Reformation of Malaysian Medical Disciplinary Proceedings Post Medical Act 1971 [Act 50] (Amended 2012)
Nur Liyana Hanapi1*, Anisah Che Ngah2
1 Medical Practice Division, Ministry of Health Malaysia
2 Taylor’s Law School, Taylor’s University, Subang Jaya, Malaysia
*Corresponding Author: nurliyanahanapi@gmail.com Accepted: 20 September 2022 | Published: 30 September 2022
DOI:https://doi.org/10.55057/ajlg.2022.4.3.1
__________________________________________________________________________________________
Abstract: The introduction of the Medical Act 1971 (amended 2012) and Medical Regulation 2017 has significantly impacted how medical disciplinary proceedings in Malaysia are carried out. The amendment’s purpose was to help strengthen the functionality of the Malaysian Medical Council (MMC) as a statutory body governing medical doctors in Malaysia. Changes in medical disciplinary proceedings brought through the introduction of the amended provisions had been fleetingly touched upon in recent years. The focus of this paper is to compare the pre and post amendments to the disciplinary proceedings. Hence the medical disciplinary processes were studied in depth through qualitative means. Findings suggest that there are several weaknesses in the disciplinary procedures that should be addressed to ensure that a balance is struck between public interest and the rights of medical practitioners.
Keywords: Medical Act 1971 [Act 50], Doctors, Disciplinary Proceedings, Natural Justice ___________________________________________________________________________
1. Introduction
Medical disciplinary proceedings are a form of administrative proceedings which consist of formal inquiry or investigation on allegations of breaches in professional standards of conduct involving registered medical practitioners. The punishment given out to errant medical practitioners who were found guilty through the said process may be in the form of various disciplinary actions with revocation of practicing license to be the most severe. The practice of holding such proceedings is neither foreign nor unheard of as most regulatory bodies responsible for regulating medical professionals in various countries have adapted such procedures. Malaysia is included. The Malaysian Medical Council or in short known as the MMC is the statutory body responsible for keeping the order of registered medical practitioners in Malaysia. Incepted through the enactment of the Medical Act 1971 [Act 50], the MMC oversees the matters relating to registering, licensing, competency, and acting disciplinarian for the medical scene in Malaysia by legislation. In 2017, the Medical Act 1971 (amended 2012) and the Medical Regulation 2017 were introduced to replace existing provisions.
The amendment was intended to grant independence and impartiality to the MMC as a regulatory body that has been placed previously under the purview of the Medical Practice Division, Ministry of Health Malaysia. It is also believed to have further assisted in strengthening the functionality of the Malaysian Medical Council (MMC) as a regulatory
body.1 The previous study denotes new changes introduced involving six (6) major domains:
Establishment and Administration of the Council, Registration, Licensing, Compulsory Service, Accreditation of Medical Universities, Recognition of Medical Programmes, and Disciplinary Proceedings (Cheah et al., 2017).2
The Medical (Amendment) Act 2012 and the Medical Regulations 2017 came into force on the 1st of July 2017.3 It is believed that strengthening the Malaysian Medical Council's (MMC) functionality, leads to better regulation of medical practice and ensures safe and quality medical care is being provided to the public.4 As the topic suggests, this article would mainly focus on the reformation of disciplinary proceedings within MMC post legislative amendments.
Disciplinarian Role of the Malaysia Medical Council (MMC)
Laws regulating medical practitioners are heavily influenced by the rules of professional conduct mainly derived from ethics. Ethics are the foundation of the governing force of the medical profession. Laws and regulations in force is to regulate medical professional behaviours and imposedobligations on them. The regulatory and disciplinary powers of the Malaysian Medical Council (MMC) are outlined through existing legislation.
Table 1: Category of Offences Committed Under the s.29 of the Medical Act 1971
Provision Description
s.29(2)(a) Has been convicted in Malaysia or elsewhere of any offense punishable with imprisonment (whether in itself only or in addition to or instead of a fine) s.29(2)(b) Has been guilty of infamous conduct in any professional respect
s.29(2)(c) Has obtained registration by fraud or misrepresentation s.29(2)(d) Was not at the time of his registration entitled to be registered
s.29(2)(e) Has since been removed from the register of medical practitioners maintained in any place outside Malaysia
The MMC’s jurisdiction over registered medical practitioners’ disciplinary matters is as outlined by s.29 and s.30 of the Medical Act 1971 [Act 50].5 These sections include the category of offences committed (Table 1) and disciplinary actions (Table 2) that the Council could impose against errant registered practitioners. Besides the charges listed under s.29, the Preliminary Investigation Committee and Council are also guided by the MMC Code of Professional Conduct 1987. The disciplinary procedures are well-outlined by reg.26 till reg.31 of the Medical Regulation 1974.6 The steps have been outlined which commences from submitting the complaint to the Council's President, followed by forwarding relevant complaints to the Preliminary Investigation Committee, and finally inquiry by the Council.
Judicial review for aggrieved practitioners by the Council's decision to the High Court is possible under the stipulated s.31.
1 The Medical (Amendment) Act 2012: An Analysis and Review of the Six Major Sections [2017] 6 MLJ cxxv
2 The Medical (Amendment) Act 2012: An Analysis and Review of the Six Major Sections [2017] 6 MLJ cxxv
3 Doktor Wajib Miliki Insurans Indemniti Profesional Bermula 2019 | Berita Harian' (Berita Harian, 2017)
<https://www.bharian.com.my/berita/nasional/2017/06/297537/doktor-wajib-miliki-insurans-indemniti- profesional-bermula-2019> accessed 3 September 2022.
4 'Noor Hisham Abdullah' (Facebook.com, 2021) <https://www.facebook.com/DGHisham/posts/medical- amendment-act-2012-and-medical-regulations-2017-medical-practices-in-mal/1613311305359418/> accessed 30 June 2021.
5 Malaysian Medical Council, 'Disciplinary Punishment by The Malaysian Medical Council Against Errant Registered Practitioners from 2009 - 2019' (MMC)
6Ibid
Table 2: Types of Disciplinary Action Taken Under s.30 of the Medical Act 1971
Provision Description
s.30(i) Order the name of the such registered person to be struck off from the register s.30(ii) Order the name of the such registered person to be suspended from the register
for such period as it is thought fit
s.30(iii) Order the registered person to be reprimanded
s.30(iv) Make any such order as aforesaid but suspend the application thereof, subject to such conditions as the council may think fit, for a period, or periods in the aggregate, not exceeding two years, and may, in any case, make such order as the council thinks fit with regard to the payment of the costs of the registrar and of any complainant or of the registered person, and any costs awarded may be recovered as a civil debt
The Rule of Natural Justice
The conceptual rule of natural justice and the framework of disciplinary proceedings are closely tied. The Rule of Natural Justice was introduced and advocated by the judiciary with the purpose to ensure public rights are protected against arbitrary decisions by the administrative authority7. Natural justice recognizes three principles: (i) Nemo debet essc judex in propria causa (No one ought to be judged in his or her own cause), (ii) Audi alterem partem (listen to the other side), and (iii) speaking orders or reasoned decisions.8 The rule essentially outlines the requirement of ensuring individuals, in these instances involving medical practitioners, receive a fair and unbiased hearing before a decision is made that will negatively affect them.
The rule of natural justice remains the main principle that needs to be adhered to and constantly upheld by the Malaysia Medical Council (MMC) irrespective of the purpose of the amendment of the act whichever was the reason intended.
2. Medical Disciplinary Proceedings After the Medical Act 1971 (Amended 2012)
The Medical Amendment Act 2012 and the Medical Regulation 2017 introduced have immensely changed how medical disciplinary proceedings are held. The following reformation involved post amendment of the said legislation regarding the administrative purpose of the MMC disciplinary committee, revamping the existing disciplinary procedures and the introduction of natural justice in medical disputes.
Administrative Repurposing of Malaysia Medical Council (MMC)’S Disciplinary Committee The recent changes covered the composition of the disciplinary committee involved as well as redefining the role and jurisdiction of involved parties. With the new provisions of s.29(3) and (4) of the Medical Act 1971 (amended 2012), a new committee called the Disciplinary Panel (DP), address the complaints and the overall disciplinary proceedings of medical practitioners.
The Disciplinary Panel consists of the Preliminary Investigation Committee (PIC) and the Disciplinary Board (DB) (Figure 1).
7 'Principles Of Natural Justice' <https://blog.ipleaders.in/natural-justice/> accessed 3 September 2022.
8 Ibid
Figure 1: Composition of Disciplinary Panel
The composition of the new DP is explained under Regulation 34 of the new Medical Regulation.9 The bold move to include non-medical individuals within the DP and the DB within a long-standing institution whose business matters have been limited to its own is one that should be applauded.10,11 The regulation further explains that panellists would be appointed on a term basis (not exceeding three years) and would be eligible for re-appointment.12 The task of fact-finding which was previously handled solely by the PIC to be forwarded to the Council for further action has now been taken over by the DB. The new PIC, comprised of not more than five (5) members (vs three (3) members previously), tasked to conduct a preliminary investigation in ascertaining whether or not there would be an inquiry. The DB will now conduct an inquiry on any complaints pertaining to disciplinary matters against medical practitioners.13 If there were sufficient grounds for the allegations, the DB would call the doctor to enter his or her defence.
The role of the Council members has now been limited to deciding on appropriate disciplinary action based on report findings and recommendations by the DB.14 The Council would be allowed to agree or disagree with the findings and is not bound to the recommendation of the DB and may decide otherwise.15 The Council still retains the authority to order a re- investigation by the same DB or through a new DB if felt that the investigation is unsatisfactory.16
Revamping Existing Disciplinary Procedures
Regulation 34 till Regulation 45 of the Medical Regulation 2017 provide details on the MMC’S disciplinary hearings duly conducted.17 Except with the addition of steps/processes (Table 3) to accommodate the newly formed Disciplinary Panel (DP)., the overall process of the disciplinary process much remains the same.
9 Medical Regulation 2017, reg 34
10 Medical Regulation 2017, reg 34(2)(c)
11 Medical Regulation 2017, reg 36(1)(c)
12 Medical Regulation 2017, reg 34(3)
13 Ibid
14 Medical Regulation 2017, reg 45(1)
15 Ibid
16 Medical Regulation 2017, reg 45(1)(c)
17 Medical Regulation 2017, reg 34 till reg 45
Table 3: Additional Steps/Process to the Disciplinary Proceedings Under the Medical Regulation 2017
New Stages Provision
Receiving Complaints or Information
Regulation 38 Complaints Against Practitioners Regulation 39 Summary Dismissal of Complaints Preliminary
Investigation
Committees Inquiry
Regulation 40 Procedure Inquiry
Regulation 41 Records of Inquiry to be transmitted to the Disciplinary Board
Disciplinary Board Inquiry
Regulation 42 Investigation by the Disciplinary Board Council's Decision Regulation 45 Council's decisions
Disciplinary action by the MMC could only be initiated after a formal written complaint against the said medical practitioner is lodged. However, not all cases would end up within the review of the Disciplinary Board. The outcome from the preliminary investigation of the PIC would be submitted back to the Council within thirty (30) days to be decided upon, summarily either dismissed, or forwarded to the Board for an inquiry. Cases that are forwarded to the attention of the Board, would be given a specified date, time, and place for a hearing. The parties involved would be notified in writing, the said charges included, along with the request of attendance before the Board due inquiry process. In cases of serious allegations against a medical practitioner, although the complainant decided to withdraw, the PIC may advise the Council to appoint any independent panel member to pursue the case on behalf of the complainant.
During the inquiry process, the DB would proceed with fact-finding by examining the complainant and his witnesses. The alleged practitioner would be allowed to cross-examine the complainant and his witnesses. After going through the facts, if there is any basis to the allegations, the DB would then frame the charges with justification and order for the medical practitioner to provide his defence. Upon entering defence, the DB would again hear the defence pleas. According to regulation 42(8) the refusal or failure to make any statement or call upon witnesses to defence would be construed as guilty by the Board. If there are grounds to support the charge, the matter would be escalated to the Council for the final verdict. If the allegations made are of no basis, the DB can dismiss the complaint. The Council decides upon any one of the appropriate disciplinary actions listed under s.30 after reviewing findings and recommendations by the DB.18 Instead of the usual disciplinary action, which is punitive in nature, the new provisions introduced more rehabilitative options. This includes the order to seek treatment or to undergo further professional or educational training, whichever the Council deemed necessary.19 The addition of s.30(2) allows the Council to impose fines.
However, no specific detail on the designated amount or type of offence that would be subject to a fine was provided.20
In instances whereby involved practitioners are deemed as a threat to the safety of the public or in the name of public interest, a new procedure under s.29A, allows the DB to issue an Interim Suspension Order (suspension of the involved registered practitioner from the registry, be it the medical registry or the specialist registry) or Interim Restriction Order (allow the involved medical practitioner to practice given he or she complies with the conditions that have been set) of the medical practitioner, whichever is deemed appropriate before the conclusion of the said disciplinary hearing. The Interim Order serving period carried out would not be
18 Medical Regulation 2017, reg 45(1)
19 Medical Amendment Act 2012 substitution of s 30(1)(b)
20 Ibid
more than 12 months.21 The order would be reviewed at the point of 6 months from the date it commences or three months before it ends unless new substantial evidence arises.22 After considering the facts, the outcome would either end in the expiration or revocation of the order, reinstating the medical practitioner immediately or it could lead to the complete opposite.23 Although the Interim Order is stated to be not more than 12 months, a request for a period of extension can be made by the DB through submissions to the Council's President if necessary.24 An Appeal in Instances of Disputes
Under s.31(2) of the pre-amendment Act, aggrieved medical practitioners who wish to appeal against the Council’s decision were allowed to submit their appeal to the High Court within a month from the date of the judgment.25 The new amendment brought new a change to the clause which saw the deletion of s.31(2).26 It has been replaced with new provisions that help open up opportunities for medical practitioners to submit their appeals against the Council’s decision up to the Federal court level for review. In contrast, medical practitioners who were put under Interim Order by the Disciplinary Board (DB) before the conclusion of the proceedings and wish to appeal against such decision, would be allowed to put in a submission of the appeal to the Minister himself instead as outlined in s.29(11) till s.29(13) of the Medical Act 1971 (amended 2012). Further, the minister has the authority to maintain, reverse or vary the decision by the DB (inclusive of the President’s) and the decision made is both final and binding.27
21 Medical Amendment Act 2012 insertion of 29A(1)(b)
22 Medical Amendment Act 2012 insertion of s 29A(3)
23 Medical Amendment Act 2012 insertion of s 29A(4)
24 Medical Amendment Act 2012 insertion of s 29A(6) & s 29A(7)
25 Medical Amendment Act 2012 substitution of s 30(5)
26 Medical Amendment Act 2012 deletion of s 31(2)
27 Medical Amendment Act 2012 insertion of s 29A(11)
3. The Impact of the Reformation on MMC Medical Disciplinary
Among the purpose intended for the amendment was to strengthen the disciplinary machinery of the MMC which oversees the medical practitioners. Interestingly, the changes introduced seemed like a move to relegate the task of screening and fact-finding allegations (complaints) against medical practitioners from the Council to the newly formed Disciplinary Panel. This relieves the administrative burden of the disciplinary proceedings allowing the Council to focus and attend to other pressing matters. Despite the relegation of the Council’s role, the disciplinary jurisdiction of the Council remains unchallenged. The Council still retains as the ultimate decision-maker made evident by its role to determine complaints requiring the attention of the Disciplinary Board as well as affirming or overturning the findings of the Board. Theoretically, the idea of a dedicated disciplinary panel with fixed members having ample time to attend and focus on complaints (allegations) received instead of solely relying on the Council alone sits better to ensure disciplinary proceedings are smoothly running. The move to include non-medical individuals within the Panel and the Board is a step in the right direction. This ensures transparency and reduces the biasness of the proceedings. The move comes as a pleasant surprise considering how the medical fraternity has been reserved and impregnable to outsiders all these years.
The new disciplinary proceedings which came into force in 2017 have received mixed reviews from the medical fraternity, lawyers, and medical indemnifier agencies alike. Some have voiced concern over the undesirable implication arising from the introduction of the reform.28 Undeniably that the amendment solidified further the Council’s position as the disciplinarian for medical practitioners which was originally intended all along. However, there are unintentional ramifications from the changes introduced that may not align well with the principle of Natural Justice. This includes the introduction of Interim Orders which could easily suspend or imposed restrictions on practicing medical practitioners even before their disciplinary proceedings can be concluded. Considering the impact of Interim Orders on the livelihood of practicing doctors, the absence of a preliminary hearing to ascertain the necessity of such an order is rather worrying. Though understandably, the suggested reform was done with the public interest in mind, the need to strike a balance between protecting the public and respecting the rights to livelihood as outlined by Article 5 of the Federal Constitution is vital.
Such a drastic move is capable of jeopardizing one’s basic rights.29 The necessity of such a move is in question considering MMC records an average of fewer than twenty (20) disciplinary cases per year. Descriptive forewarning on situations that may incriminate one to an Interim Order should be made public at the very least.
The move to allow the Preliminary Investigation Committee (PIC) to advise the Council to appoint any one of the Panel members who are not related to the case to pursue on-behalf in instances complainants decide to withdraw their complaints or became uncontactable given there are strong facts supporting the said allegation should be deemed as a legal error. The introduction of such regulation neither serves any specific purpose, nor it will help with ensuring a smother disciplinary proceeding. The absence of a complainant, either through withdrawal of complaint or complainant becomes uncontactable does not dissolve the fact that an event (offence) had taken place. The determination (continuation) of a disciplinary proceeding should not solely be dependent on the physical presence of a complainant. The
28 Ganesan GK, 'Should Doctors’ Disciplinary Proceedings Be Simplified? - GK Legal' (GK Legal, 2019)
<https://www.gkg.legal/should-disciplinary-proceedings-against-doctors-be-simplified/> accessed 24 February 2021.
29 Malaysian Federal Constitution, Article 5
move of having a member of the disciplinary panel (despite being unrelated to the case) stepping in on behalf of the shoes of a complainant poses a serious threat to natural justice.
The new regulation also brought about the practice of tacit admission. A tacit admission, a form of legal approach embraced by the legal scene, is made when a person remains silent or makes an equivocal response to an accusation that the person would ordinarily be expected to deny.30 As stipulated within regulation 48(2), the failure to put in defence may result in a medical practitioner being found guilty by the Disciplinary Board and action being taken. In general theory, a tacit admission relies solely on the intuitive nature of human behaviour. Some psychoanalysts have cast doubts on silent admission as guilt manifested may be in the form of a general sense of guilt or guilt of other crimes and not necessarily towards the charged crime.31 Therefore, it is said that such admission should be carefully threaded and should always be dealt with caution.32 At the same time, the verdict of guilt should look at the evidence and not be based on mere tacit admission alone. Such an approach is not the usual practice (legal) in the United Kingdom.33 On the contrary, one of the privileges adopted by common law is known as the privilege against self-incrimination, whereby any person cannot be compelled to answer any questions that may incriminate himself.34 However, it is debateable that such privilege is limited to witnesses and not the accused. Some believe that tacit admission should not be practiced as Malaysia’s legal system adopts Common Law.35
Besides analysing through the theoretical point of principles of law, it is also pertinent to address the impact of reformation by looking at procedural efficiency. Some quartets have expressed concern that the introduction of the Disciplinary Panel with the addition of new procedures resulted in a more complicated disciplinary procedure and becomes more of a hindrance in the attempt on expediting the entire disciplinary process. However, determining the efficacy and practicability can only be measured given the data on the number of complaints and disciplinary proceedings that have convened. To date, there is still no written judgment and report disciplinary cases published under the new disciplinary proceedings. Hence, the author is unable to conclude whether the reformation introduced helps to wrap up disciplinary proceedings much faster compared to what has been practiced prior. It is something that could be further looked into in future studies.
4. Conclusion
The overall reformation of the disciplinary proceedings that have been introduced echoes the purpose of the amendment in solidifying the Malaysia Medical Council (MMC) as the statutory body that is responsible for the discipline and conduct of the medical profession in Malaysia.
However, revision of the newly revamped disciplinary proceeding may need to be looked into,
30 Donald P. Barrett, 'Evidence: Admissibility of Accusatory Statements as Adoptive Admissions When Defendant Is Under Arrest' (1947) 35 California Law Review.
31 'Tacit Criminal Admissions' (Scholarship.law.upenn.edu,)
<https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=6481&context=penn_law_review> accessed 3 September 2022.
32 Ibid
33 Ibid
34 Mohd Akram Shair Mohamad and Abdul Rani Kamarudin, 'The Common Law Privilege Against Self- Incrimination: Has It Been Abolished in Malaysia?' (Ijbel.com, 2016) <http://ijbel.com/wp- content/uploads/2016/05/K9_47.pdf> accessed 3 September 2022.
35 Ganesan GK, 'Should Doctors’ Disciplinary Proceedings Be Simplified? - GK Legal' (GK Legal, 2019)
<https://www.gkg.legal/should-disciplinary-proceedings-against-doctors-be-simplified/> accessed 24 February 2021.
especially in relation to the execution of an Interim Order, the Conflicting role of the Disciplinary Panel, and the practice of tacit admission, all to ensure the acts and practice are in line with the Rule of Natural Justice to protect the rights of not only the complainant but the medical practitioner as well be proposed later after an in-depth study has been made addressing all the relevant issues mentioned therein.
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