The Doctors’ Dilemma

 

The ineptitude in the handling of the employment of young doctors in the medical service is mind-boggling. The healthcare system is collapsing in the face of the pandemic. Healthcare workers are being strained to the limit of their capacity. The daily count of infections and deaths does not put a number on the efforts of these valiant workers. Now, eighteen months into the pandemic, there is still no visible signs of when the pandemic will be brought under control. Instead, a danger looms of the system itself failing. Against this background, instead of treating the additional numbers of qualified doctors as a boon to the health system and the nation as a whole, decision-makers are embroiled in an unnecessary controversy about the tenure of these young doctors and their future careers. If matters are not quickly resolved the situation would alienate a whole generation of doctors and stifle their enthusiasm and motivations.

This country needs more doctors regardless of the doctor to population figure standing at 1:454 (2020). With a dispersed population and many living in rural areas, the WHO ideal of 1:400 does not say anything about whether public healthcare reaches those in remote and fringe areas. The ideal figures also say nothing about how these ‘ideal’ figures will cater for extraordinary situations like those created by a pandemic like that being experienced now. Total Covid-19 cases from March last year exceed 900 thousand. New positive cases reported daily exceed 10 thousand patients. The system is under great strain, not least because of the shortage of doctors. A sufficient number of skilled and motivated health workers is critical to the performance of any health system, particularly now in the COVID‑19 pandemic. Faced with similar situations, other countries, including OECD countries, have cut the bureaucratic red tape to press doctors who are outside formal systems into service to fight the pandemic.

Unfortunately, very often in this country, official decisions on important social matters as those now concerning the employment of doctors in the public service are often influenced by issues of race, religion, and political expedience. In the present case, an additional, widely held reason preventing a rational decision is that the doctors graduated from private universities. This is not based on the quality of their education but simply that they are the products of ‘money-making’ enterprises. For that reason alone, it is being proposed by some that the numbers qualifying from private institutions must be reduced in the future to prevent similar future predicaments. This is an untenable argument which, the sooner it is put to rest the better.

Private universities, including those with medical schools are the product of an evolution that was shaped by the unfulfilled demand for higher education. A large section of our population, at a critical moment in their lives, would not have had the opportunities for further education after school but for the offerings of private colleges. From around the 1980s, long before the law allowed the creation of private universities, private colleges in this country changed the very nature of higher education as traditionally defined to make it more accessible to learners. The innovations private colleges introduced (too many to repeat in this article), separated the substance of higher education from the physical trappings of the university and allowed a university-level education to be delivered outside the lecture rooms and even outside the country of its location. What followed was a historical transformation that democratized higher education and brought it within the reach of our school-leaving youth even as their growing numbers found them no place in local public institutions.

The private sector of higher education in this country must be respected for its contribution to higher education. Many of the owners of these private institutions are there not just to make money. They set up colleges and universities out of a commitment to providing education and with philanthropic motives. The development of the private sector of higher education, which now hosts more than half the tertiary education population in this country, no doubt, also played an important role in stilling potential social disquiet that would have arisen because of the unmet demand for higher education. Reviewing the sector in 2008, the EPU report entitled, Strengthening Private Education Services in Malaysia, 2009, described the private education landscape then as;

‘. . . a thriving sector widely recognized in international academic circles as one of the most innovative and progressive in the region. Education experts and investors consulted during the course of this project have highlighted Malaysia as one of the most “open” regimes and more “attractive” markets in Asia. Among its achievements are;

Split-degrees and international transfer programs, particularly the proliferation of ‘twinning’ programs with premier international institutions are often heralded as some of the innovations introduced by the private education entrepreneurs; Malaysia is the 10th largest exporter of education, catering to 80,000 foreign students or 2% of the global market share.

Most of the achievements reported by EPU were realized before the passing of the Private Higher Educational Institutions Act in 1996 (Act 555). The far-reaching policy changes implemented by the Act set the pace for the next big leap in the development of the private sector. The Act legitimized private education and assigned it an equal role with that of public institutions. It allowed, for the first time in the country’s history, for private universities to be established. The significance of that move was the government’s relinquishment of its long-held monopoly over universities. Because of this bold step and other reasons, Act 555 radically altered the landscape of higher education. The provisions on private universities also allowed foreign universities to set up branch campuses in this country. As a result of these changes the private sector of higher education today is so diverse that it represents all the main systems of the English-speaking world. The same factors that attracted foreign universities also attracted foreign students in large numbers into local universities and colleges. The stimulus for these radical developments was the presence in 1996 of a mature, locally developed, private higher education system that was recognized internationally. It was a system that was well prepared to build on the opportunities created by Act 555.

The private sector of higher education is subject to tight control by different regulatory authorities established by Act 555 and other legislation. An important part of the regulatory system is the accreditation of the courses which is by statute vested in an independent agency – the Malaysian Accreditation Agency (MQA). Under the MQA Act, medical and other professional qualifications can only be accredited with the approval of the related professional body. In fact, the relevant provisions of the MQA Act 2007 gives the MMA and the medical profession a greater say on accreditation than the Agency itself.

Many of the doctors at the heart of the present controversy would be graduates of the private medical schools established under the regime of Act 555. The predicament they face is not of their making but that of a failure by the Health Ministry to anticipate the increased output of doctors from the private sector. The doctors from private medical schools are entitled to the same treatment as their counterparts from public medical schools. Their absorption into the medical health service on traditionally established terms should not be delayed any further.

One final point. The first medical school in this country, the King Edward VII College of Medicine was established in 1905 only because of the persistence and funding provided by philanthropic businessmen of that era. Malaysia’s first university, Universiti Malaya now claims its ancestry to that institution.

Franchised Degree Programs - Pitfalls to Watch

The franchised degree is one of the most transformative concepts to have emerged in higher education. Its formulation as a legitimate mode of delivery of a university degree took place in the last decades of the 20th Century fostered by the rising demand for higher education in Asia and the problem of surplus capacity in UK and US universities. It changed the very nature of university education and the idea of the university by separating the educational program from the university offering it and making the program portable and delivered in places remote from the university. Starting with undergraduate degrees, the concept expanded to include postgraduate degrees right up to the doctoral level.

In the franchise concept, a local private college teaches the full three or four years of a degree program from a university, often a foreign one. They are described as '3+0' or '4+0' degrees to distinguish them from '2+1' or '3+1' Twinning programs. The full franchised course is delivered by the local college but the degree is awarded by the university. The university franchises the program to the local college under a written agreement that stipulates quality and other issues concerning the delivery of the program in the local college. The models of arrangement may vary from one university to another but generally, they would deal with the duration of the franchise, the selection of staff to teach the courses in the program, the required resources to teach the program and the management of student assessments are. In some arrangements, the university may also undertake to teach parts of the course in the local college assigning faculty from the university or another institution. Franchise agreements might also confer full assessment rights to the local college with supervision by the university or alternatively, the university may reserve those rights or part of those rights to itself.

Students in a franchised course are registered as students of the university and are subject to the rules and regulations of the university. Students must, therefore, pay special attention to the university's graduation requirements, its disciplinary rules and procedures. Local colleges may not explain this fact adequately to their students, relying instead on students reading the college's published regulations. The students must also note that they are at the same time bound by the college's regulations and local laws governing the conduct of students in local institutions (Private Higher Educational Institutions Act 1996). There may be conflicts and inconsistencies between the two sets of regulations and it is advisable that students are made aware of this. Ideally, a franchise agreement would deal with the duality of regulations affecting the students and make provisions in the franchise agreement to minimize or remove conflicts and inconsistencies. In any case, local laws cannot be overridden by the university's regulations or by the terms of the agreement between the college and the university.

The franchise agreement determines the mutual rights of the university and the local college. Important provisions on the duration of the franchise, the university's rights to terminate the agreement before the full term and the rights of students upon the occurrence of these events are all written into the franchise agreement. These terms have an impact on the students registered in the program but students are generally not informed of these terms. There have been instances when student rights have been seriously prejudiced by the early termination agreement of these agreements. Regrettably, there is very little in the regulatory laws of education that deal with such situations, leaving students with no alternative but to accept the solutions handed to them by the college.

Franchised programs must be approved by the Ministry of Education through the same procedures that apply to other programs delivered through a private higher educational institution. The admission requirements for the program will be determined when the program is approved by the Ministry of Education. Other conditions may also be imposed in order to make the franchised program conform to local regulations. The franchised program is also subject to all the quality assurance provisions under Malaysian laws. Typically, approval is only given if the program meets the standards for Provisional Accreditation as determined by the Malaysian Qualifications Agency or MQA.

The innovations in the franchise concept contributed significantly to the development of higher education in this country. It raised the status of private colleges to degree-teaching institutions and raised the status of teachers to university lecturers. Its continued presence adds a valuable dimension to Malaysian higher education by enhancing its international character. In this role, it stands at the same level as the foreign branch campuses that operate in this country

Reform and its Proponents

The New Government's promise to reform education took off in earnest this year with a flurry of activities centered around a number of committees that were formed to look into this and that in education. In higher education, the focus appears to be on the harmonization of the public and private sectors of higher education. The plurality of views on this issue come from different directions. From the top, the proposals are about autonomy, academic freedom and the freeing of universities from government control. From the other end, the concerns are more pedestrian, more practical, if you like. Issues like teaching permit, the speeding of bureaucratic processes and lesser control of the academic processes have been raised by representatives of the private sector. Surprisingly, I have not heard of any discussions on the harmonization of language policies across the sectors.

The opinions and 'findings' so far published only tinker with the issues. Any real proposal to harmonize the two sectors must examine the reasons for the division of the higher education sector and more importantly the root policies that forced that division. There is a serious misunderstanding underlying current discussions which is that the private sector was created by and for the well-to-do in our society and has no place for the poor. This is an inaccurate way to describe the origins of the private sector which evolved to meet the needs of a large section of our population that could not find its way into public sector institutions.

The main issue in higher education, which has always been controversial and constituted a large chunk of the political fodder for the racial polemics of this country is ACCESS to higher education. Any move towards harmonization must first deal with that very, very important issue. With over 800 post-school institutions in the country, we can no longer hide behind capacity issues. A fair and progressive approach to providing educational opportunities to all will ensure harmonization. Without a fair policy on access, nothing will really be harmonized, let alone reformed.

Classification of Institutions Under the Private Higher Educational Institutions Act 1996

The Private Higher Educational Institutions Act 1996 (the Act) defined all institutions established under its provisions as private higher educational institutions.

The Private Higher Educational Institutions (Amendment) Act 2017 introduced definitions for colleges and foreign branch campuses that are established under the Act. With the new definitions added by the Amendment Act, PHEIs now fall into six categories, namely; colleges, universities, university colleges, branch campuses of private universities and private university colleges, branch campuses of foreign universities and branch colleges.

The Amendment Act defines ‘College’ as a private higher educational institution without the status of a University, University or University College or a foreign branch campus.’

The ‘Foreign branch campus’ is defined as ‘a branch of a foreign University or University College that is established’ under the Act. The Act makes no further reference to a foreign branch campus in any of its provisions. Neither are there any provisions in the Act to determine what would constitute a branch campus of a foreign university or for the need by the parent university to acknowledge its relationship with the foreign branch campus. The Act does not stipulate criteria to qualify as a foreign branch campus, except to include foreign branch campus in the general definition of a private higher educational institution as shown in the last paragraph. There are also no express provisions in the Act that classify the foreign branch campus as a university. The Act defines University and University College as a private higher educational institution conferred with the status of a University or University. This is probably only an oversight. In any case, the university status of the foreign branch campus may be implied from the definition of College and the provisions of section 21 and section 44 of the Act. The latter section, as amended, reads as follows;

“Award of degree

44. No private higher educational institution may award a degree unless such private higher educational institution is a University or a University College or a foreign branch campus.”(Emphasis added).

The Amendment Act redefines ‘University and University College’ as ‘a private higher educational institution conferred with the status of a University or University College under s. 21’ of the Act. The definition before the amendment was, ‘“University” and “University College” mean a private higher educational institution conferred with the status of a University or University College under section 21, and include such private higher educational institution which is affiliated to a University or University College whether within or outside Malaysia, conferred with the status of a University or a University College.’ It is doubtful if s. 21 of the Act confers the status of university on any institution. A literal interpretation of the section only requires ‘prior approval of the Minister’ to be obtained for the establishment of a private higher educational institution with the status of a university, which is the same requirement for the establishment of any private higher educational institution under s. 6 of the Act. The Act does not empower the Minister to confer any status on the institutions whose establishment he approves. The Minister’s role in the establishment of any type of private higher educational institution is limited to approving the establishment and no more. The decision to establish a university or college or any other institution recognised by the Act is on the applicant.

All private higher educational institutions, whether university or college, fall within the general definition of a private higher educational institution under the Act and they are all, without exception, subject to all the provisions of the Act. (s. 23 of the Act).

‘Private higher educational institution’ is now redefined as ‘. . .  an organization or educational institution, including a University or a University College or a foreign branch campus or College’, approved and registered under this Act, which is not established or maintained by the Government.’

With one exception, the Act is the only regulatory instrument that permits the establishment of a higher educational institution that is not established and maintained by the government. The exception, is an institution established under s. 5A (2) of the Universities and University Colleges Act 1971 (UUCA). Under that subsection, the Yang di-Pertuan Agong may, on the advice of the Minister, by order published in the Gazette, authorize the establishment of any higher educational institution having the status of a University, whatever its name or style, if he is satisfied that it is expedient in the national interest that such higher educational institution should be established. There is an important difference in the process and status of a university that is created under s. 5A (2) and universities that are created under the provisions of s. 6, which is how all public universities are created under the UUCA.

Under s. 6(1) of the UUCA, the Yang di-Pertuan Agong may, on the advice of the Minister, by order published in the Gazette, authorize the establishment of any higher educational institution having the status of a University, whatever its name or style, if he is satisfied that it is expedient in the national interest that such higher educational institution should be established.

Section 7(1) of the same Act then provides that ‘upon the coming into force of the Incorporation Order made under section 6, a higher educational institution having the status of a University, with the name and style assigned to it by the Order, shall be deemed to have been established, and by which name the Chancellor, the Vice-Chancellor and the members for the time being of the Board and the Senate shall be deemed to have been constituted a body corporate’ with all the attendant powers of a corporation. The establishment of the university and the incorporation of the university are contemporaneous processes under the UUCA.

In the case of universities created under s. 5A (2) of the UUCA, the Yang di-Pertuan Agong only ‘authorizes the establishment of any higher educational institution having the status of a University, whatever its name or style’. The authorization does not incorporate the university, only that it may be established. This by itself would not have prevented the university established under 5A (2) from being established and maintained by the Government. However, s. 5A (1) expressly declares that the provisions of UUCA shall not apply to any higher educational institution with the status of a University which is authorized to be established under subsection 5A (2). The result of this provision is that a university established under 5A (2) is excluded from those provisions of the Act dealing with Grants in Aid from the Parliament and other privileges in respect of establishing a campus or acquiring land for the purposes of the university.  What is unusual in all this is that the university created under s. 5A (2) is placed in a limbo between the UUCA and the Private Higher Educational Institutions Act 1996 because neither Act applies to it.

Apart from the unusual case of the university formed under 5A (2), the Universities and University Colleges Act 1971 is a template legislation for the establishment of public universities and university colleges. But not all government-funded universities are established under the UUCA. Government funded universities are also established through special Acts of Parliament, as is the case with the University Institute Technology Mara (UiTM).

Other than universities and university colleges, public-funded higher education institutions include polytechnics, community colleges, teacher training institutes and scores of colleges.