Solving the problem of bad apples among doctors

In the first part of this article, I talked about one of two difficult healthcare regulation issues that the health ministry took on in recent months.

The first healthcare regulatory issue was the deregulation of doctors’ and dentists’ consultation fees. The second is something on the other side of the coin: “over-regulation”.

Recently, the ministry tabled an amendment to the Poisons Act 1952 proposing that doctors who refuse to provide patients with prescriptions upon request be fined RM3,000, imprisoned for a year or both.

This stirred up a huge controversy, and rightly enough the Malaysian Medical Association and other groups have decried the move.

To the credit of Health Minister Dzulkefly Ahmad, the objections were heard and the amendment removed pending review, with the minister assuring that such extreme punitive measures would not be put into future amendments to the act.

I am no apologist for the minister or a paid supporter of his party or the current government. However, it must be clearly stated here that only in today’s current climate would this “U-turn” scenario, as many might call it, be justified.

Here is a minister who listened to the feedback and outcry from the ground and took action, even at the cost of “losing face”, to do the right thing for the Malaysian health system.

Lest Malaysians forget (and we Malaysians are really good at forgetting), the ministry was never previously so responsive, listening and acting in a timely fashion in terms of feedback from stakeholders.

The act specifying standards for healthcare facilities and services is the Private Healthcare Facilities and Services Act (PHFSA), enacted in 2006 to ensure the integrity of healthcare professionals, quality of care and patient safety.

I am told by senior colleagues that during that time, despite feedback and complaints from professionals, the act contained provisions that made professionals liable, upon conviction of certain offences, to a fine, imprisonment or both.

Assurances were apparently made by the powers-that-be that this would never come to pass and that it was “merely the way the law was written”.

However, in 2008, Dr Basmullah Yusof became the first doctor in Malaysia to earn the dubious distinction of being jailed after he was found guilty of operating a medical centre without registering it under the PHFSA.

To be fair, the doctor opted for a jail sentence of three months instead of paying the RM120,000 fine which he said he could not afford.

But the issue is not whether Basmullah was guilty of committing the offence with which he was charged. He was. The question is whether he should have gone to jail for it.

Regulation is an important component of healthcare, and part of any government’s duty is to ensure that its citizens have access to and receive good, quality healthcare.

But the line between necessary regulation and over-regulation is a fine one, and to add insult to injury there is also a larger worrying issue to look at: that of creeping criminalisation in healthcare.

Criminalisation is defined as the act of turning an activity into a criminal offence, or a person into a criminal by making what he or she is doing illegal.

In many cases, it is quite easy to do this as some things are very clearly defined. Stealing is a criminal offence under the law and the thief, when found guilty, is sent to jail.

But things are not so simple in healthcare. Many issues are clouded, hazy and finally dependent on the testimony of doctor versus patient, adjudicated within a legal system which itself has trouble grappling with the complexities of healthcare.

Some amount of criminalisation of healthcare makes sense – for example, to deter doctors from indulging in Kevorkian practices (Jack Kevorkian was a US suicide-doctor, for those not in the know), or prevent them from conducting unnecessary or even illegal procedures on patients.

However, should failure to register a clinic land a doctor in jail?

The law currently provides for that and, as mentioned earlier, someone has already received such a punishment.

Thankfully, now that the proposed amendment to the Poisons Act has been shelved, doctors will not be put behind bars if they do not write prescriptions for patients who request them.

We healthcare professionals need to figure out where these calls to regulate, over-regulate or even criminalise are coming from.

One of the underlying issues leading to the creation of more regulations pertaining to healthcare professionals is clearly our inability to self-regulate quickly and transparently.

Mechanisms do exist for healthcare professionals to regulate those within our profession. But as a senior colleague says, the wheels of justice in healthcare are all rusty, so it takes a lot of time before any action is taken.

More importantly, when such actions are taken, i.e. a healthcare professional is punished or loses his or her licence, little is said about it anywhere. The impression the public receives is that we are all “covering things up”. This is also part of the thought process that drives many medico-legal lawsuits where the “aggrieved” party of patients feel that they need to bring doctors “to justice”, otherwise no one will ever take action.

This is not to say that the Malaysian Medical Council, the body legally empowered to regulate doctors, is not doing its job. But in this day and age, it is truly perceptions that count, and in that sphere, we seem to be seen as performing dismally in terms of self-regulation.

Truth be told, though, doctors are reluctant to blow the whistle on their fellows when irregularities or illegalities are detected, as even recent examples show.

We know of bad apples but are reluctant to act as we just “don’t want to disturb other people’s rice bowl”.

Leaving things “alone” for someone else to act on will, over the long run, breed hostility towards the profession if it has not already, and our unwillingness to self-regulate will cause regulations and laws to be placed upon the profession by the government.

Though this may seem the stuff of Bollywood, mob rule might even ensue. This is not so far-fetched.

In India, public distrust and the misperception of doctors is so high that many members of the profession, irrespective of whether they are good or bad, have been assaulted by angry families of patients. Sometimes, doctors are killed when patients have poor outcomes. Is this what we want?

The first part of this article appeared on Dec 10, 2019.

The views expressed are those of the author and do not necessarily reflect those of FMT.