Professional Misconduct: Underestimate the Ethical Code at Your Own Risk…

Since I was elected into the Malaysian Medical Council in August 2004, I have had the privileged of sitting through some eye-opening complaints of professional misconduct allegedly perpetrated by some of our medical colleagues.

Contrary to what many may believe, the Medical Council (which currently comprises some 15 nominated—from the earlier 5 medical schools—and 9 elected members) takes an extremely serious but determined view with regards all queries of misdeeds or alleged wrongdoings made by the medical profession.

For whatever it is worth, it is the de facto watchdog body to police, discipline and regulate the medical profession.

It is not a paper tiger to protect and exonerate the errant medical practitioner! It is neither a band of sanctimonious old folks who are out of touch with modern medical practice, nor those who simply wish to impose their antiquated ideas of ethical propriety on to the doctors at large.

The most active and enthusiastic members of the Council are members who have been duly elected by you. They are elected volunteers who care enough about what happens to the medical profession that they serve in this often thankless task.

Council members represent generally the mainstream of medical practice in Malaysia. The nominated members are all senior members of the teaching staff of our medical colleges who have been entrusted by us to teach and nurture the development and training of our future doctors for Malaysia.

Importantly, we rely very closely on the Medical Act and its regulations as well as the strict interpretation of our Code of Professional Conduct, with the constant assistance of and references to our legal advisers.

In the coming revised Medical Act, some representatives from the lay public will be invited to sit in the Council, so as to ensure further transparency and impartiality of the Council proceedings.

In fact, through the painstaking efforts of four legally-instituted Preliminary Investigating Committees (PICs), tens of cases of alleged ethical breaches are scrutinized every year.

Although I was not previously aware of, all the members of the PICs are invited and nominated by the Director General of Health, from the ranks of our own peers—they are invariably medical professionals who are greatly respected for their solid reputation and seniority—they are one of us, too.

The investigative process is meticulous and often very thorough. And it is incumbent on the very experienced chairpersons of each PIC, to ensure that only relevant and unbiased inquiries are scrutinized, before determining if there was any case to answer.

These inquiries have been and are indeed time-consuming efforts. They offer generous latitude toward legal defences of the alleged perpetrators of any professional misconduct being investigated. Point-counterpoints are often made with legal challenges and rebuttals, but frequent absenteeism and last minute postponements, also draws out the tedious process sometimes interminably; and this has led to unfortunate impatient responses from both sides.

At any rate, every case is further dissected by the Council members at their monthly meetings, for a final judgment as to full acquittal or toward a formal full Council hearing, to be answered by the charged professional.

Nearly 2 full days out of every month are spent on such disciplinary hearings which consume some 80% of the work of the Council! And the complaints continue to mount, despite heroic efforts to clear quite a fair bit of the backlog caused by earlier tardiness from too frequent legal challenges and inappropriate deferments.

The past 2 years have seen the resolution of some of these cases, which augur well for the Council efforts, but also for the medical professionals who have been subject to such disciplinary inquiries—some closure will certainly help lighten the anxiety of the unknown.

Notwithstanding this, the Medical Council is duty bound to be impartial and abide by the strictures of the Medical Act and its solemn interpretation of the Code of Professional Conduct.

The MMC has to be seen to be fair first and foremost to the complainant who is more often than not, a member of the lay public. We have been reminded often that the MMC is not so much a rubber stamp to protect the rights of the medical professional.

Conversely, the MMC is there to protect the rights of the public so aggrieved, less their grievances go unanswered and unhappily resolved. Similarly, the genuine misdeeds or wayward behaviour or conduct of the medical professional should not be seen to go unpunished and unchecked.

Yet there have been cases of patient-physician misunderstanding and miscommunication which do not amount to professional misconduct and these unhappy miscues of happenstance have always been made known to the complainants, at the end of thoroughly exhaustive inquiries.

It is always understood that the aggrieved parties may choose to challenge the MMC decision, and apply to the courts for civil redress. Similarly, the punishment meted out by the MMC upon the medical professional can be challenged in High Court, through an appeal process if made within one month of the passed judgement.

Notwithstanding this potential for reversal of the judgment and sentence, the MMC has never failed to take stern actions against the delinquent medical professional when it feels that serious professional misconduct has taken place.

It is very rare for the MMC to fail in its pronouncements of guilt, although some of the MMC’s sentences had in the past been mitigated by the Courts, which felt some punishments might have been too harsh.

It is useful to remind ourselves that these are punishments that have been deliberated long and hard not so much by vengeance or vindictiveness, but by peer-reviewed concepts of what constitutes the highest standards of medical professionalism, and what falls miserably short.

No one on record had been exonerated i.e. totally vindicated by having the judgment overturned, by the Courts to date.

Therefore, the MMC’s role and actions should be viewed very seriously and every medical practitioner must be cognizant as to what and how he or she should practice ethically, and not place the medical profession under the harsh odium of disrepute and tarnish its professional standards and good name.

The lightest sentence imposed by the MMC is one of reprimand. This carries the stigma of having the professional’s name being circulated to the press and public, and the errant professional loses his right to exercise his vote for five years.

He would also not be able to receive a letter of good standing should he or she choose to work overseas as a doctor. This meted punishment is also a permanent record and stain which cannot be expunged unless directed by a higher court. Recurrent misdeeds by the same practitioner would then be seen in a far more severe light which can lead to suspension or even deregistration.

Hence even a reprimand is a very solemn affair and every medical professional should take due recognition as to its serious implications before indulging in scurrilous misconduct without thinking about it.

Of course, the order of suspension (for a duration of time, months to years) or deregistration carries much more sinister import—which materially deprives that practitioner of his livelihood and profession! Besides the obvious personal grief and stigma, the doctor’s reputation would be seriously damaged in the eyes of the public and peers.

This publication in the press will needless to say seriously undermine the credibility and reputation of that doctor and his standing in society. Importantly the errant practitioner will not be able to practice medicine anymore during the period of suspension, or henceforth, if struck off the medical register!

Clearly too, to earn such a punishment would mean that the medical practitioner had been found guilty of engaging in some very egregious and serious professional misconduct, which in the eyes of the Council of peers, makes the misbehaving doctor unfit to practice medicine for some time, or permanently.

What are some of the recent disciplinary problems faced by some of our medical practitioners?
Most complaints against doctors relate to their practices which caused some unhappiness among the treated patients or their families.

This might be related to overcharging, rudeness and lack of caring attitudes, wrongful deaths, or alleged poor or substandard medical care or unforeseen unfavourable outcomes. These fall under the loose categories 1.1 through 1.2, of the Code of Professional Conduct (CPC), under “Responsibility for Standards of Medical Care to Patients.”

A large number of these pertain to poor physician-patient communication, which leaves the aggrieved parties too many unanswered (and unsatisfactory) queries to fester upon and infuriating their sense of justice and sense of proportion.

Many of these complainants seek to punish the doctors’ purported error or misconduct. Some complain out of the need to obtain redress for their perceived wronged experience. Sometimes, a little give and take and further explanations from the miscued practitioner may resolve the problems altogether.

Sometimes however, these complaints underline a more serious consistency of misbehaviour on the part of the physician, when more serious MMC actions would be mandated. These fall under the category 2.2 under “Abuse of Privileges Conferred by Custom”.

Another more serious category involves the poor record keeping of dangerous drugs under the Poisons’ Schedule. These Schedule B drugs have been dispensed indiscriminately and without proper obligatory record-keeping—such that this action can be misconstrued as unethical distribution of drugs without proper medical indication or examination. This falls under the general category 2.1 under “Abuse of Privileges conferred by Law”.

Many of these cases pertain to psychotropic drugs and syrups which have been misused for drug addicts without proper documentation, drug rehabilitation programs or counselling. The use, storage and distribution of banned substances also fall into this category (CPC 2.1.1, 2.1.2, 2.1.3). This can be construed and have been taken to mean some form of drug trafficking offence, if the authorities so choose to do so, when charging these errant doctors.

Some of these doctors have been hauled up by ‘sting operations’ by the enforcing officers of the Pharmaceutical arm of the Ministry of Health, and have been charged and found guilty by our courts.

We are now aware that the police are now adopting the more serious charge of Drug Trafficking for those caught selling, distributing or hoarding banned drugs/syrups which contain opiates—these charges carry the mandatory death sentence!

It is important to state here, that the medical practitioner should not take the easy way out to plead guilty so as to pay a small fine and then get on with his practice, purportedly for convenience’s sake. Pleading guilty is taken to mean the same as being found guilty in the court of law and this will impute that the guilty doctor had breached our ethical code of conduct and will be found to have engaged in serious professional misconduct. The ensuing punishment by the MMC has thus far been severe and harsh, i.e. usually a suspension if not deregistration, depending upon the gravity of the cases.

Careless selling of medical certificates or sick chits without examination (CPC 2.1.4), can also lead to serious consequences of professional misconduct, and has led to suspension of the medical licence to practice. The MMC is aware of several creative versions of excuses which errant doctors propose to limit or exonerate the offences of their clinics or practitioners.

Yet another serious violation involves having unqualified medical assistants or unregistered doctors (including the use of provisionally registered house officers) to run registered clinics. This breach (CPC 1.4, under “Improper Delegation of Medical Duties”) is a very serious offence, which the MMC views very unsympathetically.

Other offences which doctors have been found guilty of in the Malaysian Courts and which have a bearing on the professionalism of the medical practitioners have also been the focus of some charges of professional misconduct brought before the MMC.

Some of these involve cases of cheating, fraud or business malpractices, and have been brought up due to the reliance on the strict interpretation of the current code of conduct (CPC 3.2.2; under “Personal Behaviour. Dishonesty: Improper Financial Transactions”). The CPC stipulates that that those who have been found guilty or who have been fined in the courts, would also be guilty of gross professional misconduct.

However, the MMC is aware that unless these directly pertain to professional matters, the question of double jeopardy should be avoided. However, the onus is on the errant practitioner to prove this separation of personal versus professional misconduct.

Commercial undertakings by medical doctors are a right, but these should be cautiously applied as they can be embroiled in conflict of interest situations. A recent case involves the use of unproven technology and products to advertise for a commercial undertaking which a doctor had a financial interest and shareholding. Because there was a complaint from some other party (which may be a fellow medical practitioner, a medically-related society, a professional organization or even a consumer association), who knows this to be so, the practitioner was charged and found guilty of serious professional misconduct and subsequently suspended. This falls under the CPC category of 3.4 and 4.1.

Of late one of the most common complaints come from our own fraternity of medical practitioners, who complained that some of their fellow practitioners have been engaging in blatant advertising and canvassing in the press and media. Although in this day and age, many of our younger doctors out there may feel that this is now an antiquated ruling, it is nevertheless very much an accepted code for our community which by and large still frowns upon such behaviour as unethical and callous.

We are aware that advertising by physicians is allowed under the Physician’s Code of Professional Conduct in the United States of America. However, as we are more closely bound to the British and Commonwealth statutes and laws, our system mirrors more accurately that of the latter.

Similarly our Ethical Code closely resembles that of the General Medical Council’s Code of professional conduct of the United Kingdom. Unless and until this changes, the Malaysian medical professional has to abide with the strictures and rules of our own CPC.

In the recent review of the Malaysian Code of Professional Conduct and the attendant Medical Act revision (in March 2005), most of this statute and its core contents have been retained with very minor variations or relaxation of this ethical code on “Advertising, Canvassing and related Professional offences”, CPC 4.1, 4.2.

Therefore, medical professionals in Malaysia must not only be aware but must also be very familiar with our Code. Furthermore, it must be made very clear and categorical that ignorance of this code of conduct does not absolve them from blame or censure if these breaches have been brought up to the MMC.

Press statements or invitation to press reporters to cover or interview medical professionals should be carried out with as little embellishment as possible. There should be no attempt at directing undue attention to the practitioner’s so-called expertise or skill. In clarifying new techniques or technology the practitioner should not resort to deprecating his fellow practitioners, so as to promote his own professional advantage, and thereby attracting patients unfairly.

Medical facts and advances can be disseminated but without calling gratuitous attention to the expertise or singular praise for a particular practitioner or medical centre. Inducements such as free or discounted testing or other benefits would be considered as particularly unethical, and would be in breach of serious professional conduct. Promoting untested and unproven technology or medical equipment could also be deemed unethical and the practitioner may be called to answer to the MMC for unethical practices.

In general, the MMC is for promotion and dissemination of new and important information on medical advances and techniques, and their availability in Malaysia. However, unregulated and unrelenting publicity with unfair advantage to promote any particular medical centre or medical practitioner is frowned upon, especially when this is done to entice unwitting patients from the public at large.

So it behooves the medical practitioner to review his knowledge and concept of the code of professional conduct. We have to acknowledge that by and large each and every one of us medical doctors need to constantly remind ourselves that we are privileged practitioners only because this has been empowered upon us by some special laws and codes of the land. We must understand that as doctors we have far more stringent boundaries of ethics than the population at large.

We need to understand that we sometimes have to police ourselves and failing which there is that authority out there which will do so for us. We have to put out act together, so that the standing and prestige of our professionalism can withstand scrutiny and the passage of time. We must earn the trust so long placed upon the profession since time immemorial. We hold that public trust which must remain unshakable and undiminished.

[The booklet, Code of Professional Conduct, is freely available upon request to any medical practitioner who is registered with the MMC]

(MMA News Editorial, April 2005)