The rights of patients in Malta : an urgent need for legislation

Abstract

In article 29 of the Health Act of 2013 it was established that within two years of the coming into force of the same Act a Patients’ Charter setting “out a summary of the rights and responsibilities of patients and other relevant persons as existing at the time of publication” had to be published. In this dissertation I argue that on the one hand an Act would be a more pertinent legal instrument than a Charter to address the present needs in the area of Patient Rights and on the other hand, what is really needed is not a summary of the rights obtainable at the moment, as the law is suggesting, but a complete re-thinking of the subject matter introducing new concepts into Maltese law, where and as necessary. In the first part of this dissertation I introduce the subject of patients’ rights against the different backgrounds obtainable under the diverse healthcare systems as in practice around the world. As one may expect the level of observance of patients’ rights varies considerably depending on the availability of resources, financial, human or otherwise. Following that, this study identifies those basic rights that in my opinion form the backbone of the corpus of patients’ rights. Also in this first part of the dissertation I analysed the relationship, and differences, between patients’ rights and the application of the fundamental human rights to issues encountered in the healthcare sector. The second part of this study is dedicated to the detailed analysis of each of the eight basic patients’ rights identified in the first part. The extent of the application of such rights under the Maltese Law is the basis for discussion for such rights before embarking, in each case, on a comparative study with foreign legislations. Since the concept of having one comprehensive piece of legislation dealing with the rights of patients is lacking under our Law, very often the Maltese courts had to resort to the general Civil Law principles in order to provide for the protection of patients. Together with the discussion of the identified rights this study identifies, in each case, those areas that need further specific legislation under our law. The underlying argument of this study is that the way patients’ rights are dealt with from a legal perspective in Malta needs to be aligned with the position obtained under most of the other European jurisdictions. This study culminates, in its final part, in a number of recommendations of how this ought to be achieved, including a draft Patients’ Rights Act and a draft Patients’ Rights Charter.