Court of Appeal Finds Regulator Liable in Tort for Breaches of Guidelines
October 8, 2022

The Court of Appeal in Majlis Perubatan Malaysia & Anor. v. Asia Pacific Higher Learning Sdn. Bhd. [2022] MLJU 1984; [2022] 1 LNS 397 recently upheld a decision of the High Court[1] and affirmed that breaches of guidelines can incur tortious liability even where such guidelines do not have the force of law.

The 1st Defendant, a regulator of the medical profession in Malaysia, conducted two survey panel visits in May 2011 and April 2013 (“the Survey Panel Visits”) to evaluate the medical degree programmes offered by the Plaintiff for the purposes of accreditation under the Malaysian Qualifications Agency Act 2007 (“MQA Act”). The Survey Panel Visits were chaired by the 2nd Defendant, who was a member of the 1st Defendant at the material time.

The Plaintiff contended that the Defendants had contravened the Guidelines of the Accreditation of Malaysian Undergraduate Medical Education Programmes (“Accreditation Guidelines”) in conducting the Survey Panel Visits and consequently sued the Defendants for negligence, breach of statutory duty and misfeasance in public office. The High Court found the Defendants liable on all three causes of action and ordered that damages be assessed.

On appeal, the Defendants sought to overturn the High Court’s decision by contending, inter alia, that:-

  • the Accreditation Guidelines merely served as a guideline to facilitate the accreditation process for medical degree programmes in Malaysia and were not intended to be binding with the full force of law; and
  • the Defendants were the wrong parties to be sued as the accrediting authorities for medical degree programmes are the Malaysian Qualifications Agency and the Joint Technical Committee (“JTC”).

Upon undertaking a thorough evaluation of the legislative framework and the history of the Accreditation Guidelines, the Court of Appeal, inter alia, held that:-

  • the Accreditation Guidelines, although without statutory force of law, were nevertheless binding as it was issued and adopted by the 1st Defendant to provide for the procedures to be followed in an application for accreditation;
  • it was thus “repugnant to common sense” for the Defendants to contend that the Accreditation Guidelines were “not binding on them and not meant for their strict adherence” when medical degree programme providers (such as the Plaintiff) were required by the 1st Defendant to adhere strictly to the Accreditation Guidelines; and
  • the 1st Defendant is the accrediting authority for medical programmes as it is the relevant professional body that is responsible for (a) establishing the JTC under s. 51 MQA Act, (b) approving or refusing accreditation under s. 52 MQA Act, (c) imposing conditions on the grant of accreditation under s. 54 MQA Act and (d) revoking accreditation under s. 55 MQA Act.

The Court of Appeal then proceeded to consider the Defendants’ contraventions of the Accreditation Guidelines in light of the elements of negligence, breach of statutory duty and misfeasance in public office and upheld the High Court’s finding of liability against the Defendants on all three causes of action.

The Court of Appeal accordingly dismissed the Defendants’ appeal and affirmed the order of the High Court.

Steven Thiru, Gregory Das, Jeremiah Rais and Leah Samuel of Messrs. Steven Thiru and Sudhar Partnership were instructed by Messrs. Gerard Samuel & Associates to act as counsel for the Plaintiff in the Court of Appeal.

[1] Asia Pacific Higher Learning Sdn. Bhd. v. Majlis Perubatan Malaysia & Anor. [2020] 7 MLJ 549; [2020] 2 CLJ 346; [2019] AMEJ 1518 (HC)

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