A Brief Note on Majlis Perubatan Malaysia & Anor v.
Asia Pacific Higher Learning Sdn Bhd [2022] MLRAU 186
The recent decision of the Court of Appeal (CA) in Majlis Perubatan Malaysia (MPM) & Anor v. Asia
Pacific Higher Learning Sdn Bhd upheld the decision of the High Court at the first instance that accrediting agencies owed a duty of care to the
institutions that submit their programmes for accreditation. An aggrieved
institution may institute an action for damages against the accrediting body
for a breach of that duty.
The action in the instant case was brought by the Asia
Pacific Higher Learning Sdn Bhd (the Company) which owns and manages Lincoln University College (LUC). The action was in respect of LUC’s local
medical degree programme and two of its offshore medical degree programmes
which were submitted for accreditation by the Malaysian Medical Council(MMC/MPM). The Company sued the MPM for negligence, breach of statutory duty and
misfeasance in public office in conducting the assessment of the three degrees.
It alleged that MPM had breached the Guidelines of the Accreditation of
Malaysian Undergraduate Medical Education Programmes (Accreditation
Guidelines), the provisions of the Malaysian Qualifications Agency 2007 (Act
679) and the Medical Act 1971 (Act 50) when it conducted the evaluation.
This note summarises the main findings of the CA on the
legal status of MMC’s Accreditation Guidelines, the role and the duties of the
professional body and that of the representative of the professional body on
the Joint Technical Committee (JTC). Although these findings are in respect of
a professional programme, the principles of liability enunciated by the CA
would apply even to non-professional programmes.
The defendants, in this case, were found liable under three
grounds, viz., Negligence, Breach of Statutory Duties and Misfeasance in Public
Office. This note only provides an overview of the liability in each case. It
does not analyse the judgement on these three torts.
Accreditation of Professional Programmes
The Malaysian Qualification Agency Act 2007 treats professional
programmes and qualifications differently from the general programmes and
qualifications awarded by higher education institutions. Generally, the Act
transfers the accreditation powers over professional programmes and
qualifications to professional bodies. The Malaysian Qualifications Agency
(the Agency) has only limited authority over professional programmes or
qualifications recognised by professional bodies. This is seen in many of the
provisions of the Act. For instance, section 2(2) of the MQA Act states that ‘(F)or
the avoidance of doubt, it is declared that any accreditation granted under
this Act shall not be construed as a recognition of the higher education
programme or qualification, or higher education provider, for the purposes of
eligibility to practise as a professional in any professional body.’ Again,
under s. 9, which deals with the Agency appointing accreditation committees, an
exception is made in the case of professional programmes or qualifications (s.
9(13). Under s.35 (2), it is the professional body and not the Agency that
deals with such programmes with regards to their classification and maintenance
under the Malaysian Qualifications Framework. Finally, under s. 50(6) and s. 51
of the MQA Acts, when an application for accreditation is received by the
Agency, the Agency is required to refer the application to the Joint Technical
Committee (JTC) that is appointed by the professional body concerned to make recommendations
to the relevant professional body for the purposes of accreditation. There are
thus, at least four steps that are prescribed by the Act when a professional
programme or qualification is submitted to the Agency for accreditation. First,
a JTC is constituted by the professional body concerned. The JTC then considers
whether or not to accredit the programme. The JTC advises the professional body
accordingly. If the professional body accepts a decision by the JTC to accredit
the programme, the Agency is informed and the Agency issues a certificate of
accreditation.
The statutory approach to professional programmes and
qualifications raises fundamental questions about the integrity of the
accreditation process generally and the competence of professional bodies to
undertake that task. However, these issues will have to be addressed in a
separate note. This note focuses only on the findings of the CA in the case
under discussion. The CA was not invited to question the lack of consistency in
the statutory provisions or of the encroachment of professional bodies into
academic accreditation. The main focus of the decision was on the duties and
liabilities of the JTC, its chair and the professional body in carrying out
their respective roles in the accreditation process.
Professional programmes and qualifications
The Act does not define the terms professional programme or
qualification except as part of the definition of a professional body. Such a
body means ‘any body established under any written law for the purposes of
regulating a profession and its qualifications or any other body recognized by
the Government.’ This is an inadequate definition which is bound to raise
difficulties when dealing with general higher education programmes covering disciplines
coinciding with that of professional programmes. The Code of Practice of
Programme Accreditation (COPPA) also assumes an understanding of professional
programmes without clearly defining the term. The ambiguity is reflected in
COPPA’s statement on professional programmes.
‘The MQA Act 2007 (Act 679)
provides for the accreditation of professional programmes and qualifications to
be conducted through the Joint Technical Committee of the relevant professional
bodies. These include, among others, the medical programme by the Malaysian
Medical Council, engineering programme by the Board of Engineers Malaysia, and
architecture programme by the Board of Architects Malaysia. The Act also allows
these bodies to develop and enforce their own standards and procedures for
these programmes, albeit broadly in conformance with the MQF. However, MQA and
the professional bodies maintain a functional relationship through a Joint
Technical Committee as provided for by the MQA Act. ’ (COPPA 2nd
Edition, page 4).
It is not enough for the Agency to maintain a functional
relationship, it has to be at the centre of the accreditation, whatever role is
allocated to the professional body. And in any case, ‘functional relationship’
does not explain the Agency’s exclusion from the process.
Accreditation of Professional programmes
Chapter 2 of Part VIII of the Act deals with the
accreditation of professional programmes. Under the prescribed provisions, accreditation
is conducted through Joint Technical Committees that are established by the
professional body concerned. This process, in fact, creates a separate
accreditation machinery that is dictated by the professional body. The earlier
quoted COPPA statement only offers a partial justification for the different
processes.
Section 51 of the MQA Act mandates a representative of the
Agency to be represented on the JTC, but the section allows the professional
body to determine who else and how many more are appointed. Further, the Act is
silent on the role of the Agency’s representative on the JTT. Also, under s. 51
of the Act, the JTT makes its recommendations to the professional body which
then determines whether or not to grant the accreditation. The Agency has no
role in the process than expediting the approval by issuing the certificate of
accreditation. The professional body is also empowered to withdraw
accreditation if recommended to do so at some later stage by the JTT. As stated
earlier the powers vested on the JTT encroach on the powers of the MQA as
prescribed by the MQA Act. It is unlikely that these powers will withstand a
legal challenge if such is brought.
The Case before the Court of Appeal
As noted earlier the case on appeal before the CA originated
in the High Court when the Company that owned Lincoln University College (LUC),
brought an action against the Majlis Perubatan Malaysia (MPM) and the
representative of the MPM on the JTT regarding the accreditation of two medical
programs of LUC. MPM, a statutory body established under the Medical Act 1971
to regulate the medical profession is also responsible for the recognition of
medical degrees awarded by local and foreign universities and the registration
of medical practitioners.
The institution claimed that the MPM and its representative
on JTC were negligent, in breach of statutory duty and misfeasance in public
office in rejecting its application for accreditation of its medical programme.
The specific allegation was that MPM and its representative were in breach of
the Guidelines of the Accreditation of Malaysian Undergraduate Medical
Education Programmes (Accreditation Guidelines), the provisions of the
Malaysian Qualifications Agency 2007 and the Medical Act 1971 in the process
and conduct of evaluation of its local medical degree programme and two of its
offshore medical degree programmes.
Important conclusions reached by the CA
The following aspects of the decision have an important bearing
on the accreditation of professional programmes and the responsibility of the
professional body, the JTT and its members in the way they carry out their
respective roles.
The Accreditation Guidelines
The CA accepted the High Court’s interpretation of the
status and role of the Accreditation Guidelines. The MQA Act, it noted was
silent on the procedures and does not prescribe any criteria to be applied by
the MPM for the purpose of accreditation. Hence the adoption by MPM of the
Accreditation Guidelines meant that the Guidelines established the basis
for assessing medical programmes for accreditation. Importantly, the CA held
that the Guidelines provided guidance to the plaintiff as a provider of medical
programmes, on how MPM exercises its powers under the MQA Act to grant or to
refuse accreditation of its local and off-shore programmes. In the CA’s
opinion, even if the Guidelines did not have the force of law, in that there
were no punitive consequences that followed from its non-observance, the MPM was duty bound legally to comply with the Guidelines in conducting the
accreditation exercise.
The Functions of the Professional Body
The CA’s observations on the roles respectively of the
professional body, in this case, the MPM, the JTC and the MQA in the
accreditation process are instructional about how professional programmes are
processed for accreditation. The CA noted that under the MQA Act, the Agency is
required to refer any accreditation of a professional programme to the relevant
professional body. The professional body is then required to establish the JTC
whose members must include an officer of the MQA and such other persons as may be
deemed necessary by the professional body. These other persons, the CA held, are
to be determined by the first defendant. It is the role of the JTC to consider
the application and advise the professional body on whether to approve the
accreditation of the programme concerned or to refuse accreditation. According
to the CA,
‘This simply means that the JTC
needs to deliberate and make recommendations to the first defendant (the MPM)
before the first defendant makes a decision whether to approve or refuse
accreditation. It must be borne in mind that the JTC only makes recommendations
to be considered by the first defendant. The first defendant, however, is not
bound by the recommendations of the JTC. Be that as it may, it will be wrong in
law for the first defendant to make a decision to approve or refuse
accreditation without going through the JTC. The law requires the first
defendant to make a decision under subsection 52(1) (of the MQA Act) only after
receiving recommendations from the JTC.’
The CA goes on to conclude that the accreditation is granted
by the professional body (the MPM in this instance) and not the JTC or the MQA.
Consequences of noncompliance with the Guidelines
1.
Action in Negligence
The CA held that the MPM in
exercising its power under subsection 52(1), was under a legal obligation to
consider the recommendations by the JTC. Further, both the MPM and the JTC
were required to adhere to the criteria and procedures set out in the
Accreditation Guidelines in making the recommendations. Non-compliance with the
Guidelines constituted a breach of the duty owed to the institution as it was settled
that a common law duty of care can arise in the performance of a statutory
function, as in this case.
The Company’s claim for negligence
was based on the breach of the Accreditation Guidelines during the First and
the Second Survey Panel Visits by the JTC. These visits were prescribed in the
Accreditation Guidelines, and they were to be carried out during different stages
of the delivery of the programme after it was approved. Visits were to be made
after approval, after the recruitment of students, a pre-clinical visit, a post-clinical visit and a visit for full accreditation of the programme when the
first batch of students graduate.
In respect of the first visit, the
Company’s allegation of negligence was based on the grounds that the JTT had
failed to give the institution the stipulated four months’ notice prior to the
visit. The plaintiff was only informed on 5 May 2011 of the visit to evaluate
the programme MQA/PA 0927 on 13 May 2011 and 14 May 2011.
The court found that the failure
on the part of the TTC to observe the guidelines in respect of the conduct that
constituted the breaches alleged by the plaintiff amounted to a breach of the
duty owed to the institution. Failure to comply with the Accreditation
Guidelines had denied the plaintiff on both occasions, adequate time to prepare
for the visits. In both instances, the plaintiff was given barely one week to
prepare for the visits. The CA rejected the MPM's argument that the Guidelines
only applied to the full accreditation visit and not the first and second
visits. It held that the 4 months' notice is applicable to all visits for the
accreditation of a medical programme as it gave the institution the time to
prepare the documentation for the visit.
There was also a failure to give a 4
months notice for the Second Survey Panel Visit from 29 to 30 April 2013. Notice
was only issued on 22 April 2013.
Apart from the failure to give
adequate notice, the plaintiff Company also raised other instances of non-observance
of the Accreditation Guidelines by the MPM and its appointed officer on the
JTC. The CA regarded all these breaches of the guidelines as acts of negligence
by MPM (the first defendant) and its officer on the JTT panel (the second
defendant) as they breached the duty of care, they owed to the plaintiff
Company.
2.
Is the professional body responsible for the
actions of its representative on the JTC?
It was argued on behalf of the
defendants (the MPM and its representative on the JTC) that the relationship
between the first (MPM) and second defendants (MPM representative on the JTC)
is not akin to employment so as to make MPM vicariously liable for the negligent
act of its representative on the JTC. The court found that the second defendant
was at all material times a member of the first defendant nominated pursuant to
s. 3 of Act 50 and he was a representative of the first defendant for the two
Survey Visits. He did not draw any salary or allowance from the first defendant
and neither did he have any contract of employment with the first defendant. The
High Court in the first instance had imposed vicarious liability on the first
defendant for the tortious act of the second defendant. The CA did not disturb
the High Court’s finding on this question but reinforced the MPM’s liability
on the grounds that its representative on the JTC was its agent. ‘The second
defendant was directly under the control of the first defendant in so far as it
concerned the two Visits and the negligence took place while the second
defendant was conducting the Visits as instructed by the first defendant.’ The
MPM and its agent on the JTC were therefore both liable for negligence.
3.
Liability under other grounds
The MPM was also found liable for breach of statutory duties concerning
their duties under the MQA Act and under the Medical Act. The second defendant (MPM’s
representative on the JTT) was held liable for the tort of misfeasance in
public office. The CA held that the members of the first defendant on the JTC would
be regarded as public officers for the purposes of the tort of misfeasance in
public office. Sections 5 and 6 of the Medical Act and ss 109 and 110 of the
MQA Act recognised the members of the first defendant as public servants/public
officers in the discharge of their duties as members.
Some final points
The decision of the CA has important implications for the
higher education accreditation process as laid down in the MQA Act. First, both institutions and accreditation bodies have to take the various guidelines
seriously and adhere to their provisions both in applying for accreditation ad
in the running of the programmes. Although in the instant case, the court was
only dealing with the MPM'’s Guidelines of the Accreditation of Malaysian
Undergraduate Medical Education Programmes, the same reasoning can be applied
to other guidelines such as the Code of Practice for Programme Accreditation
(COPPA) and Code of Practice for Institutional Audit (COPIA). Because of the legal
status attributed to them, these guidelines may also be relied upon, it is
submitted, by the staff of higher education institutions and the students
registered with them to ensure that the educational process and the conduct of
those managing the institutions and the regulatory authorities adhere to their
provisions. In other words, institutions can be compelled to conform to applicable
guidelines and any conditions imposed on institutions by accrediting
bodies.
Outside the issues raised in the case lies the important
question of the role of professional bodies in the accreditation of educational
programmes. There is a real concern that the MQA Act’s provisions on
professional programmes and qualifications may embolden further encroachment by
professional bodies into the realm of higher education. That, it is submitted, is
a development to be discouraged.
