MMC fails to prevent Court of Appeal from hearing disciplinary appeal

The Court of Appeal is set to hear novel issues concerning its jurisdiction in an appeal originating from disciplinary proceedings conducted by the Malaysian Medical Council.

PETALING JAYA: The Malaysian Medical Council (MMC) has failed in its bid to stop a decision it made at a disciplinary hearing from being heard by the Court of Appeal.

In a unanimous decision, a three-member appeals court panel dismissed the motion filed by the healthcare regulator seeking to strike out an appeal without prejudice.

The court also set a date in November to hear an appeal brought by a lay person seeking to challenge MMC’s dismissal of his complaint.

It agreed to hear several issues, including one relating to the now-repealed Section 31(2) of the Medical Act 1971.

The provision had stipulated that a decision of the High Court in respect of any appeal from a disciplinary order made by MMC is final. It was removed via a 2012 amendment to the Act.

The court also agreed to look at the effect of a transitional clause contained in the amending Act which came into effect on July 1, 2017, five years after the changes were passed by Parliament.

Under Section 42(5) of the amending Act, any disciplinary offence alleged to have been committed by a medical practitioner before the amendments came into effect is to be dealt with in accordance with the provisions of the pre-amended Act.

According to court documents, the complainant first lodged a report with MMC on behalf of a patient in 2016, accusing a doctor of misconduct while treating his late friend who had been warded at a private hospital in Kuala Lumpur.

Following a full investigation, MMC charged the doctor with three counts of gross professional misconduct. The doctor was cleared at the final hearing of the complaint.

The complainant’s appeal to the Kuala Lumpur High Court was dismissed by Justice Amarjeet Singh last year.

In his decision, Amarjeet ruled that the complainant was not an “aggrieved” person within the meaning of Section 31(1) of the Medical Act 1971.

“There was no order made against the complainant in the exercise of the disciplinary jurisdiction of the council. This is the criteria to be an aggrieved person under subsection 31(1) of the Act.

“The disciplinary jurisdiction is only against persons registered under the Act. The appeal is therefore not competent and is accordingly dismissed,” Amerjeet said in his judgment late last year.

Early this year, the complainant appealed the High Court’s decision, saying the Court of Appeal should revisit the repealed Section 31(2) to see if it impinges on Article 121(1B) of the Federal Constitution.

Under Article 121(1B) of the Federal Constitution, the jurisdiction of the Court of Appeal is to determine appeals from the decisions of the High Court in relation to civil and criminal cases as well as any other jurisdiction conferred by federal law.

“The correctness of this decision has to be reconsidered by the Court of Appeal. It can only be decided if full-blown arguments are made by the parties on the interpretation of Section 31(1),” the complainant said.

The complainant also wants the court to decide whether MMC’s failure to allow him to cross-examine the doctor at the disciplinary hearing was contrary to the principles of natural justice.