PUTRAJAYA (Jan 8): The Federal Court will determine whether a medical officer performing an autopsy owes a duty of care to the deceased or his kin, in an almost 16-year-old suspicious death case.

A three-member apex court panel led by President of the Court of Appeal (COA) Datuk Abu Bakar Jais, unanimously granted leave (permission) to Joseph Anthony, father of the government medical officer who died under suspicious circumstances in Langkawi 16 years ago, to proceed with his final appeal. 

Thursday’s panel, which also consisted of Federal Court judges Tan Sri Nallini Pathmanathan and Datuk Azimah Omar, however, only granted leave to a single question of law as it has yet to be definitively determined by the courts.

The question of law to be determined is whether a government medical officer performing a post-mortem per the law owes a duty to the state; or to private individuals (the deceased and their kin); or both.

For civil cases such as this, applicants must first obtain leave (permission) before the actual appeal is heard. Leave is granted to cases which, among others, contain novel questions of law and are of public importance.

The panel also made no order as to cost.

M Visvananthan led a team of lawyers representing Joseph, while Senior Federal Counsel (SFC) Ahmad Hanir bin Hambaly @ Arwi appeared for the respondents.

Elaborating on the question of law, Visvanathan told The Edge that doctors can be sued for negligence as they owe a duty of care to their patients.

"[But] how is it that a medical officer who conducts the post mortem does not owe a duty of care to the deceased or kin? Shouldn't the same standards apply across the board to all medical officers?" he asked.

Sebastian Anthony, 30, was a medical officer attached to Klinik Kesihatan Kuah, Langkawi. He was found dead in his quarters in November 2010.

Muhammad Arif Muhamad Rasat, the medical officer who conducted the autopsy, determined that the cause of death was "unascertained".

Dissatisfied, the family took the matter to court and obtained a court order in 2015 to have Sebastian’s remains exhumed for a second post-mortem.

Joseph claims that two pathologists, in separate reports, found that the first post-mortem had been negligent, incompetent and to be of no probative value.

In 2018, Joseph — in his capacity as the administrator of Sebastian’s estate — hauled Muhammad Arif and five others to court.

Among others, the 75 year-old is suing Muhammad Arif for negligence and breach of duty of care.

In June 2023, then judicial commissioner Leong Wai Hong dismissed the suit. 

In his 83 page grounds of judgement, Leong noted that no duty of care can be owed to a dead person "as he is an inanimate entity".

Leong added that before a careless act can be said to be negligent, there must first exist a duty to the aggrieved individual.

Joseph’s subsequent appeal was dismissed in August this year. A three-member panel led by then appellate court judge Datuk Collin Lawrence Sequerah upheld the High Court judgement.