The right to be heard is fundamental in judicial review proceedings; failure to accord this right renders orders a nullity.

Nallini Pathmanthan FCJ:

[1] This appeal raises a conflict between two seemingly contradictory principles which the courts need to balance. Between the policy of avoiding the opening of the floodgates to endless litigation by upholding finality in judicial decisions on the one hand, and on the other, protecting the sacrosanct rights of an affected person to be accorded the right to be heard in his own defence; which should prevail? Ultimately based on the particular facts of the instant appeal, we decided in the interests of the affected person, the appellant before us, whose livelihood would be threatened by the order obtained by the 1st respondent against him in absentia. We append the reasons for our decision below.

Salient Background Facts

[2] At the material time, the appellant before us, Dr Lourdes Dava Raj Curuz Durai Raj ('Dr Lourdes') was the Chief Medical Service Officer and person in charge of Assunta Hospital while the 1st respondent before us, Dr Milton Lum Siew Wah ('Dr Milton') was then a Visiting Consultant Obstetrician & Gynaecologist at the same hospital.

[3] The 2nd respondent before us is the Malaysian Medical Council ('MMC'), a statutory body established pursuant to s 3 of the Medical Act (' MA ') 1971. The MMC's dual functions are to register medical practitioners and to regulate the practice of medicine (see s 4 of the 1971) and in furtherance of its functions, it has the power to regulate the standards of practice as well as the professional conduct and ethics of registered medical practitioners (see s 4A(2)(b) and (c) of the 1971).

[4] It is not in dispute that Dr Lourdes circulated clinical summaries of a total of six patients to doctors for the purpose of discussion during Medical and Dental Advisory Committee meetings at Assunta Hospital on 23 September 2009 and 9 December 2009. This committee was tasked with studying the morbidity and mortality in those cases with the end aim of improving the standard of medical care in the said hospital.

[5] Dr Milton was among the doctors who received the summaries. He took exception to the fact that Dr Lourdes circulated the said documents without a cover of confidentiality and without informing the committee that the prior consent from the patients or their next-of-kin had been obtained. This, he contended, was a breach of confidentiality and a violation of s 2.2.2 of the MMC's Code of Professional Conduct, s 3.2 of the MMC's Guideline "Good Medical Practice" and ss 1, 2, 8d and 9 of MMC's Guideline "Confidentiality". He complained to the then President of the MMC, Tan Sri Dr Hj Mohd Ismail Merican, in a letter dated 31 December 2009.

[6] Based on Dr Milton's complaint, the Preliminary Investigation Committee I of the MMC charged Dr Lourdes with infamous conduct in a professional respect, as informed in the letter dated 25 March 2013. In the same letter, Dr Lourdes was requested to elect either to state his defence before the said Preliminary Investigation Committee or to have the matter referred to the Malaysian Medical Council for an inquiry. He chose the former and the inquiry was held on 20 May 2014.

[7] Before the inquiry, Dr Lourdes affirmed a statutory declaration on 19 May 2014. He explained that he had been newly appointed as the person in charge of the hospital at the material time, and only realised that he may have breached the confidentiality requirement when Dr Milton raised this issue during the second meeting on 9 December 2009. He averred that thereafter, he stopped doing so and endeavored to strictly adhere to the guidelines and relevant legislation.

[8] In his defence, he averred that it was the doctors attending the committee meeting who requested the clinical summaries of the presenting doctors prior to the meeting. Despite being aware of doctor-patient confidentiality, he did not realise it was applicable in the context of a mortality and morbidity assessment meeting. He asserted that he disclosed patient names not with any mala fides