaged in the profession.
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