Image Source : https://img.freepik.com/free-vector/hand-drawn-flat-design-infertility- illustration_232149367794.jpg?w=740&t=st=1696496630~exp=1696497230~hmac=ba5a4eb ad88825f4c47aba58903245f7cf6bd775c460628baeae9ed7012539f1
From: A.M Oktarina Counsellors at Law
Contributors: Pramudya Yudhatama, S.H., Putri Shaquila, S.H., Khaifa Muna Noer Uh’Dina, S.H., Raysha Alfira, S.H.
Reviewer: Noverizky Tri Putra Pasaribu, S.H., L.L.M (Adv)., Ricki Rachmad Aulia Nasution, S.H.
A. Background
Health services are very important as something that is needed by humans. In Indonesia, there are many malpractice acts where it is carried out by unscrupulous health workers and hospitals as service providers that can cause the death of a patient who is a victim of malpractice. Some time ago, there was an incident of malpractice that happened to a
7-year-old child with a brain stem death diagnosed after undergoing tonsil surgery at a hospital in Bekasi city, the victim of the malpractice could not be saved and has been declared dead, with the occurrence of the malpractice event the victim’s family reported parties related to the alleged malpractice that occurred to the Police of Metro Jaya Regional (The news link is attached as follows). With malpractice acts committed by health workers and related hospitals, it is necessary to have legal protection for victims and sanctions that can be given to related parties, so what regulations regulate sanctions for these malpractice acts and what kind of legal protection can be provided to victims? Let’s look at it further.
B. Legal Basis
- Criminal Code (“KUHP“)
- Constitution of the Republic of Indonesia Year 1945 2nd Amendment (“1945 Constitution“)
- The Universal Declaration of Human Rights of 1948 (“UDHR 1948“)
- Law Number 8 of 1999 concerning Consumer Protection (“Law 8/1999“)
- Law Number 31 of 2014 concerning Amendments to Law Number 13 of 2006 concerning the Protection of Witnesses and Victims (“Law No.31/2014“)
- Law Number 17 of 2023 concerning Health (“Law 17/2023“)
Health services are used to meet health needs by providing health facilities periodically to the community. Basically, humans have basic rights to obtain health facilities as mentioned in Article 25 of UDHR 1948, which states:
“Every human being has the right to a level of living adequate for the health and well- being of himself or his family, including the right to food, clothing, housing, health care, necessary social services, and the right to security in the event of unemployment, illness, disability, widowhood, old age or other circumstances resulting in deprivation of income in circumstances beyond his control“.
With the existence of basic human rights that have been mentioned in the 1948 UDHR, in Indonesia there are also regulations that regulate the obligation of the state to give its people the right to get health which is seen as the basis for the application of Human Rights (“HAM“) which is contained in Article 28H of the 1945 Constitution after the 2nd amendment which states as follows:
“Everyone has the right to live a prosperous life physically and mentally, to reside, and to get a good and healthy living environment and the right to health services“.
With the non-fulfillment of the right to health obtained by the people from the state, the community will experience illness and cause their activities in earning a living and livelihood will be hampered. Based on Article 4 paragraph (1) of Law No. 17/2023 mentions the specific rights obtained by the community which states as follows:
- “Everyone has the right:
- live a healthy life physically, mentally, and socially;
- obtain information and education on balanced and responsible health;
- get safe, quality, and affordable Health Services in order to realize the highest degree of Health;
- obtain health care in accordance with health service standards;
- obtaining alses over Health Resources;
- determine for yourself the Health Services needed by himself independently and responsibly;
- obtain a healthy environment for the achievement of health degrees;
- accept or refuse some or all of the relief measures that will be given to him after receiving and understanding the complete information about such measures;
- obtain the confidentiality of his/her personal Health data and information;
- obtain information about his/her health data, including actions and treatments he has received or will receive from Medical Personnel and/or Health Personnel; and
- get protection from health “
Therefore, everyone has the right to get their rights along with health facilities as provided by the state. The definition of health itself has been explained in Article 1 number (1) of Law No. 17/2023 which states as follows:
“Health is a person’s state of health, whether physically, mentally, or socially and not simply free from disease to enable him to live a productive life.”
With the health rights that must be obtained by the community from health workers and hospitals who have obligations as stated in Article 5 number (1) of Law No. 17/2023 which states:
- “Everyone is obligated to:
- realize, maintain, and improve the highest possible public
- maintain and improve the degree of health for others for whom he is responsible;
- respect the rights of others in the pursuit of a healthy environment;
- adopt healthy living behaviors and respect the health rights of others;
- comply with outbreak or outbreak response activities; and
- follow the health insurance program in the national social security”
Basically, if health workers and hospitals have been declared to take action against patients who are victims of malpractice. This needs to be a further concern.
The victim himself according to Article 1 number (3) of Law No.31/2014, is defined as follows:
“A victim is a person who experiences physical, mental, and/or economic loss resulting from a criminal act.”
With the definition of the victim above, that with the publication of the alleged malpractice committed to the victim of malpractice, it is stated that it was not done based on the will of the victim and also the victim’s family, therefore the victim has the right to sue and get legal protection from actions that have lost the life.
Victims of malpractice have the rights as mentioned in Article 5 paragraph (1) number (a) of Law No.31/2014 which states:
“(1) Witnesses and Victims shall be entitled to:
- obtain protection for the safety of his person, family, and property, and be free from Threats relating to testimony he will, is, or has given;”
Such protection will be provided to victims of such malpractice from the start of the investigation stage to its end as in Article 8 paragraph (1) of Law No.31/2014, which states as follows:
“(1) Protection of Witnesses and/or Victims as referred to in Article 5 shall be provided from the commencement and end of the investigation phase in accordance with the provisions as stipulated in this Law.”
In connection with the provision of health services to patients, health workers or hospitals must comply with procedures as stated in Article 274 of Law No. 17/2023 which states as follows:
“Medical Personnel and Health Workers in carrying out practice are mandatory:
- provide Health Services in accordance with professional standards, professional service standards, standard operational procedures, and professional ethics as well as the needs of Patient Health;
- obtain consent from the Patient or his family for the action to be given;
- keeping the secret of the Patient’s Health;
- create and maintain records and/or documents about examinations, upbringing, and actions performed; and
- refer Patients to Medical Personnel or other Health Personnel who have the appropriate competence and authority.”
Based on the provisions above, health workers and hospitals as parties who provide health services that perform must first meet the provisions including professional standards, professional services, operational procedures, and professional ethics as well as patient health needs. If there are actions that are not in accordance with the procedure and can be referred to as a result of negligence and omission during the operation on the victim of the malpractice which causes the victim to be unable to be saved and die, the victim of malpractice committed by unscrupulous health workers and the hospital has the right to sue and sue the health worker because the victim of malpractice is a consumer who has should get health services provided based on Article 1 number (2) of Law No.8/1999 which states:
“Consumer is every person who uses goods and / or services available in society, both for the benefit of themselves, family, others, and other living beings and not for trade.”
Health workers who commit malpractice can be reported to the authorities and may be subject to sanctions as stated in Article 440 paragraphs (1) and (2) of Law No. 17/2023 which states:
- Every Medical Worker or Health Worker who commits negligence that results in serious injury to the Patient shall be punished with a maximum imprisonment of 3 (three) years or a maximum fine of Rp250,000,000.00 (two hundred fifty million rupiah).
And also contained in Article 440 paragraph (2) of Law No.17/2023:
- If negligence as referred to in paragraph (1) results in death, every Medical Worker or Health Worker shall be punished with a maximum imprisonment of 5 (five) years or a maximum fine of Rp. 500,000,000.00 (five hundred million rupiah).”
And perpetrators of these malpractices can be sentenced to imprisonment as explained in Article 359 of the KUHP which reads:
“Whoever through his fault (negligence) causes another person to die, shall be punished with imprisonment for not more than five years or imprisonment for not more than one year.”
Therefore, we can see that victims who experience malpractice can claim civil compensation to adverse parties, for example health workers and can become hospitals. Aside from criminal sanctions. However, this also does not rule out the possibility of being taken to the administration in terms of legality, health worker practices and hospital permits.
C. Conclusion
It can be concluded, seeing that malpractice is increasingly prevalent, it is necessary to have a firm regulation, in addition to providing a deterrent effect, it is no less important to take preventive measures and protection to victims. Because treatment is actually something that should be a benefit for patients. It should also be remembered that people affected by malpractice can take legal remedies based on applicable laws and regulations.
References :
– https://news.detik.com/berita/d-6961593/bocah-korban-dugaan-malpraktik-di- bekasi-meninggal-dunia