Consent not required for a post mortem in a police case

Consent not required for a post mortem in a police case

The public have so little confidence in the Malaysian police that they question every action taken by them.

On September 14, in Rawang, the police shot and killed three persons. I went to the funeral of a couple of them. I went because I wanted to assess the sentiment of people who attended the funeral.

I had read reports that the police claimed the men whom they killed were gang members. I had a seen a video in which the father of one of the dead men suggested the shooting was an execution conducted by “gangster cops.”

Some years ago, in the context of involvement of Indians in gangs, I was shown videos of funerals of gangsters. I expected many “gangster types” would be at the funeral. I was concerned about my safety.

I thought people might think I was with the Special Branch of the police or that I was a gang member or that I was an NGO man or a lawyer who wished to exploit the family’s grief in order gain publicity.

Some people regarded me with suspicion. They asked why I was there. They asked cautiously, as if they thought I was an undercover cop.

I handed out my Citizens Against Enforced Disappearances (CAGED) name-card and explained that I am driven by an urge to get justice for social activist Amri Che Mat and Pastor Raymond Koh – who were abducted by the police more than 30 months ago and have not been heard of since.

I asked what information the police had given to the family. I said what the police have said is important to me because the families of Amri and Raymond complain often that “the police don’t give us updates.”

They told me what I already knew from news reports.

Someone asked me “Under Malaysian law, can the body of a dead person be cut up and examined without the consent of the family?” He added, “in other countries, the families must first give their consent.”

My answer was, “I cannot say for sure, you should ask the lawyers, but I think it is normal for police to decide and for hospitals to do a post-mortem if they are asked to by the police.”

Since then, I have done research and I have a better answer.

According to a paper published in the Malaysian Journal of Pathology by University of Malaya’s Dr Ong Beng Beng (Department of Pathology) and Ms Sharon Kaur (Faculty of Law), there are two types of post-mortem:

(1) A hospital post-mortem, which is requested by hospital staff, “for the furtherance of knowledge and the purpose of medical audit.” A hospital post-mortem cannot be performed without the consent of the next-of-kin.

(2) A medico-legal post-mortem, which is requested either by the police or a magistrate for the purpose of investigating a death. A medico-legal post-mortem does not require the consent of next-of-kin.

I have also learned that there are some countries where families may object to an invasive post-mortem – “invasive” because cutting tools are used on the body. For instance, in New Zealand, a family can appeal to the Coroner to turn down a police request for post-mortem.

Perhaps my questioner was applying to the present (police) case some experience he has had or has heard about of hospital post-mortems or the practice in countries such as New Zealand.

In Malaysia, the Criminal Procedure Code (CPC) mandates that “every officer making an investigation … into the cause of any death,” shall “inform the nearest Government Medical Officer.” (Chapter XXXII: Inquiries of Deaths)

Section 331 of the CPC is titled “Post Mortem examination of body.” It includes this: “The Medical Officer, if it is necessary in order to ascertain the cause of death, shall extend the examination to the dissection of the body and an analysis of any portion of it, and may cause any portion of it to be transmitted to the Institute for Medical Research.” 

In short, if the police order a post-mortem, the Medical Officer must perform it. He can release the body only after all activity required to be performed on the body is done.

The police acted correctly.

Rama Ramanathan is an activist for Citizens Against Enforced Disappearances

The views expressed here are those of the author/contributor and do not necessarily represent the views of The Leaders Online.