Dr Harpreet Sarna, Medicolegal Adviser and Team Leader for Asia at Medical Protection, and Raja Eileen Soraya, Partner at Raja, Darryl and Loh solicitiors, reflect on what the new disciplinary process means for practising doctors
In 1 July 2017, the Medical (Amendment) Act 2012 and Medical Regulations 2017 came into force. Some have viewed this development as strengthening the Malaysian Medical Council’s (MMC) independence and ability to monitor the standards of practice and ethics among doctors.
“The corporatisation of the MMC is to emulate the General Medical Council (GMC) in the UK, where it functions not only to set and monitor standards of the medical profession, but also the competency of doctors registered with it,” said Dr Noor Hisham Abdullah, the Director General of Health for the Ministry of Health.
What has changed?
Previously, for a doctor to be found guilty of an ethical breach by the MMC, the doctor must have committed an act described as “infamous conduct in a professional respect”. This description has now been replaced by “serious professional misconduct as stipulated in the Code of Professional Conduct and any other guidelines and directives issued by the Council”. Although the term “serious professional misconduct” is not defined, it appears to be confined to breaches of the Code, guidelines and directives of the Council. Doctors must therefore ensure they keep up-to-date with any revisions to the Code and all guidelines and directives issued by the Council.
The role of the Preliminary Investigation Committee (PIC) has also been dramatically changed. It now plays an important role in sorting through complaints and making recommendations for the complaint to be dealt with immediately.
When a complaint is received by the Council and passed to the PIC, the PIC may take two courses of action. The PIC can:
1. recommend to the Council to dismiss the complaint
2. share the complaint with the doctor and require a written response within 30 days.
Upon considering the reply and clarification, if any, by the doctor, the Council may, upon considering the recommendation of the PIC, either:
1. dismiss the complaint
2. forward the complaint to the Disciplinary Board for an inquiry.
The Board will then invite the complainant and doctor to an inquiry, at which the doctor is entitled to legal representation. During the inquiry, the Board can now refer the doctor to the Fitness to Practise Committee if there are concerns about the doctor’s professional incompetence and/or physical or mental disability.
Once an inquiry is completed, the Board may recommend that the Council dismisses the complaint or find the doctor guilty of the charges, at which point it should then invite a plea in mitigation, before recommending a punishment to the Council. Ultimately, the Board only has powers to recommend and the decision lies with the Council.
The Council’s powers of punishment have also been significantly broadened. The powers available to the Council now include:
- avenues for rehabilitative and preventive measures such as placing conditions on practice (for example, seek medical treatment or undertake training)
- the suspension from practice (for a period felt necessary)
- the suspension of any orders made subject to conditions (for up to two years)
- the imposition of a fine
- an order of costs.
Unlike the powers of the UK’s GMC and the Singapore Medical Council, the Council in Malaysia is not subject to any statutory limit on the amount of the fine which it can impose. Furthermore, regulation states that the Council have the right to publish in the media the conclusion of any inquiry. Previously, any punishment would generally only be published on the Council’s website.
Another important development concerns the Board’s power to issue an Interim Order, if it is felt to be necessary for the protection of the public, or in the interest of the public or doctor. This Order can be a suspension or restriction, both of up to 12 months with powers of extension. If an order is made, an appeal against this interim order may be lodged with the Minister of Health. The Act itself states that the Minister’s decision shall be final and binding.
More support from medical protection
Given our breadth of international experience, Medical Protection is poised to effectively assist its members to deal with this new process. It is more important than ever to inform us of any notification of a complaint lodged with the MMC.
It is possible the investigations will now take longer to complete. Medical Protection is aware of the burden of these investigations and the potential impact on a doctor’s health. Our members will continue to have access to highly specialised and experienced medicolegal support and, should you need it, access to a confidential and independent counselling service.
For more information on the Medical (Amendment) Act 2012 and Medical Regulations 2017, visit mmc.gov.my