Healthcare is heavily regulated. There are 33 laws listed on the Health Ministry’s website (www.moh.gov.my).
The only Act that specifies standards for healthcare facilities and services is the Private Healthcare Facilities and Services Act (PHFSA), which has been in force since 2006.
Private Healthcare Facilities and Services Act
The PHFSA was enacted for the purposes of ensuring the integrity of healthcare professions, professionalism, quality of care and patient safety, and social and national interests.
The person in charge of a healthcare facility or service, who is a registered medical or dental practitioner, is liable, upon conviction, to a fine, imprisonment or both for several offences.
They include establishment, maintenance and operation of an unregistered clinic; failure to fulfil the prescribed responsibilities of a holder of a certificate of registration and person in charge; using the healthcare facility for any purpose other than that for which the certificate of registration is issued; non-compliance with an order of the Health director-general to close the healthcare facility; failure to comply with directives on quality and standards issued by the Health director-general; entering into contracts or arrangements with managed care organisations that changes the powers of the doctor in the medical management of patients, changes the role and responsibility of the Medical Advisory Committee, contravenes the Code of Professional Conduct of the Medical/Dental Council and/or contravenes the PHFSA, its regulations or any other written law; failure to provide information to the Health director-general about contracts or arrangements with managed care organisations; failure to provide information required by the Health director-general; employment of unregistered or unqualified staff; treatment provided by a person other than a registered doctor/dentist; non-availability of a registered doctor/dentist during the opening hours of the clinic; failure to comply with the regulatory requirements for orders for diagnostic procedure, medication or treatment; billing procedures; ensuring a patient’s rights; patient medical record system; infection control; basic emergency care services; and storage of vaccines.
A doctor was imprisoned under the PHFSA in 2008. A dentist and a dental facility was charged under the PHFSA in 2016.
Whilst the PHFSA applies to the private sector, the Federal Court has applied the same standards of care to both public and private sectors.
The Federal Court statement on the standard of care is: “The test propounded by the Australian case in Rogers v Whitaker and followed by this Court in Foo Fio Na in regard to standard of care in medical negligence is restricted only to the duty to advise of risks associated with any proposed treatment and does not extend to diagnosis or treatment.
“With regard to the standard of care for diagnosis or treatment, the Bolam test still applies, subject to qualifications as decided by the House of Lords in Bolitho.” (Zulhasnimar Hasan Basri & Khairina Puteri Sariman v Dr Kuppu Velumani Anor 2017)
The duty to warn stated in Rogers v Whitaker (1992) is: “The law should recognise that a doctor has a duty to warn a patient of a material risk inherent in the proposed treatment; a risk is material if, in the circumstance of the particular case, a reasonable person in the patient’s position, if warned of the risk, would be likely to attach significance to it or if the practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would likely to attach significance to it. This duty is subject to the therapeutic privilege.”
The duty regarding diagnosis or treatment stated in the English case Bolam v Friern Hospital Manage-ment Committee (1957) is: “In the case of a medical man, negligence means failure to act in accordance with the standards of reasonably competent men at the time…
“Putting it the other way around, a man is not negligent, if he is acting in accordance with such practice, merely because there is a body of opinion that would take a contrary view.”
The qualifications to Bolam stated in Bolitho v City and Hackney Health Authority (1997) is: “The use of these adjectives – responsible, reasonable and respectable – all show that the court has to be satisfied that the exponents of the body of opinion relied on can demonstrate that such opinion has a logical basis.”
The law should recognise that a doctor has a duty to warn a patient of a material risk inherent in a proposed treatment. — 123rf.com
Health, Education and Defence Ministry facilities and services
The Health, Education and Defence Ministries’ facilities and services comply with the relevant ministry’s directives on standards.
However, no such document(s) are available in the public domain.
In addition, non-compliance does not incur a fine, imprisonment or both, as there is no statutory provision for it.
One healthcare standard
The Federal Constitution states that all persons are equal before the law.
The PHFSA imposes a statutory duty on facilities, services and registered medical/dental practitioners in the private sector.
There is no similar imposition on the public sector. Is this fair? Are there two healthcare standards – one for the public sector and one for the private sector?
If the answer is in the affirmative, it raises the question as to why patients in the private sector are protected by statute, but the patients in the public sector are not.
Are patients in the private sector privileged? Are patients in the public sector not entitled to the same statutory protection?
After all, the Common Law does not distinguish patients in the public sector from those in the private sector.
A single death in a private healthcare facility led to a criminal prosecution. What happens if the death(s) occur in a public-sector facility?
The PHFSA also raises the question as to whether it is in line with the Constitutional provision of equality before the law.
It is time for the PHFSA to be amended for it to apply to all healthcare facilities and services irrespective of whether they are in the public or private sector.
If the public-sector facilities currently do not comply with these standards, then they should be upgraded until they do.
Dr Milton Lum is a past president of the Federation of Private Medical Practitioners Associations and the Malaysian Medical Association. The views expressed do not represent that of any organisation the writer is associated with. The information provided is for educational and communication purposes only and it should not be construed as personal medical advice. Information published in this article is not intended to replace, supplant or augment a consultation with a health professional regarding the reader’s own medical care. The Star disclaims all responsibility for any losses, damage to property or personal injury suffered directly or indirectly from reliance on such information.
- Hollis Johnson/Business Insider
- Jaden Smith’s bottled water company, Just Goods, is suing an embattled vegan mayo startup that recently changed its name from Hampton Creek to Just.
- In a lawsuit, Smith’s company claims Hampton Creek’s rebrand violates a 2014 trademark agreement between the two companies.
- Just (formerly Hampton Creek) is now alleging that Smith’s company put Just Goods labels on products that weren’t theirs as a means of boosting their claim to the name.
- A video shared with Business Insider shows a representative from Just (formerly Hampton Creek) peeling off what it claims is a fake label from Just Goods on a bottle of olive oil made in Spain by another company.
The name represents fairness.
But this week, a legal battle over deception between two companies called “Just” began to simmer. One is a maker of vegan mayo, cookie dough, and salad dressings, formerly called Hampton Creek. The other is Jaden Smith’s Just Goods, which makes bottled water packaged in paper and allegedly had plans to sell other items, like olive oil.
Smith’s company sued Just last year for alleging that it violated the terms of an agreement between both companies which dictated when each could use the name “Just.” But most recently, Just shot back, alleging in counterclaims that Just Goods created fake products – in some cases, by allegedly sticking a fake label on another company’s items – in an attempt to bolster their claims to the “Just” label.
‘Misrepresentations and deceptions’
In the most recent court filing, representatives from the vegan mayo startup alleged that Smith’s company used “misrepresentations and deceptions” in a “hurried attempt to fabricate” products that would support its claims to the “Just” brand name.
One of those alleged deceptions is a package of olive oil which the vegan mayo company claims was not made by Smith’s company.
In a video shared with Business Insider, presented in court, and described in the counterclaim, a representative from Just (formerly Hampton Creek) can be seen ordering the olive oil, which is listed on Smith’s Just Goods website. In the video, the representative is seen peeling off a label that reads “Just Olive Oil” and revealing a different label hidden underneath that instead reads “ONLY: Spanish Extra Virgin Olive Oil.”
That label bears the same name and appearance as a product offered by a company called Lycompany, whose “ONLY: Spanish Extra Virgin Olive Oil” products are sold online through vendors like Amazon.
Ken Hertz, the attorney representing Smith’s Just Goods company, said in a statement emailed to Business Insider that the video and the vegan mayo company’s claims are a distraction meant to “besmirch Just Goods.” Hertz also told BuzzFeed News that its labeling of the olive oil was a “common practice as companies develop their businesses,” adding that having one company manufacture a product for another is “perfectly acceptable with the Trademark Office and in the marketplace.”
A representative for Lycompany told Business Insider in an email that it was unaware that its products were allegedly being used this way.
The beginning: A peaceful agreement
- Just Mayo’s 2014 lineup.
- Biz Carson/Business Insider
The olive oil debacle was not the spark that ignited the controversy between the two Just brands.
The apparent brand war appears to have begun as early as 2014 when then the company then known as Hampton Creek – which calls its leading product Just Mayo – entered into a trademark agreement with Smith’s Just Goods that outlined the terms under which each company could use the word “just.”
Just Goods’ demands in its 2017 complaint included that the mayo startup stop using the name “Just, Inc.” and adjust its use of the word “Just” in branding,” as well as pay damages suffered by Just Goods as a result of that branding.
From ‘Hampton Creek’ to ‘Just’
Beginning last June (roughly three years after the trademark agreement), Hampton Creek abandoned the Hampton Creek label and began calling itself simply “Just.”
- Just’s rebrand.
From a product design perspective, the name change could be seen as strategic. For years, Hampton Creek had been mired in controversies, ranging from a since-dropped federal inquiry into allegations of artificially-inflated sales figures to an investigation into whether its egg-free mayo product could legally be called mayonnaise.
Instead of containers of Just Mayo with the word “just” written in small, cursive letters and the word “mayo” in big, bold print in the center, newer packages condiment flipped the arrangement, showing the word “just” followed by a period in big letters and the word “mayo” (or another type of dressing, like “ranch”) underneath in smaller print.
To an outsider, it may have seemed like a somewhat logical leap.
But Smith’s company didn’t think so.
Several weeks after Hampton Creek’s partial rebrand, Smith’s company, Just Goods, sued the company and its CEO, Josh Tetrick. Smith’s company argued that Tetrick’s rebrand violated the terms of their 2014 agreement.
At the time of the initial lawsuit, Tetrick’s company was still known as Hampton Creek, according to the state of California; its Just rebrand wasn’t officially recognized by the Secretary of State until February of this year.
Just(ice) can’t be rushed
In the counterclaim, representatives from Tetrick’s company allege that Smith’s company hastily added an “innovation” tab to its website to house fabricated items beyond bottled water that would make its claim to the “Just” label appear justified.
“Moreover, examining the nature of the food products it now claimed to be selling – namely, olive oil and snack foods – along with their labeling and the manner in which [Smith’s company] has sold them, reveals that [Smith’s company] rushed to make ‘token use’ of Just in connection with these goods – a technique the law forbids as a means of securing prior rights in a trademark. As but one example, [Smith’s company’s] ‘use’ of Just on olive oil turns out to be little more than slapping a sticker on to a third party’s olive oil product, even though JGI touts this product as an ‘innovation,’” the counterclaim states.
Hertz, the attorney representing Smith’s Just Goods company, said these claims are a distraction meant to “deflect from [Tetrick’s company’s] intentional breach” of the 2014 trademark agreement.
“Hampton Creek (now calling itself Just Inc.) is trying to steal the ‘Just’ trademark and take advantage of Jaden’s fame and his team’s hard work,” Hertz further claimed. “Just Goods will not stand for it.”