Letters
by RS
With reference to media reports of a doctor being convicted for not registering his clinic, (Jan 19th 2008), it is incomprehensible that this registered doctor was fined a whopping RM120,000 for not registering his clinic. And since he couldn’t come up with the fine, he was sent off to serve a three month jail term at Kajang Prison.
In April of last year the DG of Health, asserted that the Private Healthcare Facilities and Services Act 1998 (PHFSA) was enacted to direct private hospitals to carry out their social responsibilities and was not meant to be punitive or detrimental in nature.
He and the previous Health Minister, Chua Soi Lek, further assured the medical community that since the Act was outdated, changes would be made and ratified by the Attorney-General’s chambers.
These changes have yet to be agreed upon or ratified but the Act has already been applied leading now to a doctor being convicted on a technicality.
Will the DG now tell the judge, that she should not have passed this type of sentence? Of course not, because that is not how the law works once an Act is passed.
This is the end result of laws that are not debated transparently or done so secretly or in a callous manner. Someone down the road will have to bear the consequences and this unfortunate doctor will now have to pay a heavy price.
And what was this doctor’s “crime”? It was not that he performed an illegal operation, killed or maimed a patient, knocked off a baby’s arm or transfused HIV blood into a trusting patient.
He apparently is a qualified doctor registered with the MMC with a valid Annual Practicing Certificate, quite unlike some sinsehs, bomohs or beauticians who masquerade as one and carry out clinical procedures.
His crime is reportedly a technical one. He did not register his clinic. His first duty would have been, like any other doctor, to see to his patient’s health. It doesn’t bear logic that not registering his clinic would kill his patient.
Many doctors were wary of the implications of these punitive punishments when Chua Soi Lek and the current DG, Ismail Merican, were actively campaigning for this law.
All their assurances that doctors will not be punished on technicalities has now come to naught as evidenced by the lop-sided punishment this doctor, who apparently didn’t have the financial means to appoint a counsel, received. Not only will his family be left to fend for themselves but his career as a doctor may come to an end.
This Act was passed in a rush and now has clearly been applied in bad faith. Without doubt, this incident will only erode further the trust doctors will have on an already disorganized Ministry of Health.
This blatant betrayal of trust by the DG and the previous Health Minister needs clear explanations. The DG may have his own runaway Little Napoleans in his Ministry and may not be in control.
It is left to the current Acting Health Minister, Ong Ka Ting to explain this transgression to the medical community and he must state if he will review or repeal this acrimonious Act.
If even Dr Chua can’t do much about this act. How could a greenhorn like OKT explain this to the medical community. Yea, the parliament has long ago being a rubbet stamp. Time has come for us to deny their two third majority so they could not simply ammend laws as they like.
Imagine amending the constitution jus to extend one person’s tenure for just a year!!for what importance??jus becos their choice of spr head?? These things happen only in Bolehland~
“With reference to media reports of a doctor being convicted for not registering his clinic, (Jan 19th 2008), it is incomprehensible that this registered doctor was fined a whopping RM120,000 for not registering his clinic.
For comparison how much would a lawyer be fined if he is caught practicing without a practicing certificate?
“For comparison how much would a lawyer be fined if he is caught practicing without a practicing certificate?” Dracula
… or one who is a blantant liar?
“.. blatant liar?” spelling check.
(Note: YB Lim, I’ve to access, unsuccesfully, a few times this morning. Are you still facing difficulties there?)
I can only say, a lawyer is much more “cunning” than a doctor. Doctor is taught to be honest but lawyers are taught to play with words.
Lawyer can simply reply,” I cannot remember whether I hold a practising certificate. It looks like I dun have a practising certificate but I would not say I have a valid practising certificate or I dont have a valid practising certificate”
But a doctor will confess to his wrongdoings “I am the man in the tape”
Looks like I wrote this piece of comment – did I? but it may or may not be written by me. I can’t confirm or deny it.
Yeah Bolehland is where they hang the petty thieves and appoint great ones to public office!
Can you imagine they have messed up the life and career of this doctor?! Did he rob the rakyat?
We must stay united and kick those BN monkeys out!
Enough of their nonsense!
Chong Zemin, please keep within the context for discussion. This is not about lawyers versus doctors. This is about sitting on and imposing an outdated law on a qualified and licensed doctor and sending him to jail for a mere technical offence. This is about a doctor who is now probably still in jail for that technical offence.
This is about an inefficient government who can do and get away with many, many things but could not even get a small Act repealed or changed. This is about a Judiciary which can let a snatch thief who nearly killed go with a small fine but would not hesitate imposing astronomical fine and effectively sending a trained and licenced doctor to jail. This is about many other things in the country which have to be set right.
Of course, some lawyers are disgusting. Some doctors are as well. But I hope you would not run into legal problems because if so, your lawyer would probably be your best friend. Cheers.
Not a single day passes without one promise coming out from a Minister or his subordinates only to ignored the very next day. Be it a ferry/bus/lorry accident, projects for the poor, grants and scholarships and university places for students, transparency or good governance – nothing is fulfilled.
We will hear more promises before the general elections …..and lies. Will the people be fooled all the time?
Surely we need a just and reasonable rules not the one we have now which based on an act to prevent without real enforcement of the rules.
It is too harsh for the Doctor to be jailed just because of technicality.
Actually that doctor DOES possess a valid Annual Practising Certificate.
The requirement that the _clinic itself_ be registered, is a NEW requirement, which came up very recently. I’m not sure if there is a similar law, requiring lawyer offices to be registered, and to comply with regulations concerning doors, walls, floors and ceilings, and equipment (fax machine? computers? phones? printers?).
The Act requiring registration of clinics was forced through despite calls by various people, including Datuk Mahadev Shankar (member of the present Royal Commission of Inquiry into the Lingam videotape affair) who had publicly criticised the PHFCSA1998, who had called for it to be amended before implementation, as “it gives too much power to the DG, and was passed without consultation with the medical profession.”
http://the-malaysian.blogspot.com/2006/08/draconian-act-that-should-be-laid-to.html
If you examine the circumstances surrounding this doctor, you’d probably feel sorry for him – he was struggling financially, with unpaid utility bills and personal debts.
To comply and register under the new PHFCSA1998, he might have to spend further sums of money to buy unnecessary new emergency equipment (which necessity had been debated by many doctors in online forums!), as well as spend sums of money on unnecessary (but required by the Act & Regulations) renovations, including CHANGING THE DIRECTION HIS TOILET DOOR OPENS!
Apart from that, the fees alone, to register his clinic, cost RM1,500.
Can you imagine paying RM1,500 for a piece of paper, made mandatory by a new piece of legislation? To get a perpective, the Annual Practising Certificate only costs RM50!
This doctor pleaded that he was in the process of selling his clinic, and would have thought that the new buyer would register it, and probably figured that it would have been a matter of a couple of months difference only, and therefore not worth registering the clinic.
The new law requires that the new doctor-owner would have to RE-register it anyway!
The poor doctor could not even afford to engage a lawyer to defend him or mitigate for him!
And now he is going to jail!
He has eight children to support!
what is malaysia getting into.? Criminals who are drug Traffickers overseas are been taken care off.
Here a Sick peace demonstrator been handcuffed to bed, tightly guarded by 4 prison security officials at all times. It looks like Uthayakumar, maybe it is not him, maybe he from Hindraf. what you think ahand what your comment?
HB Lim,
I’m just trying to be a bit funny after reading Count Dracula’s comment. Anyways, apologies to lawyers out there if you feel offended. after all you guys should know which lawyer i was referring to!
The irony of this is that there had indeed been several cases of _bogus_clinics_, run by _bogus_doctors_, that had been detected and raided by Ministry of Health officials. However, for reasons unknown to me, these obviously had NOT yet been convicted yet.
One wonders why the Ministry chooses to prosecute this case of a REAL doctor first, when the original purpose and spirit of the ACT was to weed out bogus doctors, whose practices endanger patients who trust them with their lives.
HB Lim,
Well said. I like the way you put it! :D
FYI according to the NST, Dr Basmullah Yusom has earned the dubious distinction of being the first person in the country to be convicted under the Private Healthcare Facilities and Services Act 1998. [Dr. Basmullah Yusom is a USM graduate, attained MMC registration in 1990 and as of 2008 still holds a valid APC].
“Dr Basmullah, 44, had been operating the Al-Hilal Medical Centre Sdn Bhd at No 55, Jalan 5/76B, Desa Pandan, off Jalan Kampung Pandan, since 1998. The father of eight, who was charged on Dec 13 last year, had pleaded guilty to committing the offence at the premises at 10pm on July 11 last year.
Sentencing was fixed for yesterday. Under the act, he was liable to a maximum fine of RM500,000.
In mitigation, Dr Basmullah, who was unrepresented, pleaded for leniency, saying he did not register his clinic as he wanted to sell it and that he was not the only person running the clinic.
“I have financial problems and I still have to pay RM7,000 for the clinic and RM10,000 in personal loan,†he said.
Under the act, he was liable to a maximum fine of RM500,000.
Dr Basmullah said he had since moved to Putrajaya claiming it was cheaper to live there and that he had sold his car and was using a motorcycle”.
DPP Norfiza Mohamed Noordin from the Health Ministry pressed for a deterrent sentence.“Unlicensed clinics make it hard for the ministry to monitor them to ensure that they do not illegally sell drugs or conduct illegal abortions. This is to ensure public safety.
“Being busy and having financial problems are not excuses for not registering the clinic,†she said.
Judge S.M. Komathy Suppiah fined Dr Basmullah RM120,000 or three months’ jail.
I am wondering if the poor doctor is an opposition member. It could be selective persecution. I hope he has appealed against the sentence.
This can only happen in Msia. Stupid and outdated laws that only suit UMNaziO. Their people can get away with corruption or even murder(Mokhtar Hashim).
Another venue is to get a royal pardon so that he can continue to practise as a doctor.
OKT is right now too busy with preparations for the GE and what’s more he is so involved in non-political matters, attending opening ceremonies, cutting ribbons, giving speeches, organizing karaoke contests, opening seminars for his “life long learning” programme, etc. So where has he the time to look into such minor and unimportant things.
I am wondering if the poor doctor is an opposition member. – posted above
Untuk pengetahuan anda, Dr. Basmullah adalah antara doktor yang keluarga kami sukai. Semasa saya masih belajar di Matrikulasi (10 tahun dulu), beliau pernah datang ke rumah saya dari poliklinik al-Hilal, Kg Pandan ke Salak Selatan untuk merawat datuk saya yang sedang sakit. Beliau juga adalah doktor yang mengkhatankan 2 orang adik saya, dimana saya sendiri beliau jadikan sebagai pembantunya ketika itu.
Secara personalitinya Dr Basmullah, sering memakai serban besar walaupun ketika merawat pesakit. Serbannya besar seperti serban pengikut al-Arqam dan beliau bertutur dengan lemah lembut dan baik. Walaubagaimanapun, sudah lama saya sendiri tidak berjumpanya selepas itu.
Saya berasa kasihan kepada beliau kerana terpaksa dipenjarakan kerana tidak membayar denda. Keluarga saya sendiri berasa hairan kenapa beliau memilih untuk tidak membayar denda RM 120,000 dan rela dipenjarakan. Ini boleh menyebabkan reputasi yang beliau ada selama ini akan merudum akibat dipenjarakan.
Mungkin Dr. Basmullah memandang remeh kepentingan mendaftar klinik beliau ke Kementerian Kesihatan. Pembayaran pendaftaran klinik jikalau saya tidak silap cuma RM 1500. Amatlah murah jikalau dibandingkan dengan RM 120,000 dan dimasukkan ke dalam penjara. Menyesal dahulu pendapatan…
Posted by Dr Azwan
http://drazwan.blogspot.com/2008/01/dr-basmullah-di-penjarakan.html
I’ve got nothing to say about the conviction because good or bad there is a Private Healthcare Facilities and Services Act 1998 (“PHFSA”) and, whatever the merits or demerits of PHFSA and no matter that there are loopholes in it that the Ministry of Health, Medical Council & Profession have to iron out, it is still law, and an offence under it for Dr. Basmullah not to register the private clinic.
I also cannot understand why an educated doctor like him cannot just walk to the banks and raise a collateral free loan to pay for the license which I dont think cost a big amount. Nowadays the banks even push all kinds of credit cards to uninterested consumers and it is something baffling that a professional man, no matter how poor or unsucessful, could not raise or borrow the amount equivalent to the cost of licensing his private clinic.
But all these aside, I have to admit that I can neither understand nor agree with the sentencing principles applied here in the name of deterrence.
If maximum fine is RM500,000 why was a fine RM120,000 imposed and not (say) RM12,000-00? Where was the figure RM120,000 plucked from? It cannot be from some precedents because this is first conviction under the PHFSA. Yet sentencing is guided by established principles and guidelines. It cannot be arbitrary. Itr must take into account relevant factors where punishment bears proportion to the gravity of the offence.
Has the appropriate weight being attached to relevant mitigating or exacerbating factors?
Lets look at the policy considerations and public interest considerations raised by the DPP – she said “Unlicensed clinics make it hard for the ministry to monitor them to ensure that they do not illegally sell drugs or conduct illegal abortions. This is to ensure public safety”.
Yeah but was the offence of Dr. Basmullah who ran unlicensed clinic exacerbated by any evidence showing that he illegally sold drugs or conducted illegal abortions? He already said that he wanted to sell the clinic and that he was not the only person running the clinic.
Has there been any attempt to verify or prove his claims which could be mitigating? No doubt it is not the job of judge or DPP to help him prove it but this doctor had no legal representation (ostensibly he could not afford one) but has he been referred to Legal Aid or given advice to seek legal help?
Also if the legislative intent of regulation under PHFSA is to flush out bogus doctors and charlatans why wasn’t it an important mitigating factor for this offender that he was, at the time of offence, a qualified licensed medical practitioner with APC and not fly by night bogus charlatan?
Sure the DPP said, “being busy and having financial problems are not excuses for not registering the clinic” but universally being “first offender” – I assume he is one – is certainly a crucial mitigating factor.
One does not sentence a first offender with such alacrity to jail – even for 3 months – and expose an otherwise law abiding citizen, and a doctor at that, serving the community, to criminal elements in Kajang Prison who may brutalise or sodomise him, pass him HIV, teach him the ways of making a better living via crime than an unlucrative medical practice etc
Lets look at the policy considerations and public interest considerations raised by the DPP – “Unlicensed clinics make it hard for the ministry to monitor them to ensure that they do not illegally sell drugs or conduct illegal abortions. This is to ensure public safety”.
Asking him to appeal does not help. Has he got money to hire a lawyer to appeal on his behalf within prescribed time as regards sentencing? For an appeal the judge must write a judgment on why he sentenced such, and what happens if such a written judgment is available only after 3 months longer than the time it takes for him to serve the sentence?
There could in my opinion be a grave injustice in this case regarding sentencing and punishment and Dr Basmullah appears to have been severely prejudiced by the lack of legal representation due to his alleged lack of money to appoint counsel. Something is wrong with a system where lack of money leads to no access to legal representation and loss of liberty.
I am not too clear about our Attorney general’s powers and discretion but in an exceptional case like this highlighted by media that he may have overlooked, does he not have a function and role to intercede even at this juncture if public interest requires him to intervene on the side of justice?
Politicians on both side of divide lament on crime surge : they should highlight this case. It does not serve justice or make sense to compound overcrowding of prison by sending an otherwise law abiding professional to jail to mix with criminals and learn the trade in this university of crime so that he could come out, unable then to ply his professional trade due to this custodial sentence & conviction and to have to eke a living to support his family by joining the ranks of the ever expanding group of criminals, snatch theievs, robbers and burglars threatening the community.
There seems to be new approach in Jabatan Gomen, become a’profit center’ get the public to pay for everything, registration of all kinds of licenses,permits and what have you? the cost of doing business keeps increasing. Who is paying for it? RAAYAT MALAYSIA!
You and I. When some thing needs registration, it is meant to control certain practices or procedures; in Malaysia it is for the sake of filling the forms and keep the Gomen staff occupied! but most of the time they refuse to keep themselves occupied! more time wasted, higher cost of doing business, simple, pass it down to the consumers. Who? RAAYAT MALAYSIA. Certainly those in the higher brackets do not feel it; but the Group C and D staff, very soon you can only use your Kancil once a week!! Becos fuel and toll gonna go up!!
I don’t think it is Ong Ka Ting or Chua Soi Lek’s fault.
Remember they are ‘tied-down’ to the little Napoleans in the UMNO-run govt, in which MCA is a staunch ally?
Ong Ka Ting & Chua Soi Lek is trying to help the poor doctor, but due to the complex system built by the little-Napolean in our govt delivery system and their absolute no-power in the Jurisdical system render them powerless to help.
I don’t blame them. I pity them.
Moral of the story – Vote DAP. At least we have a strong lawyer Karpal Singh in DAP, which can help.
“…and a doctor at that, serving the community, to criminal elements in Kajang Prison who may brutalise or sodomise him, pass him HIV..” Jeffrey
No conjugal visits allowed by the spouse?? Even for three months? That’s inhumane!
Conjugal visits ? Maybe for VIP multimillionaire prisoners who help redistribute wealth for favours…. A cell of l0ft by 8 ft cell, which is 10 ft. high, although don’t know the exact no. of inmates in one cell in Kajang prison.
Although there are standard prison rules regulating admin of prison but are they are enforced? Malaysian prisons generally well known to be overcrowded with no separate toilet facilities for privacy. Toilet is not a flush toilet but the pour-water type, and when the pipes are choked, which is not an unusual occurrence, the sewers will flood the cell! According to hearsay, lucky to be able to lie down on wooden plank to sleep with cockroaches crawling over your naked body ; otherwise have to couch or sleep standing up if 4 – 6 crowd in one small cell, sweaty in this climate smelly little ventilation, both local and foreigners share cell. Food maybe a bit of rice, curry little meat, often stale.toilet is not a flush toilet but the pour-water type, and when the pipes are choked, which is not an unusual occurrence, the sewers will flood the cell! Youi lose more than 10 Kg in 2 week stay! Infectious diseases spread. (Medical attention is given in manifested serious cases). Re sub-culture within prison, one has to survive by ingratiating gang leaders or certain prison warden and guards. I am sure rape is not infrequent though details/information not made known.
In my opinion, there should be a a Royal Commission/national debate to enquire as to whether Malaysia’s prisons conform with the international minimum standards and wide-ranging reforms on humanitarian grounds.
Or Dr. Basmullah may get some preferential treatment if prison warders find use in his physician’s skills to help some of the sick in prisons?
Jeffrey said, “Dr. Basmullah may get some preferential treatment if prison warders find use in his physician’s skills to help some of the sick in prisons?”
Jeffrey, would the poor doctor get into even more trouble for practising medicine where he is not licenced to practice? His APC would NOT have listed the prison as his address of practice.
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