Court dismisses MMC’s objection to hear appeal against disciplinary decision

Medical practitioner must face the courts without protection of the MMC

Dr Tikfu Gee ready to face the courts. A flood of other cases will follow.

Edited by Murray Hunter

This is a major chance for victims of of medical malpractice to finally have the opportunity to face justice.

A landmark decision against the tyranny of the MMC against victims.

The Court of Appeal has rejected an attempt by the Malaysian Medical Council (MMC) to stop the health regulator's disciplinary regime being challenged in court.

A complaint was lodged with the MMC on behalf of a patient in 2016 against a doctor accusing him of misconduct while treating his late friend when he was warded at a private hospital in Kuala Lumpur.

The doctor, Tikfu Gee from Prince Court Medical Centre, was charged by the MMC with three counts of gross professional misconduct following a full investigation but cleared at the final hearing of the complaint.

Last year, Kuala Lumpur High Court Judge Amarjeet Singh had dismissed an appeal by the original complainant asking the High Court to overturn the decision by the MMC.

In his decision, Amarjeet had ruled that the complainant was not an aggrieved party under Section 31(1) of the Medical Act 1971 as he is not a registered medical practitioner at MMC and therefore had no right to appeal the MMC decision to dismiss the charges against the doctor.

“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,” he said in his judgement late last year.

The decision ruled out any appeals of MMC disciplinary decisions except by doctors punished by the health regulator.

Early this year, the complainant appealed this decision, saying that the Court of Appeal should revisit the repealed Section 31(2) of the Medical Act 1971, which states that the decision of the High Court is final, impinges on Article 121(1B) of the Federal Constitution.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 the civil or criminal cases and any other

jurisdiction given by or under the 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 appellant said.

He is also asking the court to decide if the failure MMC to allow him to cross-examine the doctor was contrary to the principles of natural justice and also in breach of Rules 5.7(j) and 5.7 (k) of the court standing orders.

In an unanimous decision, the three-member panel dismissed the MMC’s motion to strike out the appeal without prejudice and set a date in November for the hearing.

It allowed the appellant’s request for the court to hear issues related to the powers of Section 31 (2) of the Medical Act 1971 and Section 42 (5) of the act which was amended in 2012 during the substantive hearing of the appeal.

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