This article is a continuation of the articles “Private Hospitals Also Liable For Medical Negligence I” and “Private Hospitals Also Liable For Medical Negligence II – Non-Delegable Duty Of Care”.
Statute And Common Law
Statutes are laws enacted after royal assent following passage by Parliament. Private health care facilities, including hospitals and clinics, are regulated by the Private Health Care Facilities and Services Act 1998 (PHFSA or Act 586) which came into force in 2006. Contravention of PHFSA will, upon conviction, lead to penalties that include fines and imprisonment.
Common law is, in layman’s parlance, judge-made law. It relies on the principle of precedent.
This means that courts are guided by previous court decisions, particularly courts that have higher authority. In Malaysia, the highest court is the Federal Court and below it, in descending order, the Court of Appeal, High Court, Sessions Court and Magistrates Court.
If there is conflict and/or inconsistency between statute law and common law, statute law always prevails.
Statutory Framework
The Federal Court (“FC”) referred to the PHFSA extensively in Siow Ching Yee vs Columbia Asia Sdn Bhd [2024]. The FC pointed out the statutory framework was a relevant consideration in Woodland and other cases.
[57] In fact, statutory framework almost always is a relevant and necessary consideration in determining the issue of non-delegable duty of care
[59] While the boundaries are not clear cut and will have to be examined on a case-by-case basis, the five Woodland features in the context of our legislative regime is the right place to start the determination of the existence and imposition of this non-delegable duty of care. Rightly so as legislative schemes determine a myriad of issues including the scope of application, interpretation and most of all, the intent of the legislation.
The FC reminded that it had examined the PHFSA in Dr Kok Choong Seng & Sunway Medical Centre vs Soo Cheng Lin [2015]
[61] Read in its entirety, we do not consider that the relevant legislation warrants the interpretation that private hospitals are mere providers of facilities and not medical treatment.
On the contrary, the legislative scheme clearly envisages that the function of private hospitals includes generally the ‘treatment and care of persons who require medical treatment or suffer from any disease’, and considers the services of medical practitioners as part of that function.
The notion that the duty of a hospital is confined only to its facilities and staff selection has long been rejected in the common law. Such a notion is also incongruent with societal expectations of private hospitals as healthcare service providers; most patients do not perceive hospitals as providers of all the utilities and backup services except medical treatment.
Adopting Lord Greene’s formulation, it is precisely medical treatment that patients expect when they knock on the door of the hospital”.
Private Hospitals Are Health Care Providers
The FC referred to the following definitions in section 2 of the PHFSA, i.e.:
[66] “Health care services” includes-
(a) Medical, dental, nursing, midwifery, allied health, pharmacy and ambulance services and any other services provided by a health care professional;
(b) Accommodation for the purpose of any service provided under this Act;
(c) Any service for the screening, diagnosis, or treatment of persons suffering from, or believed to be suffering from any disease, injury or disability of mind of body;
(d) Any service for prevention or promotive of health purposes;
(e) Any service for curing or alleviating any abnormal condition of the human body by the application of any apparatus, equipment, instrument or device or any other medical technology; or
(f) Any health-related service.
“Health care professional” includes a medical practitioner, dental practitioner, pharmacist, clinical psychologist, nurse, midwife, medical assistant, physiotherapist, occupational therapist and other allied healthcare professional and any other person involved in the giving of medical, health, dental, pharmaceutical or any other healthcare services under the jurisdiction of the Ministry of Health;
“Private hospital” means any premises, other than a Government hospital or institution, used or intended to be used for the reception, lodging, treatment and care of persons who require medical treatment or suffer from any disease or who require dental treatment that requires hospitalisation;
[67] Put simply, Act 586 applies to all health care facilities and services which are not provided by the government through public hospitals or institutions. In Vincent Manickam s/o David (suing by himself and as administrator of the estate of Catherine Jeya Sellamah, deceased) & Ors v Dr S Hari Rajah [2018] 2 MLJ 497, the Court of Appeal described private hospitals in the following terms:
[73] It is undeniable that in law, the second respondent is not a mere building or an ordinary company incorporated under the Companies Act 1965; or even a landlord; it is a health care facility where health care services regulated by and under the law, are provided to members of the public and to persons such as Catherine and the appellants. Any business arrangements that it structures to operate or best earn profits or even enable it to be a successful corporate sole, are of no relevance when it comes to the question of accountability and liability in law for the business of health care services. That core business that the second respondent proffers can only be rendered through health care professionals such as the first respondent, the medical officer and the nurses in the instant appeal. Under such circumstances, the second respondent owes a duty of care to the clients or patients with whom the second respondent accepts and agrees to provide health care. (emphasis added)
[70] All these reasonings accord with the observations of the Federal Court in Dr Kok on how Act 586 is to be read and is echoed again in this judgment; that a reading of the Act in its entirety yields an understanding of the inter-relational obligations and functions between the hospital and those who actually render treatment and care to the patients; that hospitals are and remain, providers of both the facilities for the treatment and care of patients as well as the treatment and care rendered. (emphasis added)
In short, the licencing of private hospital C, under the PHFSA, nails its averment “that their responsibility as the owners and managers of the said hospital is merely to ensure the provision of facilities and medical equipment, including nursing staff” (emphasis added)
Qualified And Experienced Staff
The FC referred to section 31 of the PHFSA which states:
s31(1) A licensee or a holder of a certificate of registration in respect of a licensed or registered health care facility or service shall –
(a) ensure that the licensed or registered private healthcare facility or service is maintained or operated by a person in charge;
(b) inspect the licensed or registered private health care facility or service in such manner and at such frequency as may be prescribed;
(c) ensure that persons employed or engaged by the licensed or registered private health care facility or service are registered under any law regulating their registration, or in the absence of any such law, hold such qualification and experience as are recognized by the Director General…(emphasis added)
The FC pointed out that:
[71]…This is amplified in regulation 13 of the Private Healthcare Facilities and Services (Private Hospitals and Other Private Healthcare Facilities) Regulations 2006 [The Regulations].
Policy Statement
The FC referred to section 35 of the PHFSA which states:
s35 A licensee of a private health care facility or service or the holder of a certificate of registration or the person in charge of a private health care facility or service shall make available, upon registration or admission, as the case may be, its policy statement with respect to the obligations of the licensee or holder of the certificate of registration to patients using the facilities or services. (emphasis added)
Emergency Treatment And Services
The FC referred to section 38 of Part XVII (Special requirements for emergency care services) of the PHFSA which states:
s38(1) Every licensed and registered private health care facility or service shall at all times be capable of instituting, and making available, essential life saving measures and implementing emergency procedures on any person requiring such treatment or services. (emphasis added)
The FC pointed out regulation 230 on Basic emergency services, which states:
r 230(1) All private health care facilities or services shall have a well-defined care system for providing basic outpatient emergency care services to any occasional emergency patient who comes or is brought to the private health care facilities or services by chance.
r 230(2) The nature and scope of such emergency care services shall be in accordance with the private health care facility or service’s capabilities.
r 230(3) All private health care facilities or services shall provide immediate emergency care services which include life-saving procedures when life, organ or limb is in jeopardy and management of emergency psychiatric conditions.
r 230(4) Assessment of a patient’s condition to determine the nature, urgency and severity of the patient’s immediate medical need and the timing and place of the patient care and treatment in a private health care facility or service shall be done by a registered nurse, registered medical assistant or registered medical practitioner and in the case of a dental service, by a registered dental practitioner. (emphasis added)
The FC also referred to regulation 231 on Additional requirements for private healthcare facilities or services providing emergency services on a regular basis, which states:
r 231(12) Provision shall be made for additional healthcare professional and other ancillary staff if the circumstances demand (emphasis added)
The FC found that as private hospital C was providing emergency services regulation on a regular basis, it was subject to regulation 231(12).
Quality Of Health Care Facilities And Aervices
The FC referred to Part XIII (sections 74- 76) of the PHFSA which states:
s74 (1) Every private healthcare facility or service shall have programmes and activities to ensure the quality and appropriateness of healthcare facilities and services provided. (emphasis added)
s74 (2) Information regarding such programmes and activities shall be furnished to the Director General as and when required by him.
s75 (1) Where the Director General is of the opinion that any prescribed requirement or any prescribed standard which applies to a private healthcare facility or service is not being observed by that facility or service, the Director General may give to the holder of the approval, licensee or the holder of a certificate of registration in respect of such facility or service such directions in writing as he thinks necessary for the observance of the requirement or standard and shall state in the directions the period within which the holder of the approval, licensee or the holder of the certificate of registration is required to comply with the directions. (emphasis added)
s75 (2) Where in the opinion of the Director General the use of any apparatus, appliance, equipment, instrument, substance or any activity in a private healthcare facility or service or the manner in which any blood, blood product, human tissue or fluid or any product of the human body, substance or sample is used, collected, handled, stored or transported, or any other activity conducted is detrimental to the health and safety of any person therein or is otherwise unsuitable for the purpose for which it is used, the Director General may, by notice, direct the holder of the approval, licensee or the holder of a certificate of registration in respect of such facility or service to stop using the apparatus, appliance, equipment, instrument or substance or to stop the activity. (emphasis added)
Advertisement
The FC referred to section 108 of the PHFSA which states:
s 108 No private healthcare facility or service or health-related facility or service shall publish any advertisement –
(a) in such a manner as to mislead the public on the type or nature of the healthcare facilities or services or health-related facilities or services provided; or
(b) which is contrary to any direction on advertisement issued by the Director General. (emphasis added)
The FC referred to private hospital C’s statements on its website to everyone. The hospital’s website statement concerned its facilities, treatment, care and procedures:
[78]…The respondent had also made the following statement to the appellant and to all persons using its healthcare facilities and services, available on its website concerning amongst others its facilities, treatment, care and procedures:
Patients benefit from advanced medical diagnostics, treatment and the personal care that only comes in facilities where the focus is on each patient. Our facilities are comprehensive so you can rest assured that we have all that you need for your treatments and procedures. State-of-the-art equipment ensures that we are up to date with medical technology and updates. To find out what we have to offer, please the list below:… (emphasis added)
Private Hospitals’ Statutory Duty Of Care
The FC summarised the private hospitals’ statutory duty of care as follows:
[77] All these provisions fortify the understanding that the hospital is and remains responsible for not just the efficacy of premises or facilities but also for the treatment and care of the patients; regardless how and who the responsibility may have been delegated to. This is the intent of the legislative scheme, to the extent that the policy of the private hospital or healthcare facility or service is required to be placed in a conspicuous place of the premises so that persons coming to the hospital or healthcare facility or service is aware of such policy. Implicit in this structure and legislative scheme is already the balance and incorporation of the elements of fairness, just and reasonableness which need not be reconsidered as an entirely separate exercise or consideration. Persons approaching, using and relying on the treatment and healthcare rendered in these facilities and services should never have to concern themselves with issues of responsibility and separate accountability as negligence and mishaps would be furthest from their minds. (emphasis added)
[79] From the reading of all these provisions, it is clear as daylight that the legislative scheme intends private hospitals such as the respondent to remain responsible for the treatment and care of the patients regardless to whom they may have employed, engaged or delegated that task or responsibility. This remains so even if the hospital is rendering emergency care services. In the case of the respondent, it renders such services on a routine basis. (emphasis added)
[82] In any case, given the extensive provisions in Act 586 and the Regulations made thereunder, it cannot be ignored that the intent of legislation is that the respondent assumes a non-delegable duty of care to the appellant and it remains liable personally for the negligence of the 2nd defendant. It makes no difference the presence of the other defendants, save that the tort of negligence must always first be proved on the facts. (emphasis added)
In short, private hospitals have a statutory duty of care.
The implications of the FC’s judgment will be discussed in a subsequent article.
Dr Milton Lum is a Past President of the Federation of Private Medical Associations, Malaysia and the Malaysian Medical Association. The views expressed do not represent that of any organisation the writer is or was associated with. No responsibility is assumed by the writer for any injury and/ or damage to persons or property in respect of anything or the consequences of anything done or omitted to be done by anyone in reliance, whether wholly or partial, upon the whole or any part of the contents of this article. If legal advice is required, the services of a legal counsel versed in medical law should be sought.
- This is the personal opinion of the writer or publication and does not necessarily represent the views of CodeBlue.
