I used to think that the days of government knows best were over, but it appears that in the Ministry of Health (MOH), there is still a touch of arrogance in policymaking.
It emerged that amendments to the Poisons Act 1952, which regulates medicines, were tabled for first reading in the Dewan Rakyat last November 25. MOH didn’t announce the tabling of the Poisons (Amendment) 2019 Bill; it was simply listed on Parliament’s (new and improved) website, among other Bills.
Physician and dentist groups were outraged upon reading CodeBlue’s report about the Bill that proposed criminalising doctors, dentists, and vets for declining to issue medicine prescriptions requested by their patients. The Poisons amendment Bill proposed a whopping maximum five years’ jail, a fine of up to RM50,000, or both just for refusing patients’ prescription requests.
Even the international community – the World Medical Association and the Commonwealth Medical Association – weighed in and slammed the criminalisation of doctors’ refusal to issue prescriptions, saying that this issue was an ethical, not criminal one.
Some people had issues with CodeBlue’s headline that they considered sensational – Jail Awaits Doctors Who Refuse Patients’ Prescription Requests – but I humbly submit that the fact remains that incarceration and fines (heavy sentences, at that) related to mandatory prescriptions upon request are stated in the proposed law.
Even if the Bill has a new provision on compounding offences, this is subject to the discretion of the minister, the public prosecutor, and MOH enforcement officers. Any of these parties can still choose not to compound the offence of declining to issue prescriptions upon request. Or, if charged in court, the judge can still choose to impose the maximum punishment of five years in prison, as provided for under the law.
Health Minister Dzulkefly Ahmad, Deputy Health Minister Dr Lee Boon Chye, and Health director-general Dr Noor Hisham Abdullah, who also heads the Malaysian Medical Council (MMC) that regulates medical practice in the country, may not be heartless men, but they won’t stay in their posts forever.
There may be a new minister, director-general, or even a different government of the day in future who have the law to guide them, a piece of legislation that makes it a criminal offence for doctors to decline to issue prescriptions upon request. What then?
Plus, it’s not as if doctors haven’t been sentenced to prison before under the Private Healthcare Facilities and Services Act 1998 over their clinic practice.
Several doctors’ groups – like the Malaysian Medical Association (MMA), the Medical Practitioners Coalition Association of Malaysia (MPCAM), and the Federation of Private Medical Practitioners’ Association Malaysia (FPMPAM) – claimed that they weren’t consulted before the Poisons amendment Bill was tabled in Parliament. But Dzulkefly insisted that MOH has discussed mandatory prescriptions upon request with the medical fraternity.
Former MMA president Dr Milton Lum argued that physicians’ and dentists’ prescription practice is already regulated by the Code of Professional Conduct by the MMC and the Malaysian Dental Council (MDC) under the Medical Act 1971 and the Dental Act 1971. Refusing to issue prescriptions upon request, he said, may border on professional misconduct leading to disciplinary action by the MMC or MDC.
Legislation should be the last resort in motivating behavioural change.
If the government wants to encourage private general practitioners (GPs) to issue prescriptions, then it can easily deregulate clinic GPs’ consultation fees – which have been capped by legislation at a pathetic rate of RM10 to RM35 since 1992 – so that physicians don’t have to rely on selling medicines to sustain their business. An open market will ensure that GPs charge competitive rates for their consultation.
Then, doctors will consistently issue prescriptions, even if their patients don’t request for it, and pharmacists can dispense the medicines prescribed by doctors because the main business of GP clinics will be providing medical consultations.
Dispensing separation will then occur naturally, a standard practice that Malaysia should have done decades ago.
Enacting legislation isn’t just about imposing heavy jail sentences or fines.
If laws don’t have public support, the government will need to spend time and resources to enforce punishments. Enforcement of any laws in Malaysian culture is usually poor. But if the government succeeds in obtaining buy-in from stakeholders before drafting legislations, such laws will be automatically followed, regardless of the punishments.
Malaysia should follow the UK’s practice – upon which our Westminster Parliament system is based – and circulate draft Bills among stakeholders for improvement so that the best version, supported by the public, can later be tabled officially in Parliament.
Lawmaking is a public process. We need to stop treating lawmaking as the private domain of civil servants, ministers, the Attorney-General’s Chambers, and lawmakers in Parliament or state legislative assemblies.
The public must be able to have a direct say in Bills, beyond indirect representation through their Member of Parliament or state assemblyperson. This can be done by pushing draft Bills through various Parliament select committees, who can call for comments from stakeholders and the general public, before tabling them. Parliament should immediately set up a select committee to monitor MOH.
Dzulkefly’s decision to defer the second reading of the Poisons amendment Bill to March next year, pending discussions with stakeholders, is welcome, though the whole brouhaha could have been avoided from the start. If the Bill hadn’t been spotted upon first reading, it would likely have gone through subsequent readings and been passed immediately on the same day due to the party whip system, even if some government MPs – like Bagan Serai MP Dr Noor Azmi Ghazali and Bandar Kuching MP Dr Kelvin Yii – were against the Bill.
MOH should seek feedback not just from GPs, but also pharmacists and patients. If the new Bill is significantly different from the version tabled in Parliament, it will likely have to be retabled all over again for first reading. All stakeholders should know how this new Bill will look like before it's tabled officially in Parliament.
The government must stop trying to sneak in Bills with potentially huge consequences. Declare intentions to legislate, get support from stakeholders, lawmakers, and the public, and then announce the Bill so that people can celebrate when it is finally gazetted into law. That's how you mark a legislative triumph as a lawmaker.
And that’s how you involve the people in taking ownership of legislation.