Accreditation Agencies Owe a Duty of Care to Higher Education Institutions

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 2^nd 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.