KUALA LUMPUR, Jan 2 — Three graduates with FRCS Edinburgh in Cardiothoracic Surgery have refused to withdraw their lawsuit against the Malaysian Medical Council (MMC), as they are still not registered as specialists.
In a supplementary affidavit filed in the High Court here last November 13, Dr Chong Kee Soon rebutted MMC’s contention during case management last October 21 that the judicial review had become “academic” and ought to be discontinued, as the FRCS Edinburgh in Cardiothoracic Surgery qualification has been included in the Fourth Schedule of the Medical (Amendment) Act 2024. The Fourth Schedule is the List of Registrable Specialist Qualifications.
Dr Chong Kee Soon – one of the four judicial review (JR) applicants – wrote his affidavit on behalf of himself, Dr Syed Nasir Syed Hassan, and Dr Lok Yuh Ing, but not the first applicant, Dr Nur Aziah Ismail.
Dr Chong noted that the Medical (Amendment) Act 2024, which received royal assent and was gazetted on October 17, has not yet come into operation. Section 1(2) of the Act provides that the law will only come into operation on a date to be appointed by the health minister by way of a gazette notification.
“Accordingly, the JR is not academic as the regime currently applicable is that which existed prior to the Medical (Amendment) Act 2024,” Dr Chong said in his affidavit.
He also pointed out that MMC has neither revoked its October 2023 decision to refuse registration of the applicants as cardiothoracic surgery specialists on the National Specialist Register (NSR), nor registered them on the NSR.
Last October 21, Dr Chong emailed MMC for an update on the status of the registration of the first batch of cardiothoracic surgery parallel pathway graduates on the NSR, four days after the Medical (Amendment) Act 2024 was gazetted on October 17.
“Your email has been received and forwarded to the officer/person in charge. Please wait for the response from the respective officer,” MMC’s admin told Dr Chong in an email, which was submitted as evidence in his affidavit, last October 24.
MMC’s admin repeated the same answer in a November 5 email, when Dr Chong requested the name and contact of the officer in charge of their case.
“Similarly, even if the Medical (Amendment) Act 2024 comes into force, I am advised by the Applicants’ solicitors and verily believe that the controversy underlying the JR will also remain live until and unless the Respondent revokes the Impugned Decision and registers us as cardiothoracic surgery specialists on the NSR,” Dr Chong wrote in his affidavit.
“In this respect, the mere coming into effect of the Medical (Amendment) Act 2024 would not, in and of itself, render the JR academic. Instead, it would present an additional ground to challenge the Impugned Decision.
“This is because any further refusal by the Respondent to register us on the NSR, on the purported grounds that the FRCS Ed Qualification is not recognised, would directly contradict Schedule 4 of the Medical (Amendment) Act 2024.
“I am thus advised by the Applicants’ solicitors and verily believe that the JR ought not to be discontinued, as it will only be rendered academic if there is no longer any actual controversy between the parties.”
Dr Chong also stressed that any discontinuance of their judicial review could leave the applicants without any legal recourse, should the MMC continue to refuse to register them on the NSR.
“In such circumstances, our inability to challenge the Impugned Decision in court would place our ability to practice as cardiothoracic surgery specialists in jeopardy and entirely at the sole discretion of the Respondent.”
The applicants’ lawyer, Leah Marie Samuel, told CodeBlue that the High Court, at a November 18 case management, did not make any determination about whether the judicial review would proceed or be discontinued, except to direct for the filing of an affidavit-in-reply, which has been done.
The next hearing date before Justice Amarjeet Singh Serjit Singh is scheduled for May 6.
Why Isn’t MMC Or MOH Using The Saving And Transitional Clauses Of 2024 Medical Act Amendment?
In a post on X last December 10, Health Minister Dzulkefly Ahmad promised enforcement of the new regulations under the Medical (Amendment) Act 2024 by the first quarter of 2025.
“Following that, the prior ‘stranded’ registrations can be reconsidered and those who are eligible and have the right can then be called specialist doctors,” he wrote.
It is unclear why the MMC did not register the four FRCS Edinburgh cardiothoracic surgery graduates on the NSR under Section 11 of the Medical (Amendment) Act 2024 immediately after the Act was gazetted last October, pending drafting of the regulations.
Section 11(7) states that any person who – on or after July 1, 2017 and before the date of coming into operation of this Act – has completed training in a specialty and holds the qualification specified in the Fourth Schedule “shall be deemed to be entitled to be registered as a specialist under this Act”.
Section 11(6) states that a person who – on or after July 1, 2017 and before the date of coming into operation of this Act – has completed training in a specialty; holds the qualification recognised by the Council; and has either been registered as a specialist under the principal Act or has been appointed as a specialist by the Director-General “shall be deemed to be registered as a specialist under this Act”.
It is unclear why Health director-general Dr Muhammad Radzi Abu Hassan, who is also the MMC president, did not gazette the four FRCS Edinburgh cardiothoracic surgery graduates as specialists in the Ministry of Health (MOH), as they might then have been automatically registered on the NSR under Section 11(6).
While Dzulkefly has touted enforcement of the 2024 amendment of the Medical Act by the first quarter this year, less than six months since its gazettement, the 2012 amendment of the Medical Act 1971 took five years to be enforced in 2017.
Hence, it is unclear why the MMC or MOH isn’t taking advantage of the saving and transitional clauses under Section 11 of the Medical (Amendment) Act 2024 – which appears to have been drafted precisely to deal with matters pending operation of the new Act – to immediately register cardiothoracic surgery parallel pathway graduates as specialists on the NSR.
Dr Chong’s November 13 affidavit pointed out that there are “thousands of patients presently awaiting open-heart surgery”, citing a February 4 press statement by the Malaysian Association for Thoracic and Cardiovascular Surgery.
GMC: Cardiothoracic Surgery Qualification For Specialist Registration In UK Must Meet JCIE Standards
In another affidavit filed by Dr Chong in the High Court last December 19, he noted that doctors with the FRCS Edinburgh qualification are eligible, under the portfolio pathway, to be registered as cardiothoracic surgery specialists in the United Kingdom.
“This stands in stark contrast to the Impugned Decision, which effectively imposes a blanket ban on doctors with the same qualification from being registered on the NSR,” he wrote.
“In any event, the recognition of the FRCS Ed qualification by foreign jurisdictions is not a pre-condition for its recognition in Malaysia under MA [Medical Act] 1971.”
Dr Syed Nasir, one of the applicants in the judicial review, wrote to the UK’s General Medical Council (GMC) in an email on February 14 this year, saying that he is a registered GMC doctor and asking about his eligibility for specialist registration in the UK, as he has an FRCSEd cardiothoracic (JSF: Joint Specialty Fellowship) qualification.
In an email last February 22, which was included in Dr Chong’s affidavit, the GMC said Dr Syed Nasir’s certificate conferred him eligibility to apply for a Certificate of Eligibility for Specialist Registration (CESR) through the portfolio pathway.
“The specialty specific guidance (SSG) – Specialty specific guidance for Cardiothoracic Surgery – GMC (gmc-uk.org) – states that you must demonstrate knowledge appropriate for specialist practice in the UK. The Joint Committee on Intercollegiate Examinations (JCIE) specialty examination – FRCS (Cth) name) demonstrates this,” wrote Steven Osbourne, a specialist applications adviser under the GMC’s Registration and Revalidation Directorate.
“Please ensure that the qualification you upload into your application meets these standards.”
In a statement to CodeBlue last May, the GMC, which regulates the medical profession across England, Scotland, Wales, and Northern Ireland, said the JSF exam by the Royal College of Surgeons of Edinburgh and the Intercollegiate Specialty Board exam by the JCIE “aren’t equivalent”.
“There is not an exam mandated as part of making a Portfolio application for entry on to the Specialist Register; however, applicants are required to demonstrate they have the knowledge, skills, and experience required to practise as a specialist in the UK,” the GMC told CodeBlue.
“Where applicants do not hold the Intercollegiate Specialty Board exam, they will need to demonstrate the same level of knowledge by providing a detailed mapping showing how every JCIE competency has been covered in their own qualifications.”
