Artificial Intelligence and Medical Negligence in Malaysia: Confronting the Informed Consent Dilemma

Abstract

Artificial Intelligence (AI) is poised to contribute significant impacts in medical diagnostic and decision making by enabling unparalleled performance leaps. The integration of AI to medical diagnosis and decision-making process potentially scales down the number of medical errors and misdiagnoses -and allow diagnosis based on unidentified, black-boxed interpretations of data. However, by transferring parts of the decision-making role to an algorithm, increased reliance on AI impedes potential malpractice claims when doctors pursue erroneous treatment based on algorithmic recommendations. With more controversial errors surrounding the technology is in the offing, the conventional requirement of informed consent underpinning the operation of medical malpractice is a bottleneck. As AI proliferates in healthcare, new ethical and practical problems concerning informed consent surged. These problems have been the motivation behind this research whereby the use of AI, particularly in determining the course of treatment or procedures for patients, invites such concerns over the informed consent requirement. Indeed, these are novel challenges that surrounds the adoption of AI in the healthcare domain which is vital to be addressed. Therefore, this research investigates how AI intersects with the concept of informed consent and proceed to determine to what extent AI's involvement in a patient's health should be disclosed under the current doctrine. Combining doctrinal analysis and a case study approach, this research explores legal propositions through the reasoning of statutory provisions, related case law and reports of medical malpractice claims addressing the potential treatment error given at the suggestion of an AI system. The research has contributed in expanding the requirement of informed consent in light of the use of AI for clinical decision making. This outcome is significant in shaping the transparency and trustworthiness in the governance of AI in healthcare. Such contribution is ultimately in tandem with the Strategic Thrust 2 of the Shared Prosperity Vision 2030 initiated by the Ministry of Economic Affairs in restructuring the priorities of Malaysia's development. This is aimed at revolutionising the healthcare ecosystem through transformative technologies and comprehensive ICT solutions outlined in the Key Economic Growth Activities (KEGA) 14, which includes AI as advanced and modern services. An operative malpractice liability framework is paramount in providing incentives for policing accurate diagnosis and treatment decisions for patients, all whilst savouring the benefits of disruptive medical technologies like AI.

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