Section 3(3) sets out the effect of practicing without a certificate. It states:
“Any person who practises telemedicine in contravention of this section, notwithstanding that he so practises from outside Malaysia, shall be guilty of an offence and shall on conviction be liable to a fine not exceeding five hundred thousand ringgit or to imprisonment for a term not exceeding five years or to both”
The intention of the legislature is to criminalize the effect of any non-licenced telemedicine practice. As a consequence of the criminalization, the issues which arises are the extra-territorial applicability of the offence, and whether it is an offence of strict liability.
Extra-territorial Offence
A rule of private international law is that any criminal offence is territorial in nature. The creation f extra-territorial offences raises the questions of extradition of the accused. Even if the accused is tried in absentia, the penalty imposed by the court (if it is a fine) cannot be enforced against the foreign practitioner since the foreign courts would not recognize a judgment for the recovery of a fine as being enforceable by the process of registration in the foreign court.
Is the creation of an extra-territorial offence realistic or effective? The policy of the government in criminalizing the contravention of the Act is for the protection of the public. Would the criminalization be effective to prevent the injury to the public from bogus or not qualified medical practitioners? In order to effectively prevent bogus telemedicine practitioners, the local medical practitioner through whom the application is made, should be made responsible and accountable. Particularly, as he recommends to the patient to use the services of the particular telemedicine practitioner.
It should not be dismissed that there may be civil liability of the local medical practitioner on the following grounds;
a) For failing to ascertain the status of the telemedicine practitioner; or
b) For negligent misstatement by the local medical practitioner in respect of the quality of the medical care which the patient can expect from the telemedicine practitioner.
These are not exhaustive listings and it would be necessary to monitor the development of the application of the concept of negligence against local medical practitioners who not only have applied for the registration of the telemedicine practitioner but also recommended the telemedicine practitioner to the patient. These issues are less acute in their complexity in the context of the domestic medical practitioners as the criminal law will extend to them, but these issues are relevant especially when the patient is seeking to obtain relief from the civil courts against the negligence of the telemedicine practitioner who is not resident in Malaysia.
Strict liability offence
Section 3(3) creates an offence if a person practices telemedicine (whether within Malaysia or abroad). Thus, from a first reading the mere act of practising telemedicine would suffice to cause the criminal provisions to be applicable.
An important and vital issue is whether the wording to this section makes the offence a strict liability offence without the need for proof of intention. The principles that are used to determine this are set out as follows:
It is a presumption that mens rea is required where the statute which creates the offence is silent as to this requirement. This presumption may be rebutted by clear evidence that the Parliament intended to contrary. These principles were reaffirmed in Sweet v. Parsley where the House of Lords held that a person could not be convicted of the offence of “being concerned in the management of premises used for the purpose of smoking cannabis” in the absence of evidence of knowledge of such use.
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