HEALTHCARE SERVICE

PRIVATE HEALTHCARE
CONTRACT TERMS &
CONDITIONS

NUR MALYANNA EMIR BINTI YAHAYA

 CONTENTS
PRIVATE
Introduction
HEALTHCARE
Issue Relating To Contract& Terms Involving The Service
CONTRACT & TERMS Agreement Provide By Private Healthcare

CASE STUDY Case study of Golden Horse Health Sanctuary

GAP IN LAW/POLICIES
The laws and mechanism in combating this issue
IN MALAYSIA
PRACTICE OF OTHER
United Kingdom, Singapore
COUNTRIES
RECOMMENDATION To improve the gap in Malaysia
 WHAT IS PRIVATE HEALTHCARE

 Based on World Health Organization, Private Healthcare can be

define as “ …the individuals and organizations that are neither
owned nor directly controlled by governments and are involved
in provision of health services. It can be classified into
subcategories as for profit and not for profit, formal and
informal, domestic and international.”
 According to Private Healthcare Facilities and Service Act 1998
(PHFSA), Private Healthcare section 2 :- “private healthcare facility”
means any premises, other than a Government healthcare facility,
used or intended to be used for the provision of healthcare
services or health-related services, such as a private hospital,
hospice, ambulatory care centre, nursing home, maternity home,
psychiatric hospital, psychiatric nursing home, community mental
health centre, haemodialysis centre, medical clinic, dental clinic
and such other healthcare or health-related premises as the
Minister may from time to time, by notification in the Gazette,
specify;

 “private healthcare services” means any services provided by a

private healthcare facility;
 Contract & Terms
01 The issue :- Whether the contractual terms for
service agreement provided by Private Healthcare
in Malaysia are govern by any laws or policies.
 WHAT IS SERVICE
AGREEMENT ??

 Service Agreement is when one party, the provider agrees to

provide services to another party which is the client/consumer for
the exchange of fee or payments.
 The standard of the service is to provide the cost, duration of the
supply, the consequences if not complying and
rights/responsibilities of each parties.
 One of the type of service agreement is Professional Service
agreement (PSA) where involved the used of talent by the
professional, example medical services.
SERVICE AGREEMENT PROVIDED BY PRIVATE
HEALTHCARE

Contract Act Private Healthcare Facilities and Service

Act 1998

7
 1. CONTRACT ACT

“
 2. Private Healthcare Facilities and
Service Act 1998 (PHFSA)

Any operations or facilities by private

healthcare has to be registered under
PHFSA 1998.
PHFSA govern the general operation of
Private Healthcare which include the
licences, registration, the operation
and the management of the facilities,
 CONSUMER PROTECTION ACT 1999
 Under CPA 1999 there is a section that provide for “future Service Contract”

 Future service contract can be define under this section as “ …a contract for
consumer services that will be provided on a continuing basis and as
prescribed by the Minister from time to time.”

 Section 17 (2) (a)(b)&(c) of CPA 1999 stated the rights of the seller to retain certain
amount of money if the consumer has cancel the contract.

 Section 17(3) provide the right of consumer to claim for refund if the consumer
has paid more money that supplier is entitled to charge under paragraph (2)(a),
(b) or (c)

 Section 17(4), (5) &(6) are about the right of consumer to cancel the contract and
● Section 24 of CPA 1999 :- Unfair Contract Terms as a term in a consumer contract
which, with regard to all circumstance, causes a significant imbalance in the rights
and obligations of the parties arising under the contract to the detriment of the
consumer

○ 24A. Interpretation for purposes of Part IIIA 24B. Application of Part IIIA
○ 24C. General procedural unfairness 24D. General substantive unfairness 24E.
Burden of proof
○ 24F. Power to raise an issue of unfairness 24G. Effect of unfair terms
○ 24H. Executed contracts
○ 24I. Contravention of Part IIIA to be an offence 24J. Regulations relating to
unfair contract terms

● NOTICE:- SECTION 2(2)(f) of CPA 1999 stated:-

“This Act shall not apply to…..(f) to healthcare services provided or to be provided by
healthcare professionals or healthcare facilities.”

● The definition of Healthcare facilities and private Healthcare facilities based on

PHFA 1998
Public
“healthcare facility” means any premises in
which one or more members of the public
receive healthcare services;
“healthcare professional” includes a medical
practitioner, dental practitioner, pharmacist,
clinical psychologist, nurse, midwife, medical
assistant, physiotherapist, occupational
therapist and other allied healthcare
professional and any other person involved in
the giving of medical, health, dental,
pharmaceutical or any other healthcare
services under the jurisdiction of the Ministry
of Health;
Private
 private healthcare facility” means any
premises, other than a Government
healthcare facility, used or intended to be
used for the provision of healthcare
services or health-related services, such as
a private hospital, hospice, ambulatory care
centre, nursing home, maternity home,
psychiatric hospital, psychiatric nursing
home, community mental health centre,
haemodialysis centre, medical clinic, dental
clinic and such other healthcare or health-
related premises as the Minister may from
time to time, by notification in the Gazette,
specify;
 “private healthcare services” means any
services provided by a private healthcare
facility;
 02
CASE STUDY
Golden Horse Health Sanctuary (GHHS)
 Golden Horse Health Sanctuary (GHHS)

● GHHS is established in 2001.

● Malaysia’s FIRST dedicated preventive health screening
center
● The advocate for the philosophy of “Prevention is
better than cure”.
● Certified & licensed from :- Ministry of Health since
2007, Licensed Private Ambulatory Care Centre under
the Private Healthcare Facilities and Services Act 1998
AGE GROUP OF THE COMPLAINANT
Age Range
60-69
22%
30-39
33%

50-59
6%

40-49
39%

30-39 40-49 50-59 60-69

GENDER OF COMPLAINANT
Chart Title
Male Female

27%

73%
COST OF COMPLAINT
<RM1,000 <RM5,000 <RM10,000 >RM10,001

7%
20%
13%

60%
BASIS OF THE COMPLAINT
Payment (of no-
Termination use services)-/
membership

Re-Joining Fees Poor Service

Refund
 WHAT ARE THE ISSUES INVOLVED WITH GHHS

1. THE CONTRACT OF SERVICE BETWEEN THE CONSUMER AND GHHS.

● Unfair contract terms

o Most of the terms in the contract emphasize all the decision for the service,
termination, increase of fees, etc are based on the discretion of GHHS only.
● Clause 8:- GHHS reserves the right to approve, alter, terminate, deny or
revoke the Participant's subscription to in the Programme for any reason,
which such reason shall not be unreasonably withheld from such
Participant affected by such right.
● Furthermore, in the contract they only discuss on the default by the
participants/complainants whereas GHHS will not provide with any
warranties, subsequently only the complainants will hold the liabilities.
● There is no specific clause in the contract that discuss on issue regarding
the default by GHHS itself. Nonetheless, there are several clauses that touch
the issue the /*subject matter of negligence
● Example can be seen in clause 10.3-10.5 of the contract:-
● 10.3 The Participant hereby agrees to hold GHHS and the Programme
parties harmless from any claims based on the use of the website, delay,
loss of profit and any other losses whatsoever, except such as may result
from GHHS’s gross negligence.

● 10.4 All Participant Privileges offered by GHHS are on an "as is" basis. GHHS
and the Merchants/service providers does not make any warranties
whether expressly or implied, nor do they in any way guarantee the quality
of the Participation Privileges.

● 10.5. Under no circumstances shall GHHS or the Merchant/service provider

be liable for any damages whether direct or indirect, special, incidental or
consequential to the Participant based on the applicable laws on contract
or tort or strict liability or otherwise, except such as may result from GHHS’s
own negligence.
● Even though in the contract it does mention “GHHS’s Negligence” however,
there is no clause in the contract that define what amount to the negligence
from GHHS part.

● Based on data received by NCCC, most of the complainants had issue the
complains toward GHHS in regard of their poor quality of services

● Example of the act of poor quality service from GHHS are, the last minute
cancellation for the appointment by the GHHS, the ineffective treatment,
the unprofessional services from the doctors and the service staff,
● From this circumstances that “negligence” here only amounted to specific
definition of medical negligence.

● Consequently of this circumstances, how do they handle the issues

pertaining the quality and the management of GHHS?

● As this is involving contract of service, therefore GHHS should cover more in

respect of the default/ responsibilities in their part, especially relating to
issues of quality as well of the Management. Rather than solely focused on
medical negligence. By means of the contract is not only subject to health
issue but it also cover the financial and the right of the consumer.
● The inconsistency of the contract :-
• There’re too many inconsistency in the contract between the consumer and
GHHS and one of the example is the issue of “re-joining fees”.

• Under clause 14.2 pf the contract stated:-

• “In the event the Rejoining Privilege is not exercised by the Participant for any
Participation Period, the Participation Privileges of the Participant in the
Programme shall lapse and the Participant shall cease to be a part of the
Programme.

• However from the case/complaint lodge to NCCC its show the GHHS impliedly
state that the re-joining fees will automatically be charge to the participant
after the end of the participation period.
● As most of the complainant stated that they were not aware of the re-joining
fees that were charged to them and they further stated that they were not
interested in joining back GHHS
● Based on the case of Auseanlink Management Services Sdn Bhd v Teratai
Sumber Sdn Bhd & Ors [2020] MLJU 718
 In the event that there is such inconsistency, the earlier clause would have
prevailed as held in the Privy Council decision in Forbes v. Git and Others
[1922] 1 AC 256 where Lord Wrenbury had stated as follows:-
“If in a deed the earlier clause is followed by a later clause which destroys
altogether the obligation created by the earlier clause, the later clause is to be
rejected as repugnant and the earlier clause prevails .... But if the later clause
does not destroy but only qualifies the earlier, then the two are to be read
together and effect is to be given to the intention of the parties as disclosed by
the deed as a whole.”
2. GHHS INTERNAL REDRESS

• GHHS do not provide any internal redress to resolve the dispute with the
complainants

• Commonly, GHHS do not response to any of the complaint whether it involve the
issues of termination of the agreement, the fees, the poor service, refund and
etc.
•
• The lack of response from GHHS, have cause the complainants to lodge their
report to the NCCC as the mean to resolve their issue.

• On March/April 2023, the GHHS has actively started to respond to

complainants. However, instead of trying to resolve the complains, they started
to send Letter of Demands to all the participants/ complainants demanding for
the overdue payments.
• Most of the complainants that received the LOD stated that they have
terminate their agreement but yet, they still receive the letter claiming the
overdue payment.

• Most of the claim make by GHHS were from the contract dated 2009-2015
which already passed the 6 year time-bar for civil claim.
3. THE VEXATIOUS PROCESS TO TERMINATE THE CONTRACT

• As per the letter sent to the Participants/complainants that rise the issue of
termination, GHHS responded by stating that the termination of the
contract can only be done by the discretion of the GHHS
• In regard with the issue for termination, it was silent in the contract. There is
no specific clause in the contract
• The process of termination “that based” on GHHS is listed below:-

2. GHHS will 3.
1.The
then have the Participants
participants
meeting with have to wait
have to make
the board for the result
formal notice/
whether to whether their
letter for the
allow the termination
termination
termination allow or not.
• Nonetheless, even if the participant follow the process, it will take them years
to get any response from GHHS.

• From this issue Section 17(5) of the CPA 1999 came to the picture:-

(5) Subject to subsection (6), a cancellation of the future services contract may
be communicated by words or conduct or both which indicate the intention of
the consumer to cancel the contract, and it shall not be necessary to use any
particular form of words, as long as the intention to cancel is clear.

• Section 17 (4) of the CPA 1999 further stated emphasized that the termination
take place when it is communicate to the company

(4) A cancellation of a future services contract shall take effect—

(a) at the time at which the cancellation is communicated to the supplier; or
 03
GAP IN POLICIES/
LAW
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1. Contract of service involving the terms for private sector

● In Malaysia there is no specific law or policies to standardise or a guideline

to govern any contract of service entered between consumer/patient/public
with Private healthcare

Law/ Policies Gap in Law/ Policies

Contract Act 1976 • The complainant can only bring this issue to
contest the contract of service as a whole. It will
be difficult for the complainant to do it by
themselves. Therefore they have to appoint or
hire the lawyer.
• This will lead to the unnecessary cost inflicted
to the complainant.
Private Healthcare Facilities and Service
• There is no specific law which discuss the rights of the
Act 1998
complainant as the consumer.
• The issue is not recognized as on offence under the act,
and there is no punishment impose in regard for any
financial damages inflicted toward the
patient/complainant cause by the unfair term in service
contract provided by the Private Healthcare facilities
• The law solely focus on the issue of the complainant as
patient

Consumer Protection Act 1999

• The words in section 2(2)(f) is vogue, as whether private
healthcare facilities applied to the Act .
• CPA 1999 does not provide the terminology which could
be deemed unfair, that there are loopholes in which
consumer rights are not properly regulated and well
protected by Malaysia‘s existing law
2. Medium/mechanism for the consumer
● Non- Government Body:-

 Malaysian Medical Council MMC

- MMC only focused on the complaint regarding the malpractice of the

doctor. As it only subjected to Section 29(1) Medical Act 1971, where the
jurisdiction is only related to the disciplinary jurisdiction over Registered
Medical Practitioners.
 BEST PRACTICE
FROM OTHER
04 COUNTRIES
You can enter a subtitle here
if you need it
 UNITED KINGDOM
1. The Law
● Unfair Contract Term 1977
 This Act cover all types of negligence, breach of duty that involved in any of
the contract. Therefore contract of service enter by the consumer and the
provider can also be subjected under this Act, As stated in section 15(2) :-
“……..2) Subject to subsection (3) below, sections 16 to 18 of this Act apply to any
contract only to the extent that the contract-
(c) relates to services of whatever kind, including (without prejudice to the
foregoing generality) carriage, deposit and pledge, care and custody,
mandate, agency, loan and services relating to the use of land ;…….”
 Further under Section 17 of the Act mention the issue unreasonable
exemption and the standard of contract should be :-
(1) Any term of a contract which is a consumer contract Control of or a standard
form contract shall have no effect for the purpose unreasonable exemptions
in of enabling a party to the contract- consumer or :

(a)who is in breach of a contractual obligation, to exclude standard form or

restrict any liability of his to the consumer or custo- contracts. mer in respect
of the breach

(b) in respect of a contractual obligation, to render no performance, or to

render a performance substantially different from that which the consumer /
customer reasonably expected from the contract ; if it was not fair and
reasonable to incorporate the term in the contract
2. Non-court dispute resolution
● Independent Sector Complaints Adjudication Service (ISCAS)
 one of the recognised independent adjudication services of complaints for
the private healthcare sector owned by the Centre for Effective Dispute
Resolution (CEDR)
 If The private Healthcare is one the subscriber under the ISCAS they must
adhere to ISCAS’s Complaints Code. They also offer an independent
adjudication service that can help with negotiations.
 Which the subscriber will comply as it will effect their reputation and
business.
 Singapore
● The Law
● Consumer Protection (Fair Trading) Act 2003 (Singapore)
 This Act cover any services provided to the Consumer as stated in section 2
of the act:- “consumer transaction” means ……(b) an agreement between a
supplier and a consumer, as a result of a purchase, lease, gift, contest or
other arrangement, in which the supplier is to supply goods or services to
the consumer or
 Under this act, it also discuss the issue of unfair practice where it can be
found in section 4. The definition under this section is :-
 any consumer transaction which led misled or deceived the consumer, false
claim or taking the advantage to the consumer.
 Further in section 6, explained the right of the consumer to sue the unfair
practice of the seller/provider but to be subjected to the Prescribe limit.
($30,000.00)
 Section 7 of this act, subsequently of the Jurisdiction of the Court to cover
this issue. Which started from Small Claims Tribunal.
 Small Claims Tribunal cover the issue relating with contract where it stated :-
In subsection (1), “relevant contract” means a contract mentioned in
paragraph 1(a) or (c) of the Schedule to the Small Claims Tribunals Act 1984,
but does not include a contract relating to the sale of immovable property.
 RECOMMENDATION FOR
IMPROVMENTS IN POLICIES/LAW
You can enter a subtitle here if you need it
05
1. To adopt the Unfair Term Act in our law as it own Act
2. Amend PHSFA 1998 to include section/law that discuss the issue of service
contract provided by Private Healthcare Facilities.
3. PHSFA 1998 should recognize the act of the unfair term in the agreement as
part of malpractice and impose serious punishment which lead to license
withdrawal of the facilities and practices
4. MMC or KKM need to regulate SOP pertaining service contract that are
provided by the Private Healthcare facilities
5. Amend CPA 1999 to adapt the application of the act toward the Private
Healthcare Provider/ Facilities.
 06
TIPS/ GUIDE FOR
CONSUMER
You can enter a subtitle here if you need it
● Always read the terms of the contract. Rather than reading the whole
contract the consumer should focus on the clauses that discuss issue of
default/responsibilities of the consumer/provider, guarantees, warranties,
the service applicable and termination.
● To make research and read the review of the company/provider before you
enter to any service agreement
● If have any complaint toward any private healthcare, consumer can lodge
direct complaint to MyCKAPS websites and fill the form.
https://moh.spab.gov.my/eApps/sdmscasepool/SdmsCasePool/add.do
ACTION TAKEN IN RESPONSE OF THE
COMPLAINT
 Update the
Nowadays, GHHS
complainant in regard
has actively respond
of the complaint. But
Received the to our emailed but
Emailed GHHS and we will also advice
Complaint and we will they only issue as
forward the complaint them to make police
determine the issue of letter stating that they
to GHHS report and to hire a
the complaint will personally resolve
lawyer as most of the
the issue with the
complainant had
complainant.
received the LOD
 THANKS!
DO YOU HAVE ANY
QUESTIONS?
nurmalyannaemir@gmail.com
010-5279949

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 REFERANCE
LAW
1. Consumer Protection Act 1999
2. Consumer Protection (Fair Trading) Act 2003 (Singapore)
3. Contract Act 1976
4. Private Healthcare Facilities and Service Act 1998
5. Unfair Contract Term 1977

CASE
Auseanlink Management Services Sdn Bhd v Teratai Sumber Sdn Bhd & Ors
[2020] MLJU 718
ONLINE ARTICLE/ARTICLE /REPORT
1. Admin. (n.d.). Unfair Terms in Contract vs Consumer Protections - Know Your
Right. Fareez Shah and Partners.
https://fareezlaw.com/latest-topic/unfair-terms-in-contract-vs-consumer-pro
tections/

2. Farhana Abdul Razak, Zuhairah Ariff Abd Gadas. (2020). Legal Issue Due to
Unfair Contract Term: The Malaysia Perspective. Journal of Critical Review,
7(19), 7457- 7463

3. ISCAS.(2021). annual report 2021/2022.

https://iscas.cedr.com/wp-content/uploads/2022/09/ISCAS-2021-22-Annual-Re
port.pdf

WEBSITE
4. Malaysian Medical Council. (n.d.). Laws & Regulations. Malaysian Medical
Council. https://mmc.gov.my/laws-and-regulations/

5. Kementerian Kesihatan Malaysia. (n.d.). Fungsi CKAPS. Laman Rasmi

Bahagian Amalan Perubatan Kementerian Kesihatan Malaysia.
https://hq.moh.gov.my/medicalprac/fungsi-ckaps/
3. Consumer Association of Singapore. (n.d.) CPFTA & Lemon Law. Consumer
Association of Singapore.
https://www.case.org.sg/cpfta-lemon-law/#:~:text=The%20Consumer%20Prote
ction%20(Fair%20Trading,engaging%20in%20unfair%20business%20practice
s
.