The Amendments In Brief Law Constitutional Administrative Essay

Published Date: 02 Nov 2017

Introduction

The Medical Act 1971, inter alia, establishes the Malaysian Medical Council ("MMC"). It empowers it with disciplinary jurisdiction over medical practitioners registered under the Act.

The MMC will investigate into complaints and information received and disciplinary inquiries will be held if there is evidence to substantiate the allegations. Upon finding a medical practitioner guilty of the complaint and after hearing his plea in mitigation, the MMC will impose punishment, which might include a reprimand, suspension from practice, or deregistration which would disentitle the said medical practitioner from practicing medicine in Malaysia.

In exercising its disciplinary function, the MMC is guided by its Code of Professional Conduct and other guidelines that have been issued.

The Code of Professional Conduct has four main principles:-

Neglect or disregard of professional responsibilities; 

Abuse of professional privileges and skills; 

Conduct derogatory to the reputation of the medical profession; and 

Advertising, canvassing and related professional offences.

The MMC also makes finding of disciplinary misconduct based on ethical guidelines. The ethical guidelines cover a variety of issues including brain death, clinical trials and biomedical research, medical genetics and genetic services, organ transplantation, stem cell research and stem cell therapy.

Of late, the medical standards in the country have come under scrutiny, as claims of poorly-qualified housemen, medical education is not up to the mark and overcrowded hospitals flood the media.

In a bid to address concerns over declining medical standards in Malaysia, the Medical (Amendment) Act 2012 has been passed in Parliament. It received the Royal Assent on 5 September 2012 and was published in the Malaysian Gazette on 20 September 2012. However, it has yet to come into force.

The aim of amending the Medical Act 1971 is that when the Act was first tabled, there were only 2,436 registered medical practitioners. Now there are about 35,000 registered medical practitioners. As such, there is a great necessity to strengthen and regulate the medical profession. [1] 

The Amended Act contains 42 clauses, among others, to clarify in detail the powers of MMC including management of human resources, financial resources and establishment of the Malaysian Medical Council Fund.

The Amendments in Brief

The first facet of the amendment is on the composition of the Malaysian Medical Council which remains at 33 members. However at the current time it has an elected minority whereas when the Medical Act was first enacted in 1971, it was an elected majority. Under Section 3A subsection (1) (e), (f) and (g), of the amendments to the Medical Act, the Council will have 17 elected members and 16 nominated members so restoring the elected majority albeit by one.

The second facet under Section 4 of the amendments is to provide the Council to operate as a corporate body. Although the Medical Act 1971 states that the Council is a corporate body, there are no legal provisions for the Council to carry out its functions as a corporate body.

It depends on the Ministry of Health for its finances and staff. Under the amendments, the Council can employ its own staff, hire and fire and there are also provisions for Malaysian Medical Council Fund for its finances. Currently the MMC is dependent on the Ministry of Health. All its finances come from the Ministry of Health, all its staff reimbursed by Ministry of Health, all monies collected by MMC for registration and Annual Practicing Certificate goes to the consolidated fund. With the amendments to the Act, the MMC can function more independently – it can hire and fire its own staff. It can manage its own finances.

The third facet under Sections 14A, 14B and 14C of the amendment is to provide changes in registration. There is an establishment of a Specialists Register whereas there was none in the 1971 Act.

There are also provisions under Section 13 of the Amended Act which liberalised the granting of Temporary Practicing Certificates for foreigners who want to come here for training and educational purposes.

There is also provision under Section 16 of the Amended Act for each practitioner to have indemnity coverage before they are issued with an Annual Practicing Certificate.

Under Section 25 of the Amended Act a new Section 29A has been inserted after Section 29 of the 1971 Act. This section entails changes in the disciplinary functions of the Council. The process is streamlined and there are certain timelines that have to be adhered to upon receipt of a complaint or information by the Council. This provision also provided for an interim order to be instituted in the case of a doctor before a Disciplinary Board and who is considered a risk to the health of the public.

There is also provision under Section 26 of the Amended Act for rehabilitation for doctors who have been found guilty of offences. Under the 1971 Act, the doctor can be reprimanded, suspended or deregistered. Under the amendments to the Act, there are provisions for the doctor to seek medical treatment, provisions for the doctor to undergo educational courses or programmes specified by the Council. There is also provision for the doctor to report on his medical practice to such Medical Practitioners as may be specified by the Council. There is also provision for the Council impose any other conditions relating to the doctor’s practice as it deems appropriate.

It is submitted that the 1971 Act only provides for the Medical Council to register doctors and to carry out its disciplinary function. These functions will put the Council in line with changes in other medical regulatory authorities worldwide so that it will be more in keeping with the times and appropriate for the circumstances.

Whilst we celebrate the passage of some progressive amendments to the Medical Act 1971, which was long overdue, critics are questioning whether the amendments have negative implications for the medical profession and medical education in Malaysia.

In this paper I will be highlighting three significant changes to the Medical Act 1971 and the potential implications of these changes.

A. RECOGNITION OF MEDICAL DEGREES

The first significant change is the amendment under section 7. Under the new amendments, Section 7 of the Act, a recognised medical training institution is recognised and accredited by the MMC based on the recommendation of the Joint Technical Committee ("JTC") which is set up under the Qualifying Agency Act.

There are some criticisms to the amendments to the Medical Act 1971 that these amendments have actually weakened the MMC. According to Dr. Jeyakumar Devaraj, [2] the power of the MMC to recognise and accredit medical training colleges has been taken away and placed under the purview of the Ministry of Higher Education. He says that MMC’s function has been reduced to a clerical role to merely recording and documenting the decision to recognise a medical school – decision being made elsewhere. In my opinion this is the most important change, namely the dilution of the role of the MMC (to a clerical role) in recognising medical qualifications. This is because it has serious ramifications on the standard of health care in Malaysia.

At the outset it must be noted that the MMC made its proposals to the Ministry of Health and the Malaysian Government as to what it wanted to amend in the Medical Act. The MMC sets the professional standards. It is submitted that this is as it should be because no one else apart from its profession can set its own standards. The Act provides that doctors report to the Ministry of Health with regard to their functions.

The Medical Act rests the recognition of the medical degrees with the MMC. The Medical Act was enacted in 1971. The Malaysian Qualification Agency Act was enacted in 2007. It is responsible for the implementation of the Malaysian Qualifications Framework which consists of qualifications programs and higher education providers based on a set of criteria and standards including learning outcomes and credits based on students’ academic load. As far as the JTC is concerned, this is established by the MMC as with other professions, engineering, architecture etc.

The JTC functions are to consider an application for accreditation, making recommendation whether to grant /refuse an application, make recommendation for imposing conditions entering and conducting an institutional audit and making recommendation for the revocation of accreditation. These recommendations of the JTC are then forwarded to the MMC which can either approve the granting of accreditation or refuse the granting of accreditation, in which case it has to state grounds for doing so.

It is submitted that in fact accreditation in Malaysia in whatever discipline was first started by the MMC way back in 1995. MMC invited experts from Australia and US and formulated these accreditation guidelines which were then piloted in the 3 public universities, University Malaya, University Sains Malaysia and University Kebangssan Malaysia and then applied to all medical schools, both public and private from the year 2000. [3] 

The National Accreditation Board was established for private institutions of higher learning in 1997 and the Quality Assurance Board in the Ministry of Education was established in 2002. Both these bodies were shut down with the implementation of the Malaysia Qualification Agency in 2007.

In terms of accreditation, the MMC has blazed the trail for all other disciplines in this country and in fact if we look at the guidelines for medical programs, we will find that a lot of other programs in other disciplines have been based on the same format as that of the medical program, which was first initiated by the MMC. The accreditation guidelines of the MMC have been revised over the years.

As stated earlier, professional standards have always got to be set by the profession. No one else can set those standards. The medical profession is very much associated with the Nursing Profession, for instance, cannot set for the nursing profession. It is the nurses who can set standards for their profession. If there is confusion about jurisdiction, regulating roles and setting of standards then this can only be confusing not only to the regulators but also to the regulated.

In the final analysis, in medicine, it’s the patients who will be affected at the end of the day and all of us are potential patients.

The Malaysian Qualification Agency Act is very clear that accreditation of medical schools come under the purview of the MMC. The operating word in section 51 of the Act states that the JTC shall be established by the MMC. "SHALL" means mandatory establishment by the MMC. It does not state that it is established by anyone else.

One of the issues that has been highlighted by law makers is the problem of regulating medical education, in that it is increasingly being provided by the private sector and this reflects the change in the medical education in the country.

There are 33 colleges in Malaysia providing medical education in Malaysia and out of these 33 colleges, 22 of them are private colleges. It is submitted that whether this is seen as a positive or negative trend and what are the potential issues that can come out of this trend depends on the private medical colleges. If they play their role and take cognizance of their social responsibilities and not just be driven by economics, then it is submitted that they have a positive role to play. A lot of private universities in the developed economies contributed enormously to the medicine in general and to specific disciplines in particular. But if private colleges are driven mainly by economics, then the omens are not good for everyone.

It can be seen that the statistics given about the number of medical schools in Malaysia compared with UK are revealing and unearth some important issues:

The private medical schools which have mushroomed – are some of them just churning out medical graduates for money?

Clearly, the evidence seems to support this hypothesis:-

The Lincoln University College and its "business" arrangement with an unrecognised Ukrainian medical school.

The 25% pass rate of the graduates at the qualifying exam.

The sharp increase in housemen and the ability of our hospitals to give them adequate training.

The aim of the liberalising recognition of medical degrees seems to be to redress the doctor shortage in the shortest possible time. But at what cost? The result is a "dumbing down" of the profession, with students who are clearly not qualified ending up as doctors. This does not help at all in the meeting the Government’s objective of promoting medical tourism.

Malaysia which some 30 years ago prided itself in having a tertiary education system on par with the best, is now way down in the pecking order, churning out graduates of poor quality. Sadly, the medical profession has and will continue to suffer the same fate unless the standards for recognition are tightened.

It is submitted that the MMC should be reinstated as the sole body deciding on recognition of medical schools. The JTC which comes under the Qualifying Agency Act 2007 will now make the recommendation for the MMC to approve.

(NOTE: t is stated on page 6 of the draft, that JTC shall be established by MMC. My worry [or confusion?] that is on page 3 of the report on Dr Jeyakumar, it is stated that the JTC is set up under the QAA 2007)

My personal observation is the Health Minister is from Malaysian Chinese Association (MCA) and the Higher Education Minister is from UMNO. Therefore, will the MMC really have the desire, will or the political clout to over-rule the JTC’s recommendation?

As Dr Jeyakumar said the MMC’s role might be (if it not already is) reduced to the role of rubber stamp.

B.. DISCIPLINARY PROCEEDINGS

I think this is also a significant change, perhaps in my opinion, more important than the other two in my paper. MMC shall establish a different mechanism to inquire into complaint or information received against medical practitioners. The words "infamous conduct in any professional respect" is replaced by "serious professional misconduct as stipulated in the Code of Professional Conduct and any other guidelines and directives issued by the Council".

It is submitted that the appointment of a Disciplinary Board is similar to that of the legal profession. The Disciplinary Board would, in my opinion, take on the role now played by the Preliminary Investigation Committee under the Medical Regulations 1974 (Regulation 26).

What caught my eye is the power given to the Minister to confirm, reverse or vary the Disciplinary Board’s decision on appeal:-

Powers of the Health Minister in subsection 12(2) of the Medical Act 1971 :

"(2) The Minister may from time to time, after consulting the Council, add to, delete from or amend the Second Schedule by order published in the Gazette"

- The 2nd schedule is under the custodian of Medical Act and the Health Minister has all the exclusive rights in maintaining and altering the Schedule to ensure the quality of medical training institutions.

Under section 25 of the Amended Act:-

‘(11) Any registered medical practitioner who is aggrieved by the decision of the Disciplinary Board or President under this section may appeal in writing to the Minister;

(12) the Minster may confirm, vary or reverse the decision of the Disciplinary Board or President;

(13) the Minster’s decision on any appeal under subsection (11) shall be binding and final’.

Compare this with the Legal Profession Act 1976 where the appeal has to be the High Court.

"Section 26 Legal Profession Act 1976 - Appeal from the decision of Board to Judge

(1) Any person dissatisfied with any decision of the Board may apply to a Judge for a review of the decision.

(2) If the Board fails to determine any request within six weeks after it has been first submitted to it, the applicant may apply under this section as if the request had been determined adversely to him.

(3) Every application under this section shall be made by summons in chambers on the petition of the appellant if he has filed a petition, otherwise by originating summons; the Judge hearing the application may in his discretion adjourn the application into open Court.

(4) Every summons in chambers or originating summons, as the case may be, shall be supported by evidence on affidavit and shall be served together with the affidavit on the Board; such summons in chambers or originating summons shall not be heard before the expiry of twelve days after the date of service on the Board.

(5) At or before the hearing of the application the Board may submit to the Judge a confidential report on the applicant; such report shall not be filed in Court but a copy thereof shall be furnished to the applicant.

(6) A confidential report under this section shall be privileged.

(7) At the hearing the Judge may dismiss the application or make any order under this Act as he considers fair and reasonable.

(8) A Judge who is a member of the Board shall not hear any application under this section".

In my opinion, to oust the court’s jurisdiction in never a good idea, if justice is to be served with impartiality. The High Court should be the proper forum for appeal, as it would be better equipped to consider the merits of the appeal, rather than the Minister (even one acting on advice) who MAY be persuaded by extraneous considerations, not the impartial dispensing of justice.

http://www.nsr.org.my/AboutNSR.html

C. SPECIALISTS’ REGISTER

The third significant change is pertaining to the requirement of a Specialist Register under Section 12 of the amendments which inserts section 14C.

There will now be 3 parts of the Register instead of 2, which are:

Part A – provisional registration,

Part B – full registration,

Part C – specialist register. (new)

The Medical Act 1971 has no provision for registration of specialists. Under section 14 of the Medical Act 1971, medical practitioners who practise in this country have to be registered with the Malaysian Medical Council. This register is for all medical practitioners, based on their basic medical degrees, whether specialists or non-specialists.

The Ministry of Health has its own gazettement exercise for specialists working in its hospitals and healthcare facilities. This is a requirement under the General Order. Specialists have to be gazetted in order to be employed to the respective grades of service, and given appropriate remuneration. This process has worked well for the Ministry of Health. The gazettement exercise, however, is not extended to non-Ministry of Health organizations and the private sector. Different institutions may have individual processes and criteria and therefore differing standards. 

The Academy of Medicine of Malaysia (AMM) has its own Specialist Register, established in 1999, and officially launched in November 2000 by YBhg Tan Sri Dr Abu Bakar Suleiman, the then Master of the AMM and Director General of Health.

The specialist register is time-based and renewable every 5 years upon proof of continuing professional development and continuing medical education activities by individual specialists. The Specialist Register will draw from the experience of the gazettement exercise of the Ministry of Health. With Specialist Register in place, we are looking forward to having just a single specialist register for medical specialists in all sectors, including the Ministry of Health, the universities, as well as the private sector.

The Specialist Register will ensure that doctors designated as specialists are appropriately trained and fully competent to practise the expected higher level of care in the chosen specialty. With the Specialist Register in place, doctors will be able to identify specialists in the relevant specialties to whom they can refer either for a second opinion or for further management. Importantly, the Specialist Register protects the public and will help them to identify the relevant specialist doctors to whom they may wish to be referred or may wish to consult. The Specialist Register is in fact an exercise in self-regulation by the medical profession, striving to maintain and safeguard the high standards of specialist practice in the country, having the

interest and safety of the public at heart. 

Once the new Medical Act comes into force, the Malaysian Medical Council will be in a position to ensure that those admitted to the register are competent and fit to practice. The maintenance of a register of competent specialists is fundamental to the regulation of a profession. 

Without a Specialist Register, we do not know the total number of specialists, nor the number in individual specialties. This has certainly been an impediment to strategizing and planning for specialist manpower training and provision of health care services. 

In meeting the requirements of the Private Health Facilities and Services Act, private hospitals will need the Specialist Register as essential reference, as the Act requires these facilities to have a credentialing mechanism in place. With the impending implementation of National Health Financing Scheme, payment for service will be based on the qualification and skills of the practitioners. Specialist Register will be

essential here as a reference resource. 

Under the umbrella of the World Trade Organization, Malaysia will be opening its doors to foreign medical practitioners in compliance with the General Agreement on Trade in Services (GATS). It is essential to have the Specialist Register in place to ensure that only appropriately qualified and competent foreign doctors are permitted to practice their respective specialties in this country. This will safeguard the interest of the public, and ensure that standards of specialist practice are not compromised.

CONCLUSION

With regard to the Medical Act, there must not be confusion when it comes to the different roles to accreditation by the different parties. It is obvious that professional standards of education can only be set by professionals of education and it is submitted that if this be maintained and as long as the powers we understand it, we shouldn’t have any difficulty. As far as other governmental agencies, they can also have to be conversant with their roles. There should not be much conflict because in other countries where there is a accreditation agency and the Medical Council or Medical Regulatory Authority, their roles are pretty well understood and defined and everyone should confine themselves to their respective roles that they play. These roles are in fact complementary rather than diagnostic.

Medical Act 1971

Medical (Amendment) Act 2012

Legal Profession Act 1976

Medical Act Amendments: Let The Medical Profession Be The Primary Authority on Accreditation

29-Jun-12 11:26

[ Programme Segment: Current Affairs ]

Current Affairs Podcasts

Recently, the Medical Amendment Bill 2012 was passed in Parliament, which is aimed at strengthening and regulating the medical profession. However, critics are questioning whether the amendments have negative implications for the medical profession and medical education in Malaysia. 

Dr Milton Lum, past president of the Federation of Private Medical Practitioners Malaysia and former president of the Malaysian Medical Association, gives his take on the pros and cons of the amendments in the following interview. He also highlights the need for the governmental bodies overseeing the accreditation of medical education in Malaysia to be clear cut in their roles and not allow confusion to affect the standard of medical education and the  medical profession in the country.

Dr Jeyakumar Devaraj, the Member of Parliament for Sungai Siput, made the above address in Parliament on 14 June 2012

Read more: Bill to strengthen medical profession tabled - Latest - New Straits Times http://www.nst.com.my/latest/bill-to-strengthen-medical-profession-tabled-1.94160#ixzz2NoCqIE6l

For Future Doctors: MMC registration procedures under amended Medical Act 2012

January 23, 2013 by Pagalavan Letchumanan

http://malaysia-today.net/mtcolumns/newscommentaries/38686-medicine-amendment-to-allow-preferred-varsity

http://sun2surf.com/article.cfm?id=58605

http://www.medicaluniversitiesinmalaysia.com/medical-standards-need-to-be-kept-high/

http://www.medicaluniversitiesinmalaysia.com/liow-students-can-study-anywhere-after-changes-to-medical-act/

CREDIT : THE STAR

http://www.nsr.org.my/AboutNSR.html