Traditional medicine and complementary medicine have a long history of being practised in Malaysia with many people swearing by their effectiveness. In order to regulate the practice of traditional and complementary medicine in Malaysia, the Traditional and Complementary Medicine Act 2016 (“T&CM Act 2016”) was enacted.
Following the publication of the Federal Government Gazette P.U (B) 118 on 23rd February 2021, phase 2 of the Traditional and Complementary Medicine Act 2016 (“T&CM Act 2016”), which includes the registration of traditional and complementary medicine practitioners (“T&CM practitioners”), as well as disciplinary proceedings came into operation on 1st March 2021.
Complementing this, the Traditional and Complementary Medicine Regulations 2021 (“T&CM Regulations”) setting out the processes of registration of T&CM practitioners and disciplinary proceedings also came into operation on 1st March 2021.
Registration of Practitioners
Regulations 2 to 8 provide for the registration process of a T&CM practitioner intending to practise in Malaysia and the application process for a practising certificate.
Under Regulation 6(5), any registered practitioner who practises without a valid practising certificate commits an offence and shall, on conviction, be liable to a fine not exceeding RM10,000.00 or to imprisonment for a term not exceeding 3 months or to both.
Under Regulation 8, any registered practitioner who fails to conspicuously display his valid practising certificate at his principal place of practice and a certified true copy of the practising certificate at every other place of practice commits an offence and shall, on conviction, be liable to a fine not exceeding RM10,000.00 or to imprisonment for a term not exceeding 3 months or to both.
Register
Regulations 9 to 12 provide for the maintaining of a register by the Registrar containing the following particulars:
a. name and residential address of the practitioner;
b. identity card number or passport number of the practitioner;
c. qualification of the practitioner; and
d. name and address of the place of practice.
Regulation 12 provides that a practitioner shall, within one month of the occurrence of any material change in any information furnished to the Registrar, notify the Registrar of such change in writing.
Disciplinary Proceedings
Regulations 13 to 25 provide for the process of the disciplinary proceeding.
Section 36(2)(c) of the T&CM Act 2016 provides that the Traditional and Complementary Medicine Council (“the Council”) may exercise disciplinary jurisdiction over any registered practitioner who is alleged to have committed serious professional misconduct.
Whether an act or omission amounts to serious professional misconduct would depend on the facts of each particular case. As a general rule, not every departure from the acceptable standards of conduct would necessarily amount to professional misconduct. The misconduct must be more than a mere technical breach of the relevant standards.
Regulation 15 provides that any complaint or information against a registered practitioner shall be made in writing and shall be submitted to the Council who shall then submit the same to the Investigation Committee to investigate the matter.
Under Regulation 16, the Investigation Committee may summarily dismiss the matter if the subject matter of the complaint does not fall within the ambit of the Council’s disciplinary jurisdiction as set out under Section 36(2) of the T&CM Act 2016 or there are reasons to doubt the complaint or information.
Under Regulation 17, in the event that the Investigation Committee has reasons to believe that the complaint or information is true, the Investigation Committee shall notify the practitioner concerned, forward him a copy of all documents received and require the practitioner to submit a reply within 30 days from the receipt of the notification. The Investigation Committee shall then request from the practitioner concerned for clarification or other documents to be provided within 14 days from the date of receipt of the request.
Upon considering the reply and clarification by the practitioner, the Investigation Committee may recommend to the Council that:
a. no further action shall be taken; or
b. that an inquiry shall be held by the disciplinary authority.
Regulation 21 governs the process of the inquiry held by the disciplinary authority. The disciplinary authority shall require the attendance of the complainant before the disciplinary authority on a date, time and place to be determined and shall notify the practitioner concerned of the inquiry to be held and his right to be present with or without counsel at the inquiry. At the inquiry, the complainant and any person in support of the complaint may be examined by the disciplinary authority, be cross-examined by the practitioner and be re-examined by the disciplinary authority, if necessary.
After taking the statements of the complainant, the disciplinary authority may either recommend to the Council that no further action shall be taken on the practitioner concerned or may frame a charge against the practitioner concerned and explain to him that he may make a defence and call witnesses in support of his defence.
Upon considering the statement of both the complainant and the practitioner concerned, the disciplinary authority may find that either:
a. there are no sufficient grounds to support the charge and recommend that the Council takes no further action on the practitioner concerned; or
b. the practitioner concerned is guilty of the charge.
Regulation 23 provides that, upon considering the records of the inquiry and recommendation of the disciplinary authority, the Council may, among others:
a. accept the recommendation of the disciplinary authority and impose punishment;
b. direct that the charge be dismissed if the Council finds that no case has been made against the registered practitioner; or
c. reject the recommendation of the disciplinary authority and make its own decision.
Conclusion
The procedure of the disciplinary proceedings is not unlike the ones adopted by the Malaysian Medical Council and Malaysian Dental Council. The imposition of a register and the introduction of the disciplinary regime mean that T&CM practitioners can now be subject to statutory penalties and disciplinary action. The protection of the public and the demand for a good standard of conduct can only benefit the overall provision of healthcare in the long run.
Contributed by:
Raja Eileen Soraya (Partner)
T: 03-2632 9890
E: eileensoraya@rdl.com.my
Cheong Jun Kid (Associate)
T: 03-2632 9931
E: junkid@rdl.com.my