KUALA LUMPUR, August 15 — Four graduates with the FRCS Edinburgh in Cardiothoracic Surgery qualification are not dropping their lawsuit against the Malaysian Medical Council (MMC), despite parliamentary passage of the Medical (Amendment) Bill 2024.
Instead, the judicial review applicants – Dr Nur Aziah Ismail, Dr Syed Nasir Syed Hassan, Dr Chong Kee Soon, and Dr Lok Yuh Ing – merely requested the High Court here to vacate its instruction for them to file an affidavit-in-reply by tomorrow.
The applicants noted that the 2024 Medical amendment bill has removed obstacles – as cited by MMC – to their registration as cardiothoracic surgeons on the National Specialist Register (NSR), such as the amended Section 14B and the listing of the Fellowship of the Royal College of Surgeons of Edinburgh in Cardiothoracic Surgery in a new Fourth Schedule containing the List of Registrable Specialist Qualifications.
They cited the new Section 14B(1)(b) that entitles a person to be registered as a specialist under the Medical Act if the person “holds any of the specialist qualifications” in the Fourth Schedule.
“Nonetheless, it is expected that time is needed for the Medical bill to complete the legislative process and for the respondent to subsequently register the applicants as cardiothoracic surgery specialists on the National Specialist Register,” the applicants’ counsel from Steven Thiru & Sudhar Partnership said in an August 5 letter to the High Court.
“Therefore, we request for the filing instruction to be vacated to save costs and time for both parties, considering that the subject of the judicial review (which is the registration of applicants as cardiothoracic surgery specialists) will highly likely be resolved after the conclusion of the legislative process, and after the Medical bill becomes law.”
In an August 6 letter to the High Court, MMC’s lawyers from Kanesh Sundrum & Co. said they had no objections to the applicants’ request.
“After the bill concludes its legislative process and becomes law, the issue of the applicants’ registration as cardiothoracic surgery specialists will highly likely need to be handled under the amended Medical Act,” said MMC’s counsel.
“Therefore, the issue of the registration of the applicants will become academic.”
Case management via e-review has been set for August 21.
The Dewan Negara passed the 2024 Medical amendment bill last July 29, following earlier passage by the Dewan Rakyat, legalising the parallel pathway for medical specialty training conducted by local specialist societies and the Ministry of Health (MOH), such as the cardiothoracic surgery parallel pathway programme undertaken by the four judicial review applicants.
The bill decouples the Malaysian Qualifications Agency (MQA) from the Medical Act, concentrating sole power in MMC to recognise specialist qualifications, training institutions, and training programmes — without providing for a new independent and external entity to replace MQA.
The 2024 amendment bill contains several “saving and transitional” clauses to register specialists and “specialised training” between July 1, 2017 (when the 2012 amendment came into force) and the date of coming into operation of the 2024 amendment.
Now that the Medical amendment bill has passed Parliament, it is awaiting royal assent and gazettement into an Act. Section 1(2) of the bill empowers the health minister to choose when to operationalise the Act, as well as to appoint different dates for the enforcement of different provisions.
There is one instance of a law under the MOH that was never enforced – the Telemedicine Act 1997.
In a more recent example, the Control of Smoking Products for Public Health Act 2024 (Act 852) was gazetted last February 2, but it is still not yet in force six months later, as Health Minister Dzulkefly Ahmad hasn’t prescribed regulations under the tobacco and vape control law.
Dzulkefly told reporters recently that the MOH “hopes” to be able to enforce Act 852 by year end, which would be one whole year since the anti-smoking bill was passed by the Dewan Negara on December 14, 2023.
In the case of the amended Medical Act, the health minister can decide to operationalise the saving and transitional clauses under Section 11 – upon gazettement of the Act – to enable the automatic registration of the four FRCS Edinburgh cardiothoracic surgery graduates on the NSR, without waiting to prescribe regulations. This would then render their litigation academic.
It would also be a rare instance of the government acquiescing to litigants even before the court makes a decision. MMC, which regulates the medical profession, is headed by the Health director-general.
Besides the cardiothoracic surgery parallel pathway pioneer graduates with FRCS Edinburgh, separate judicial review applications were filed over MMC’s rejection of NSR registration applications by an FRCS Ireland in Neurosurgery graduate and six Universiti Sains Malaysia (USM) graduates with Master of Pathology (Medical Genetics).
Like FRCS Edinburgh in Cardiothoracic Surgery, FRCS Ireland in Neurosurgery and USM’s Master of Pathology (Medical Genetics) are also listed on the Fourth Schedule in the 2024 Medical amendment bill.
None of these three qualifications are on MMC’s List of Recognised Postgraduate Qualifications on its website.
Dzulkefly has never explained how specialist qualifications – including those not on MMC’s existing list – were decided for entry into the Fourth Schedule in the 2024 Medical amendment bill.
FRCS Ireland neurosurgery graduate Dr Gabriel Lu Yeow Yuen and the six USM graduates – Dr Ruzi Hamimi Razali, Dr Rose Adzrianee Adnan, Dr Fatimah Azman, Dr Foong Eva, Dr Cheng Yi-Ting, and Dr Roshaidie Abdul Rashid – have similarly not informed the High Court about dropping their lawsuits against MMC, following parliamentary passage of the 2024 Medical amendment bill.
The last court document submitted by Dr Lu was an affidavit-in-reply filed last July 31, two days after the Senate passed the bill. Case management via e-review has been set for September 12.
In the USM graduates’ case, the most recent court document submitted was a June 13 letter by MMC’s counsel to request postponement of a June 20 hearing, in light of the Medical amendment bill. MMC said the applicants had no objections.
Case management via e-review has been set for August 19, while a hearing date was set for January 20, 2025 before Justice Ahmad Kamal Md. Shahid in the High Court.
Under the 2024 Medical amendment bill, power in determining recognised or registrable specialist qualifications was transferred from MMC to the health minister, as the minister is empowered to amend the Fourth Schedule and Fifth Schedule (List of Subspecialty) by a gazetted order “after consulting” the Council.
The minister’s power to amend a separate list, the Poisons List, involving another statutory body, the Poisons Board, is legislated under the Poisons Act 1952 with similar language to the 2024 Medical amendment bill. Under Section 6 of the Poisons Act, the minister has the power to amend the Poisons List “after consultation” with the Poisons Board.
During an ongoing judicial review filed by the Malaysian Council for Tobacco Control (MCTC) and two other groups against the removal of liquid nicotine from the list of controlled substances under the Poisons Act on March 31, 2023, then-Health Minister Dr Zaliha Mustafa pointed out that “consultation” was not akin to a “requirement to obtain approval” from the Poisons Board.
Dr Zaliha had vetoed unanimous rejection from the Poisons Board in its consultation session on March 29 last year to the proposed liquid nicotine delisting and went ahead with the exemption order two days later.
Nearly two dozen medical groups and specialist doctors’ fraternities expressed support for the 2024 Medical amendment bill.
