The legal framework governing the rights and responsibilities of people living with epilepsy
March 6, 2026
Individuals diagnosed with epilepsy after obtaining a driver’s licence may face revocation if medical evidence indicates the condition could impair their ability to drive safely.
Epilepsy is generally recognized as a disability under Malaysian law if it is a long-term neurological condition that substantially affects daily life.
“The Persons with Disabilities Act 2008 (Act 685) defines persons with disabilities as those with long-term physical, mental, intellectual, or sensory impairments that hinder full participation in society. Of course, these are supported by medical reports, which then allow the patient to obtain the relevant registration cards and receive support from the government,” explains Ashwin Kumar, Assistant Director of Legal Affairs at Sunway Medical Center, Sunway City, during the International Epilepsy Day symposium, Enhancing Epilepsy Awareness and Improving Care in Malaysia. However, the legal implications of epilepsy extend beyond disability recognition. The condition also intersects with issues involving driving regulations, criminal liability, medical negligence, patient consent, and mental capacity law. Each of these areas presents unique legal considerations that patients, families, and healthcare practitioners must navigate carefully. Driving and epilepsy The Road Transport Department (RTD) has authority to refuse an application for a driver’s license if the applicant is found to have a medical condition—such as a disease or disability—that may endanger other road users. Epilepsy is specifically recognized as one of these conditions and may affect eligibility for all classes of driver’s licenses. Revocation of license Situations may also arise in which an individual obtains a driver’s license before developing epilepsy or before the condition is diagnosed. In these circumstances, the Director of the Road Transport Department may revoke the license if medical evidence indicates that the individual has developed a condition that affects safe driving. The revocation process typically relies on a medical report prepared by a qualified medical officer. If the report confirms that the license holder has a disease or disability that could impair driving ability, the RTD has legal authority to cancel the license in the interest of public safety. However, doctors do not have a statutory obligation to notify the RTD when they diagnose a patient with epilepsy. This creates a complicated situation because the condition may present a potential risk to others on the road. “You need to look at it on a case-by-case basis because, at the end of the day, as medical practitioners, you want to protect yourself because you have a duty of confidentiality under the law. And you do not want a claim against you for breach of confidentiality. But it is a complex issue and there is always an ethical obligation there. Some spheres of ethics may collide. There may be situations where the waiver of confidentiality can apply,” adds Ashwin. Doctors therefore face a delicate balance between maintaining patient confidentiality and considering the safety of the public. While there may be ethical concerns, the general provisions of Malaysian law do not impose a statutory requirement on physicians to inform the RTD or other authorities about a patient’s epilepsy diagnosis. Criminal liability Another legal issue that sometimes arises concerns criminal liability when a person with epilepsy causes harm to another person during a seizure episode. A fundamental principle of criminal law is that an individual is generally not criminally liable unless the prohibited act is done voluntarily. Acts committed during a state of automatism—meaning without conscious control—may therefore fall outside criminal responsibility. This concept involves two key components: actus reus and mens rea. Actus reus refers to the physical act that constitutes the crime. For example, harm may have occurred, someone may have been injured, or even killed. However, mens rea refers to the mental element of the crime. It involves examining the individual’s intention or state of mind at the time the act was committed. The legal question is whether the person intended to cause harm or understood the nature of their actions. Acts performed during automatism may occur without conscious control and therefore may fall outside criminal responsibility. Section 84 of the Penal Code provides a defense related to mental incapacity. The provision states: “Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to the law.” In such circumstances, the individual may not understand what is happening or may lack awareness of the nature of their actions. Criminal liability and epilepsy However, this defense cannot be used automatically in every case involving epilepsy. A person cannot simply claim, “I have epilepsy, therefore I am immune from the law.” Not every epileptic episode excuses criminal liability. Epilepsy alone cannot be used as a blanket defense. Instead, the burden of proof lies with the accused person to establish that the harmful act occurred during a seizure and that they lacked conscious awareness or control at the time. In practice, the prosecution typically presents evidence showing that a harmful act occurred. For example, the prosecution may demonstrate that the accused caused injury or death to another person. The defense must then present evidence supporting the claim that the act occurred during a seizure episode. Such evidence may include:
Medical practitioners may be called to testify in court regarding their findings and clinical observations related to the patient’s epilepsy. Their testimony may assist the court in determining whether the episode occurred during a seizure and whether the individual lacked conscious control. Therefore, epilepsy does not automatically provide an escape from criminal responsibility. Each case must be evaluated based on the available evidence. Common areas of claims involving epilepsy From the perspective of hospitals, doctors, and healthcare practitioners, certain types of medical negligence claims frequently arise in cases involving epilepsy. Common themes include allegations that:
Duty of care and standard of care When treating patients with epilepsy, there is no different legal standard compared with treating other patients. Doctors owe patients with epilepsy the same legal duty of care as any other patient. They must act with the same level of skill, knowledge, and care that a reasonably competent practitioner in the same field would provide under similar circumstances. The concept of duty of care refers to the obligation of healthcare providers to ensure that patients receive treatment that meets accepted professional standards and protects them from harm. Elements of a medical negligence claim In Malaysia, there are four essential elements required to establish a medical negligence claim. If any of these elements is missing, the claim will fail.
Establishing breach of duty Two main legal tests are applied in Malaysia to determine whether a breach of duty has occurred in medical negligence cases. Bolam test The first test applied is the Bolam test. This test establishes that a doctor is not negligent if their actions are consistent with a practice accepted as proper by a responsible body of medical professionals skilled in the relevant field. In practical terms, this is why expert witnesses are commonly called to testify in medical negligence cases. These experts provide professional opinions regarding whether the treatment given met the accepted standards within the medical community. Unlike many other legal disputes, courts in medical negligence cases rely heavily on expert evidence to determine whether the required standard of care was met. Bolitho Addendum The Bolitho addendum introduced an additional requirement of logical analysis. Even if a particular practice is accepted by a body of medical professionals, it must still withstand a logical test of reasonableness in order to be considered a valid standard of care. “This is where, when you have a group of experts saying this is the correct approach and another group of experts saying something different, the courts are then required to determine which position is logically defensible, which can be a very difficult process.” Consent - duty to advise on material risks When treating patients with epilepsy, obtaining proper consent is an important legal requirement. Healthcare practitioners must explain the proposed treatment and inform patients about any material risks associated with the procedure or medication. This includes situations where surgery or specific treatments may carry a risk of seizures or other complications. Proper documentation of the consent process is essential. If a patient undergoes surgery or receives medication associated with seizure risk, those risks should be clearly recorded. Malaysian law draws guidance from the Australian case Rogers v Whitaker, which established that doctors have a duty to warn patients of material risks inherent in proposed treatment. A risk is considered material if a reasonable person in the patient’s position would likely attach significance to it, or if the medical practitioner is aware—or should reasonably be aware—that the particular patient would attach significance to that risk. For example, if a patient is a professional piano player and requires surgery on the hand, even a small risk affecting hand function may be highly significant because the patient’s livelihood depends on their ability to perform. Similarly, if the practitioner knows that a particular risk would be important to the patient’s circumstances, that risk should be discussed during the consent process. The critical point is proper documentation. Healthcare practitioners should:
“From my practice and experience, the common problem that often arises—and eventually becomes a major dispute in court—is when documentation is incomplete. Lawyers begin scrambling when the records are not there,” explains Ashwin. Examples of documentation problems include inconsistencies in consent forms, such as when the doctor signs on one date while the witness or nurse signs on another date. Language barriers can also complicate the consent process. If a patient speaks Japanese, for instance, and no interpreter is available, translation applications may be used. However, this should be clearly documented in the clinical notes. Documentation can make a significant difference in legal proceedings and may determine the outcome of a case. Accurate records may allow disputes to be resolved more efficiently rather than continuing in court for years. Clear handwriting is also important because illegible notes may create additional difficulties in legal interpretation. Prolonged epilepsy leading to mental incapacity A further legal issue arises when prolonged epilepsy leads to mental incapacity. Under the current legal framework, there is a gap in the law. The Mental Health Act 2001 allows the court to establish a committee or committees to manage the affairs and estate of a mentally disordered person. However, this process can only begin after the individual has already become mentally disordered. In other words, legal intervention generally occurs only after the patient has lost mental capacity. This creates significant challenges for families and patients because they may not have prepared legal arrangements in advance. Once incapacity occurs, family members must apply to the court to establish a committee to manage the patient’s affairs. "The process can be lengthy because the court must first determine whether the individual is legally considered mentally disordered. Only after this determination can the court issue directions regarding the management of the individual’s estate and personal affairs. This is where families and patients struggle, because they may not have their affairs in order,” Ashwin explains. Another challenge arises when individuals wish to set out advance directives or instructions regarding what should happen if they lose mental capacity. One common legal tool used internationally is the power of attorney. However, under the Powers of Attorney Act 1949, a power of attorney executed by a donor to appoint another person to administer their affairs in the event of mental incapacity is revoked once the donor becomes mentally disordered or mentally unsound. The only possible exception may occur if the power of attorney is granted for valuable consideration and explicitly expressed to be irrevocable. This creates a significant legal problem. “We have a gap in our law because Malaysian law does not recognize lasting powers of attorney,” Ashwin highlights. In several other jurisdictions, lasting powers of attorney allow individuals to appoint a trusted person to continue managing their affairs even after mental incapacity occurs. In Malaysia, however, such arrangements are not currently recognized under existing legislation. Similarly, advance medical directives are not recognized under Malaysian law. If a patient provides written instructions specifying their medical preferences in the event of incapacity, the document does not carry formal legal protection. Even pre-appointed estate managers are not legally recognized. Proposed legislation To address these issues, proposed legislation - the Mental Capacity Act has been discussed. This proposed law would allow individuals to make legally recognized decisions while they still have mental capacity. Countries such as the United Kingdom and Singapore already have similar legislation in place. Under such frameworks, patients could document their wishes regarding medical care and financial management should they lose capacity in the future. Patients could also appoint trusted decision-makers through powers of attorney that remain valid even after incapacity occurs. Healthcare practitioners could then rely on these documents when making treatment decisions on behalf of patients who are no longer capable of expressing their wishes. At present, however, Malaysia does not yet have such legislation in force. As a result, when patients lose mental capacity, physicians and families often face difficult legal uncertainty. Disputes may ultimately require court intervention, which can make the situation complex and lengthy to resolve. Employment and insurance considerations Epilepsy can also affect employment and insurance matters. Under current Malaysian law, there are no comprehensive anti-discrimination statutes specifically protecting individuals with epilepsy in the workplace. Employers may exercise discretion when assessing employee fitness for work. In some cases, employers may terminate employees if they determine that medical conditions affect job performance or safety. This situation may create challenges for individuals living with epilepsy who wish to maintain employment. Insurance issues also arise. Insurance premiums may be higher for individuals diagnosed with epilepsy. Furthermore, if a policyholder fails to disclose the condition when applying for insurance, the insurer may void the policy. This can create financial difficulties for patients who require ongoing treatment or coverage for medical expenses. |
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