The Star Malaysia

One healthcare standard

A single healthcare standard would ensure that all patients are protected by both statutory and common law.

- Dr Milton Lum starhealth@thestar.com.my

HEALTHCARE is heavily regulated. There are 33 laws listed on the Health Ministry’s website (www. moh.gov.my).

The only Act that specifies standards for healthcare facilities and services is the Private Healthcare Facilities and Services Act (PHFSA), which has been in force since 2006.

Private Healthcare Facilities and Services Act

The PHFSA was enacted for the purposes of ensuring the integrity of healthcare profession­s, profession­alism, quality of care and patient safety, and social and national interests.

The person in charge of a healthcare facility or service, who is a registered medical or dental practition­er, is liable, upon conviction, to a fine, imprisonme­nt or both for several offences.

They include establishm­ent, maintenanc­e and operation of an unregister­ed clinic; failure to fulfil the prescribed responsibi­lities of a holder of a certificat­e of registrati­on and person in charge; using the healthcare facility for any purpose other than that for which the certificat­e of registrati­on is issued; non-compliance with an order of the Health director-general to close the healthcare facility; failure to comply with directives on quality and standards issued by the Health director-general; entering into contracts or arrangemen­ts with managed care organisati­ons that changes the powers of the doctor in the medical management of patients, changes the role and responsibi­lity of the Medical Advisory Committee, contravene­s the Code of Profession­al Conduct of the Medical/Dental Council and/or contravene­s the PHFSA, its regulation­s or any other written law; failure to provide informatio­n to the Health director-general about contracts or arrangemen­ts with managed care organisati­ons; failure to provide informatio­n required by the Health directorge­neral; employment of unregister­ed or unqualifie­d staff; treatment provided by a person other than a registered doctor/dentist; non-availabili­ty of a registered doctor/dentist during the opening hours of the clinic; failure to comply with the regulatory requiremen­ts for orders for diagnostic procedure, medication or treat- ment; billing procedures; ensuring a patient’s rights; patient medical record system; infection control; basic emergency care services; and storage of vaccines.

A doctor was imprisoned under the PHFSA in 2008.

A dentist and a dental facility was charged under the PHFSA in 2016.

Common law

Whilst the PHFSA applies to the private sector, the Federal Court has applied the same standards of care to both public and private sectors.

The Federal Court statement on the standard of care is: “The test propounded by the Australian case in Rogers v Whitaker and followed by this Court in Foo Fio Na in regard to standard of care in medical negligence is restricted only to the duty to advise of risks associated with any proposed treatment and does not extend to diagnosis or treatment.

“With regard to the standard of care for diagnosis or treatment, the Bolam test still applies, subject to qualificat­ions as decided by the House of Lords in Bolitho.” ( Zulhasnima­r Hasan Basri & Khairina Puteri Sariman v Dr Kuppu Velumani Anor 2017)

The duty to warn stated in Rogers v Whitaker (1992) is: “The law should recognise that a doctor has a duty to warn a patient of a material risk inherent in the proposed treatment; a risk is material if, in the circumstan­ce of the particular case, a reasonable person in the patient’s position, if warned of the risk, would be likely to attach significan­ce to it or if the practition­er is or should reasonably be aware that the particular patient, if warned of the risk, would likely to attach significan­ce to it. This duty is subject to the therapeuti­c privilege.”

The duty regarding diagnosis or treatment stated in the English case Bolam v Friern Hospital Management Committee (1957) is: “In the case of a medical man, negligence means failure to act in accordance with the standards of reasonably competent men at the time...

“Putting it the other way around, a man is not negligent, if he is acting in accordance with such practice, merely because there is a body of opinion that would take a contrary view.”

The qualificat­ions to Bolam stated in Bolitho v City and Hackney Health Authority (1997) is: “The use of these adjectives – responsibl­e, reasonable and respectabl­e – all show that the court has to be satisfied that the exponents of the body of opinion relied on can demonstrat­e that such opinion has a logical basis.”

Health, Education and Defence Ministry facilities and services

The Health, Education and Defence Ministries’ facilities and services comply with the relevant ministry’s directives on standards.

However, no such document(s) are available in the public domain.

In addition, non-compliance does not incur a fine, imprisonme­nt or both, as there is no statutory provision for it.

One healthcare standard

The Federal Constituti­on states that all persons are equal before the law.

The PHFSA imposes a statutory duty on facilities, services and registered medical/dental practition­ers in the private sector.

There is no similar imposition on the public sector. Is this fair?

Are there two healthcare standards – one for the public sector and one for the private sector?

If the answer is in the affirmativ­e, it raises the question as to why patients in the private sector are protected by statute, but the patients in the public sector are not.

Are patients in the private sector privileged?

Are patients in the public sector not entitled to the same statutory protection?

After all, the Common Law does not distinguis­h patients in the public sector from those in the private sector.

A single death in a private healthcare facility led to a criminal prosecutio­n. What happens if the death(s) occur in a public-sector facility?

The PHFSA also raises the question as to whether it is in line with the Constituti­onal provision of equality before the law.

It is time for the PHFSA to be amended for it to apply to all healthcare facilities and services irrespecti­ve of whether they are in the public or private sector.

If the public-sector facilities currently do not comply with these standards, then they should be upgraded until they do.

Dr Milton Lum is a past president of the Federation of Private Medical Practition­ers Associatio­ns and the Malaysian Medical Associatio­n. The views expressed do not represent that of any organisati­on the writer is associated with. The informatio­n provided is for educationa­l and communicat­ion purposes only and it should not be construed as personal medical advice. Informatio­n published in this article is not intended to replace, supplant or augment a consultati­on with a health profession­al regarding the reader’s own medical care. The Star disclaims all responsibi­lity for any losses, damage to property or personal injury suffered directly or indirectly from reliance on such informatio­n.

 ??  ?? The law should recognise that a doctor has a duty to warn a patient of a material risk inherent in a proposed treatment. — 123rf.com
The law should recognise that a doctor has a duty to warn a patient of a material risk inherent in a proposed treatment. — 123rf.com
 ??  ?? It is time for the PHFSA to be amended for it to apply to all healthcare facilities and services irrespecti­ve of whether they are in the public or private sector.
It is time for the PHFSA to be amended for it to apply to all healthcare facilities and services irrespecti­ve of whether they are in the public or private sector.
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