I call on the Attorney-General Tan Sri Gani Patail to uphold justice and intervene to quash the three-month jailing of a private practitioner Dr. Basmullah Yusom for being unable to pay RM120,000 fine for operating a clinic without registering it under the Private Health Facilities and Services Act 1998.
Yesterday, my blog received and put up a letter on the jailing of Dr. Basmullah on 18th January 2008, drawing my attention to this gross injustice for the first time.
I checked the press and found this New Straits Times report “Doctor fined RM120,000 for not registering clinic” dated 19th November 2008.
I call on the Attorney-General to make swift amends of such travesty of justice and invoke the revisionary powers inherent in his office to call up Dr. Baharum’s case to get him out of jail without any moment of delay.
Alternatively, I call on the Chief Judge of Malaya or the Chief Justice of Malaysia to invoke their revisionary powers to call up the case to quash the jail sentence imposed to Dr. Baharum.
DAP MPs and leaders will contact Dr. Baharum’s family to see how we can help to get him out of jail.
#1 by Tickler on Sunday, 27 January 2008 - 12:40 pm
Dr. Azwan can help contact the family:
No 28, Jalan 17/108, Taman Salak Jaya, Salak Selatan, 57100 Kuala Lumpur H/P:012-9597074 Fax:03-79813582 Email : [email protected]
http://drazwan.blogspot.com/2008/01/dr-basmullah-di-penjarakan.html
#2 by Itshowtime on Sunday, 27 January 2008 - 1:06 pm
Why its always the good guys that end up in the wrong side of the law esp in Malaysia.Why cant the authorities go after the self claimed so called doctors who are really frauds and a menance to society.What is wrong with us?
#3 by Godfather on Sunday, 27 January 2008 - 1:15 pm
These so called defenders of the law only go after the weak, the powerless and the meek. That’s the only yardstick of success that they can show to the rakyat.
They can even get a court order to ban a public protest against price hikes. That’s what happens when the AG’s Chambers, the Police and the Judiciary are all in cahoots with each other. Sad state of affairs.
#4 by Jeffrey on Sunday, 27 January 2008 - 1:16 pm
God bless you YB Kit for intervening and highlighting such travesty of justice in Dr. Basmullah’s case in this blog for national attention.
As we look into and pay attention to large national issue of Judiciary’s independence/Lingam Video Clip in service of the Great Cause of Justice, we should not forget easily overlooked and unremembered individual cases like that of Basmullah Yusom’s as just one of those tolerable aberrations in an otherwise less than perfect Justice System. It is just as not tolerable.
Highlighting the plight of an unrepresented litigant like him against the backdrop of extenuating circumstances surrounding his case that merits question, is very much an integral part of that service – of the Cause of Access to Justice to which all Malaysians of whatever race, religion creed and station in life – and economic circumstances – is entitled to, as of right.
I hope our attorney General YBhg. Tan Sri Abdul Gani Patail will treat this thread as an open letter to him to rectify the injustice.
As the principal legal adviser to the Government, his powers under article 145 of the Federal Constitution will include the power, at his discretion, to render legal advice to the Yang di-Pertuan Agong or the Cabinet or any Minister upon such legal matters and to institute proceedings in any court at any venue under a certificate of urgency to revise what I consider a misplaced custodial sentence based on reasons given in my posting at 18:49.36 under earlier thread, “Will Ong Ka Ting review the PHFSA?â€.
#5 by disapointed86 on Sunday, 27 January 2008 - 1:26 pm
Dr. Basmullah is wrong for didnt register his clinic..but so far he hasnt done something that threaten the society..why do he need to face heavy penalty for that? whereelse some other daylight robber can escape right in front of the authority?…what country is this?
#6 by Tickler on Sunday, 27 January 2008 - 1:32 pm
…what country is this? – disapointed86
Looks like we`ll learn more with DSAI`s new video on Monday:
“Sekembali saya dari Hong Kong petang Jumaat, saya memperolehi klip video terbaru mengaitkan lagi pelakon utama VK Lingam, para hakim pilihan, tauke judi Vincent Tan, sekutunya Tengku Adnan Mansor serta bekas PM Tun Dr. Mahathir.
Tunggu dan saksikan adegan menarik Isnin nanti inshaAllah.”
http://anwaribrahimblog.com/2008/01/27/klip-video-terbaru/#comments
#7 by cheng on soo on Sunday, 27 January 2008 - 2:36 pm
A big fine = custodial sentence for most ppl except the rich ones, it is only a technical error, Key point is whether he is a qualified doctor? Why Dr. Basmu. no appeal? Which doctor is jailed, Dr.Basmullah or Dr. Baharum??
#8 by bra888 on Sunday, 27 January 2008 - 3:55 pm
To me, I think I’ll argue at the other side of the coin.
According to http://drazwan.blogspot.com/2008/01/dr-basmullah-di-penjarakan.html , all the doctor needs to do to prevent all that trouble was to pay RM 1500 to register the clinic. Now that is considered payable for a doctor’s salary.
Other than that, I have great respect towards the law if everyone plays their part well. The fact is that the doctor did a mistake by not registering his clinic and will have suffer the consequences.
It is also important that clinics should be registered. The case shouldn’t be about the doctor being spared for being a person who has a pleasant personality or whether is he a good doctor. The law applies to everyone.
Let’s not forget that it is the people who will suffer the most if any malpractice happens in hospitals and clinics. Just look at the negligence case happened towards to the baby girl who lost her arm. It happened in a general hospital, therefore no one can argue for a certainty that that doctor who opened an unregistered clinic will never experienced the same despite of how good that doctor is. No one can put a price toward the arm that is lost. Because of this, I strongly believe that the fine of RM120000 is feasible.
Also remember that in the world of medicine, the damages the patient could receive also includes death, and it could be a slow painful death.
Think about it, if the clinic is unregistered, the government cannot track the doctor down to see whether is his practice allowable or not. And if problems were to occur, I guess the blame would be on the government for not doing a good job.
To me, it is a sad and preventable mistake made by the doctor himself. The doctor should ask all sorts of questions like whether does he needs to register his clinic or not. Doctors, after all, work with fragile human life.
If no one seems to see my point, then I guess the main question is, will you trust your life or your loved ones to an unregistered clinic? I know that I will certainly not.
#9 by Jeffrey on Sunday, 27 January 2008 - 5:40 pm
The points raised by bra888 are legitimate. Here the question is not so much of whether he is guilty and should be punished for breaking the law – this is conceded – but after admitting to the offence (of which he was not given the second chance of paying the RM1500 for the license in rectification of his wrongdoing) it is the question of whether the punishment meted in terms of proportionality, fits the gravity of the offence.
The following are legitimate mitigating factors that ought to be considered:
· He may well be a first offender;
· The law (PHFSA) is a new law and although ignorance of law is no excuse for breaking it, in terms of punishment certain consideration to the fact that at this moment those affected may not be aware of the severity of punishment due to its technical infraction;
· It is technical infraction because there’s no evidence in Dr. Basmullah’s case that he has compounded or exacerbated his offense by practicing without license like a charlatan or involved in dispensing illegal drugs or carrying out illegal abortions that the very object of PHFSA seeks to address and prevent. And had he the benefit of legal representation he might have been able to introduce evidence by way of ex-patients to testify what a good doctor he was, if one looks beyond his Al Arqam serban……
· The argument of using him as public deterrence is a matter of contention because PHFSA is still a matter of debate between members of medical profession and MOH whether amendments are needed to iron out some draconian aspects of the legislation relating to punishment. The law has not itself received consensus amongst stakeholders affected. The question of what happens if govt cannot track the doctor of an unregistered clinic down and the further rhetorical question of whether we could trust our life or our loved ones to an unregistered clinic are at the heart of the unresolved current debate between members of medical profession and Ministry of Health over the PHFSA – whether doctors in private practice (Doctors in govt facilities/hospitals are exempted) need to be registered twice with the Medical Council and then again an official in MOH under PHFSA.
Before PHFSA, private doctors like Dr. Basmullah need not have to register with MOH. The Malaysian Medical Council in allowing him to practice by issuance of a valid approved medical practice certificate (APC) would have certified that he has the qualifications to practise and have the information for public on what his qualifications are and where his clinic is, and he is subject to all the usual medical ethics that doctors have to abide by. So the concerns raised in these questions don’t arise with an offender like Dr. Basmullah with an APC.
· Talking of draconian provisions of PHFSA, it would have attracted less attention if Dr. Basmullah was indeed a charlatan practising without APC. The fact is that he had. A fairer PHFSA would be : If a doctor with APC fails to register as required by PHFSA, he could be punished for example by having his APC suspended for 6 months, and if he persists, entirely revoked. Then if he still practices without a APC, no one will bat an eye lid if he were punished by RM120,000 fine or 3 months jail.
#10 by Jeffrey on Sunday, 27 January 2008 - 5:45 pm
On the first point of first offender being mitigating factor, it would be ordinary for a first offender to be spared custodial sentence except in gravest of offences/crime involving bodily injury/harm, immediate harm to public interest and country, or offences of grave moral turpitude.
#11 by Saint on Sunday, 27 January 2008 - 6:15 pm
Justice is only among the equals. The strong will do what it wants, and the weak have have to bear the consequences.
#12 by Jonny on Sunday, 27 January 2008 - 8:06 pm
The doctor get’s jailed.
The person who issued C4 directive is on the loose and on the prowl, just like Sharlinie’s kidnappers.
And we have thousand over STRONG POLICCE FORCE in KLCC area recently.
What a blast for year 2008.
#13 by DarkHorse on Sunday, 27 January 2008 - 9:23 pm
“I call on the Attorney-General to make swift amends of such travesty of justice and invoke the revisionary powers inherent in his office to call up Dr. Baharum’s case to get him out of jail without any moment of delay.”
My 2-cents.
It’s not gonna happen. He will probably be released in two months after about a third remission for good behavior.
#14 by DarkHorse on Sunday, 27 January 2008 - 9:24 pm
Sentencing tends not to be consistent even with the sentencing guidelines.
#15 by cheng on soo on Sunday, 27 January 2008 - 10:01 pm
While everyone will agree n demand that doctors must be professional, do their works deligently, comply 100% to laws, rules etc., n impose heavy fine for small infringement?
Then we may come to US std whereby every doctor buy many insurances, then it may cause patients big sums of money to treat every ailment, even just minor ones, doctors need to carry out many test (many of which may be unnecessary!). So are u prepare to pay say RM200, just for 5 minutes consultation on common flu?
#16 by cheng on soo on Sunday, 27 January 2008 - 10:05 pm
Mistake in the LKS posting, cannot be reading newspaper dated 19 Nov. 2008 now!
[Thanks. 19th Jan. 2008 – kit]
#17 by DarkHorse on Sunday, 27 January 2008 - 11:23 pm
“On the first point of first offender being mitigating factor, it would be ordinary for a first offender to be spared custodial sentence except in gravest of offences/crime involving bodily injury/harm, immediate harm to public interest and country, or offences of grave moral turpitude.” Jeffrey
Don’t know the facts of the case – nor the law.
But if it is a case of willful defiance of the law, there is something to be said about the judge handing out a deterrent sentence which could include a jail term. If you could be sentenced to jail for perjury I don’t see how a willful defiance of the law does not deserve jail time especially when the party is also unable to meet the fine. But if it is a case of the fine being too excessive, then consideration should be given to the quantum – not the law.
YB Kit’s request should be to reduce the fine so he could pay and not serve time in jail which leaves a permanent mark on his career and his life.
#18 by mantaray on Sunday, 27 January 2008 - 11:54 pm
When doctors have to consider renovating their practise to comply with the so called laws, pay “registration” fees of RM1,500, pay for medical insurance, pay for APC, pay for clinic rental, pay for qualified nurses, pay for “properly” bottled drugs as opposed to bulk supply etc etc, don’t be surprised if charges for a simple sore throat in the future will be exorbitant. Since the repercussion for any lack of compliance is severe as in the case of this doctor, the charges will be passed on to consumers.
Don’t expect RM10-15 per consultation any longer. Don’t blame the doctor. They are simply complying with the law. No clinic can operate in the red.
#19 by dranony on Monday, 28 January 2008 - 1:27 am
Jeffrey said at 17:40.33,
“.The Malaysian Medical Council in allowing him to practice by issuance of a valid approved medical practice certificate (APC) would have certified that he has the qualifications to practise and have the information for public on what his qualifications are and where his clinic is, and he is subject to all the usual medical ethics that doctors have to abide by.”
Very good point, Jeffrey!
See this:
http://mmc.gov.my/v1/searchmmc/main_search.php?action=detail&id=14831
Since the APC register states Dr Basmullah’s address of practice, the MMC Register would thus be stating that the address of practice is legitimate. Otherwise, would not the MMC be also “abetting the crime” of registering the doctor with an illegal place of practice?
The Head of the MMC is none other than the Director General of Health, the same person who has great powers to advise the Minister to grant exemption and waive prosecution.
Under Section 103 of the Act, the Minister, “acting in consultation with the DG”, has great “powers to exempt ANY PART of the act, provided that he is satisfied that the healthcare facility will pose any danger to public safety.”
I wonder, even in the present case, if the Minister (presently acting Minister Ong Ka Ting) can simply use this discretion to exempt the doctor from the prosecution, once any revision has been agreed to by CJM or AG?
The discretionary powers of the Minister under Section 103 of this Act are _inordinately large_!
In fact, it is so inordinately large such that it may forseeably invite corruption of power at some point in the future.
Datuk Mahadev Shankar has previously called for shelving of the PHFSA1998 because it put too much power into the hands of the DG (and Minister?).
HOWEVER, this inordinately huge power can also be used in a magnanimous manner in the present case, to simply exempt the doctor from prosecution.
The DG can simply seal the clinic, rendering it no longer available to the public, until it has been properly registered. The public interest would be better served, than sending the poor doctor to jail like a common criminal.
#20 by dranony on Monday, 28 January 2008 - 1:29 am
Those who wish to refer to the PHFSA1998 (.pdf) can go here:
http://tinyurl.com/34rpny
#21 by dranony on Monday, 28 January 2008 - 9:29 am
One wonders if mobile clinics like the one in the link below, has been duly registered under the PHFSA1998.
The PHFSA1998 (not the Regulations2006), states that:
“any premises…other than government…whether mobile or otherwise… temporary or permanent… where health services… including screening and diagnosis…is provided to the public… by medical doctors…” is a “Private Healthcare Facility” and thus must be registered and approved prior to provision of such services.
http://www.thestar.com.my/news/story.asp?file=/2008/1/21/nation/20071880&sec=nation
This mobile clinic, being owned by MCA (a political party, and thus NOT by the government) should therefore be registered under the PHFSA1998, as it satisfies all the conditions of being a _private_healthcare_facility_.
Otherwise, in future all GPs may convert buses into GP clinics too!
I’d like to find out whether this mobile clinic had been registered or not.
The poor doctor whose clinic had not been registered, had been thrown into jail.
#22 by dranony on Monday, 28 January 2008 - 10:01 am
This is another mobile clinic, owned by a non-governmental agency, sponsored by corporate figures, made from a converted bus.
The launching of this converted bus mobile clinic, was officiated by non other than the DG of Health, Tan Sri Dr Ismail Merican.
http://www.nst.com.my/Current_News/NST/Tuesday/National/2126720/Article/index_html
However, being an entity of private ownership, this clinic would also fall under the definition of a “private healthcare facility” as defined under the PHFSA1998, which states that:
“any premises…other than government…whether mobile or otherwise… temporary or permanent… where health services… including screening and diagnosis…is provided to the public… by medical doctors…” is a “Private Healthcare Facility” and thus must be registered and approved prior to provision of such services.
I’d like to know – “has this mobile clinic been duly registered?”
The law requires that the certificate of registration be prominently displayed on the premises. Does this clinic have such a certificate displayed?
Many clinics which HAD been successfully registered, had their registration certificates approved BUT attached with regulations which need to be followed, which require the doctor owners to make renovations to the premises, to conform to the restrictive “micro-management” requirements of Regulations2006 (which had been signed by the Minister of Health, to be read together with PHFSA1998).
I have my *doubts* that these mobile clinics converted from buses could *even possibly* be registered, as it would be near-impossible to satisfy the requirements under Regulations2006 – the same requirements which had been forced upon doctors’ clinics.
These requirements include a minimum floor space area of consultation rooms, minimum ceiling heights, door widths, adequate waiting areas, and _NOT to have stairs_.
If you look at the image which accompanies the MCA mobile clinic, you’d notice that the “waiting area” for patients are merely plastic chairs stacked against the side of the bus – hardly considered “suitable waiting area!”
I fail to see how these converted buses can possibly fulfill these Regulations2006, to be successfully registered.
#23 by dranony on Monday, 28 January 2008 - 11:10 am
Those who wish to refer to the restrictive “micro-management” regulations of the “Regulations2006” which Health Minister signed into law on 24 March 2006, can click here:
http://www.mma.org.my/html/pdf/prv_health_fac.pdf
FYI, the Regulations2006 even regulates:
– the size of the rooms, heights of ceilings, and width of doors.
(standard household doors would fail the requirements)
– where you can put carpets and where you can’t,
– specifies how many millimeters the bottom of your door has to be from the floor!
– the direction your toilet doors swing. (No Kidding!)
– that your mops must be placed on hookstrips
(“from which mopheads have been removed”?!)
– that floors must NOT be swept!
– all clinics must have emergency electricity generators.
– different toilets for patients and for staff
– that there must NOT be stairs in the clinic.
#24 by raven77 on Monday, 28 January 2008 - 1:41 pm
THe PHFSA sounds like a law passed by the late Suharto….where he can usurp powers for himself and do whatever he likes..including killing millions and yet get away with a state funeral…Is the Suharto in the PHFSA ismail Merican, Chua Soi Lek or some unseen hand….or more likely the product of the combination of some dumb health officials…..if we are going to move away from the governance of such tyrants as Marcos, Mao Tse Tung, Mahathir, and Suharto…….the PHFSA cannot exist….it is left to our opposition parties to correct this aberration…..
#25 by dranony on Monday, 28 January 2008 - 2:54 pm
raven77,
You are not far from the truth.
The PHFSA1998 has been written such that:
The Minister of Health can make practically any Regulation that MUST be henceforth be followed by any doctor’s clinic that has registered with it, or otherwise run afoul of the law.
(Section 107. Power to make regulations.)
The Minister of Health can exempt anyone from any section of the Act, without reason.
(Section 103. Power of Minister to exempt.)
The Minister can dismiss any appeal against its decision, without any reason.
The Minister may confirm, vary or rescind the decision appealed against and,
in confirming, varying or rescinding the decision, may impose such terms or conditions as he deems just or necessary. The decision of the Minister under this section shall be final and conclusive.
(Section 101. Appeal.)
The Act gives the Minister the power to give the Director General or any officer appointed under this Act “general directions” not inconsistent with the provisions of this Act “as to the exercise of the powers and discretion conferred on and the duties required to be discharged” by the Director
General or officer under this Act.
One worries about the unlimited scope of these “general directions” “exercise of powers” and “discretion.”
(Section 102. Power of Minister to issue general directions.)
Handing too much power to the Minister and DG to practically compel every doctor to do as they decide later, is like giving “carte blanche” for him to decide on every future issue!
Such unrestricted power may well invite unrestricted abuse of power in future.
Perhaps these too, were the concerns of Datuk Mahadev Shanker earlier when he criticised the Act and called for it to be shelved?
#26 by dranony on Monday, 28 January 2008 - 10:11 pm
fyi, a group of concerned doctors, are campaigning online and raising awareness among the public and netizens, about the plight of Dr Basmullah.
See this “Don’t Jail Doctors!” campaign:
http://medicine.com.my/wp/?p=3037