MAM President comments on - 27/9/2004
Upholding medical standards
Stephen Fava, president, MAM.

The Medical Association would like to comment on the editorial titled The Medical Council - Change or Die (September 6).

May I state from the outset that the Medical Council is distinct from the Medical Association of Malta (MAM). The Medical Council is an autonomous body that is set up and regulated by law. MAM has always strongly defended the independence of the Medical Council.

The role of the Medical Council includes the setting and maintaining of professional and ethical standards; prescribing the qualifications that are required by medical practitioners; recommending to the President of Malta on granting of licences to doctors and the keeping of updated registers of doctors. It also has a judicial function in cases of alleged professional misconduct or breach of ethics by a doctor.

It is a very tall order but the Medical Council does it remarkably well. It should be noted that registration with the Medical Council is mandatory and hence all doctors are subject to regulation by it. This is in contrast to certain other professions where membership of the relevant regulatory body, such as the Press Club, is optional and any sanctions unenforceable.

The recently enacted Health Care Professions Act that sets out the constitution of the Medical Council is a very modern and progressive piece of legislation. The Medical Council is chaired by a president who is nominated by the Prime Minister. This must be a legal person and is indeed usually a retired judge. This guarantees that procedures are according to law and follow the norms of natural justice.

The other members are i) elected medical and dental practitioners, ii) nominees of the government and of the university (all of whom contribute to the necessary medical expertise of the council and iii) representatives of the public, who contribute by adding the patient's dimension. It is difficult to imagine a better constituted council. It is worth mentioning that MAM was the first to suggest patient representation.

The Medical Council is made up of men and women of undoubted integrity. They perform their duties conscientiously out of a sense of duty (they do not get paid for it!). Experience from other countries shows that up to 80 per cent of complaints that are lodged with similar regulatory bodies are considered frivolous and therefore thrown out very early on without the need for extensive and prolonged proceedings. There is no reason to suppose that the situation is any different in Malta and therefore it is to be expected that the majority of alleged cases suffer this fate.

With respect to the possibility raised in the editorial that elected medical practitioners might not be impartial, the European Court of Justice has already quashed this way of reasoning when it stated: "The method of election of the medical members cannot suffice to bear out a charge of bias. Again, the personal impartiality of each member must be presumed until there is proof to the contrary".

As already stated, the present number of doctors on the council is required for it to have the necessary level of expertise to deal with complex medical cases. By the same token, The Times should have objected to judges being judged by other judges. Obviously this argument does not hold water. Bodies regulating other professions are similarly largely made up of members of the respective profession (e.g. the Commission for the Administration of Justice) because it is they who hold the necessary expertise.

MAM agrees with the The Times editorial that the Medical Council is the proper channel for serious complaints. For this reason the council should screen and filter out inadmissible complaints in the shortest time possible.

MAM also agrees that the decision's motivations should be stated (i.e. give a reasoned judgment). This is essential both to preserve the rights of the complainant as well as to protect the doctor's name from wild speculations in unscrupulous media which could misinterpret the council's discretion as lack of impartiality. Ultimately, the public has to be satisfied that justice is not only being done but is also seen to be done.

For completeness' sake, it must be stated that there are certain aspects of the role of the Medical Council as set out in the Health Care Professions Act that MAM is not happy with. Among them is the fact that the same members of the council have both an investigative as well as a judicial role when it would be preferable to have separate sub-committees for each specific role, clearly defined by law.

The European Court of Justice has already ruled that such regulatory bodies have to observe the rules of a fair trial. Prior to the enactment of the current law, the president of the Medical Council of Malta (a retired judge) had unequivocally expressed his concern that the current law does not give the necessary guarantees as the same medical council has to screen, investigate and then judge the same case. This creates a clear flaw in the impartiality requirement which to date remains uncorrected.

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