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2025 MarsdenLR 1641
HIGH COURT MALAYA PENANG
RAMANI VISVANATHAN & ANOR – Appellant
Versus
DR FAWZIAH TAN SRI DATO ISHAK & ANOR – Respondent
[Judicial Review Application No: PA-25-63-12/2024]
Only registered persons under the Medical Act 1971 possess standing to appeal against decisions by the Malaysian Medical Council, rendering unqualified applicants without locus standi in judicial review applications against such decisions.
Headnote:(A) Medical Act 1971 - Section 30 and Section 31 - Judicial review application seeking to quash the decision of Malaysian Medical Council that found the respondent not guilty of professional misconduct - The applicants lacked locus standi to initiate the judicial review as they were not aggrieved persons under s 31(1) of the Medical Act 1971. (Paras 14-26)
(B) Locus Standi - The husband, as the complainant in inquiry, and the wife who did not testify or lodge a complaint, do not qualify as aggrieved persons - Standing to appeal against MMC decisions is confined to those made with respect to individuals registered under the Medical Act. (Paras 14-22)
(C) Distinction between Judicial Review and Appeal - An application for judicial review is distinct from an appeal, and the proper procedure to challenge the MMC's decision must be adhered to, thus judicial review was not the appropriate avenue for contesting charges dismissed against the respondent. (Paras 24-30)
(D) Allegations of Negligence - The issues raised regarding negligence are irrelevant in the context of the disciplinary proceedings which focus on professional misconduct, thus cannot serve as a foundation for the judicial review. (Paras 80-81)
Facts of the case:
The applicants filed a judicial review application challenging MMC's decision that R1 was not guilty of professional misconduct following an inquiry into alleged negligence related to a medical procedure performed by R1 on the wife. The couple had previously settled a civil suit without R1 admitting liability.
Findings of Court:
The court found that the husband had the opportunity to present his grievances during the inquiry but lacked sufficient ground for judicial review since he was not an aggrieved person under the law. The application for judicial review was dismissed with costs awarded.
Issues: 1. Did the applicants have locus standi to initiate the review? 2. Were the allegations of negligence relevant to the inquiry by the MMC?
Ratio Decidendi: The court ruled that since neither applicant was an aggrieved party under the Medical Act, and the allegations of negligence were not pertinent to the professional misconduct inquiry, the judicial review application was devoid of merit.
Result: Application for judicial review dismissed; costs awarded to R1 and MMC.
| Table of Content |
|---|
| 1. judicial review application overview. (Para 1 , 3 , 4 , 5 , 6 , 9 , 10 , 11 , 12 , 13) |
| 2. applicants lack locus standi. (Para 14 , 15 , 16 , 17 , 18 , 19 , 20 , 21 , 22 , 23 , 24 , 25) |
| 3. appeal process as per the medical act. (Para 26 , 27 , 30 , 31) |
| 4. judicial review principles and standards. (Para 32 , 33 , 34 , 35) |
| 5. husband's grievance during proceedings. (Para 40 , 41 , 42 , 43 , 45) |
| 6. cross-examination rights of the complainant. (Para 52 , 53 , 56) |
| 7. r1's reliance on civil suit evidence. (Para 60 , 61 , 62) |
| 8. fresh objections by applicants are unsubstantiated. (Para 66 , 68 , 70) |
| 9. negligence claims are inappropriate in inquiry. (Para 77 , 78 , 80 , 81) |
| 10. court's final ruling and judgment. (Para 86 , 88) |
Introduction
[1] Via this application for judicial review, the applicants seek to quash a decision dated 10 September 2024 that was delivered by the 2nd respondent, the Malaysian Medical Council ("MMC"). Whereby the MMC had adjudged that the 1st respondent ("R1") was not guilty of any professional misconduct pursuant to s 30 of the Medical Act 1971 .
[2] On 19 May 2025, I dismissed the judicial review application. Here are the grounds of my decision.
Background Facts
[3] R1 is a consultant obstetrician and gynaecologist who practices as an independent consultant at Pantai Hospital Pulau Pinang.
[4] The 1st Applicant ("wife"), who was a patient of R1, had sought treatment from R1 pertaining to a large ovarian cyst. She underwent a total laparoscopic hysterectomy with bilateral salpingo — oophorectomy on 27 December 2017 ("procedure"). She experienced complications after the procedure.
[5] On 9 February 2022, the wife filed Suit No: PA-22NCvC-27-02/2022 premised on negligence against R1 and others ("civil suit"). On 18 April 2023, the parties in the civil suit entered into a consent judgment without any admission of liability on the part of R1. Whereby a global settlement sum amounting to RM500,000.00 was paid by the respective parties to the wife.
[6] At the same time, the 2nd Applicant ("husband"), who is the husband of the 1st Applicant, had lodged a complaint to the MMC against R1 and one Dr Shanker, alleging professional misconduct in the treatment and care that was rendered to the wife. There are separate inquiry proceedings which are ongoing against Dr Shanker.
[7] The husband, who had legal representation throughout the course of the inquiry proceedings, had filed eight bundles of documents encompassing almost 1000 pages. He had attended on 27 September 2022, 24 March 2023 and 14 August 2023 respectively, to deliver his complaint to the disciplinary board of the MMC ("disciplinary board").
[8] During the inquiry proceedings before the disciplinary board ("inquiry proceedings") on 14 August 2023, the husband and his legal adviser who was present, agreed for his evidence and the documents to be "taken as read". Subsequently, R1's solicitors had cross-examined the husband on 9 October 2023. The disciplinary board then framed four charges against R1.
[9] The four charges against R1 are:
(a) Charge 1
Failing to adequately explain and communicate to the patient and her husband during the consultations on 5 December 2017 and 7 December 2017, the nature of the surgical procedure to be carried out on the patient on 27 December 2017 (ie, TLHBSO), and failure to obtain informed consent from the patient for the said procedure, thereby contravening s 3.7 of the MMC's Good Medical Practice Guidelines.
(b) Charge 2
Failing to adequately explain and communicate to the patient and her husband during the consultations on 5 December 2017 and 7 December 2017, the material risks and possible complications related to the TLHBSO (total laparoscopic hysterectomy and bilateral salpingo - oophorectomy) for removal of uterus and ovaries procedure carried out on the patient on 27 December 2017, and failure to give relevant options to the patient when discussing treatment, and the limitations and possible complications of
