---

Principal Applicant Yadi Permana accompanied by his attorney M. Luthfie Hakim was listened to judicial verdict on Act of Medical Practices, on Monday (20/4) at Plenary Room, the Constitutional Court Building. Photo PR/Ganie

 

The Constitutional Court (Mahkamah Konstitusi –MK) rejected a judicial review petition on Act Number 29 Year 2004 of Medical Practices (Undang-Undang Praktik Kedokteran –UU Praktik Kedokteran). The verdict emphasized that professional ethics, discipline, and legal norms were normatively couldn’t negate each other or interchangeable.

“Declaring reject the Applicant’s petition,” said Chief Justice of the MK Arief Hidayat declared the judicial verdict on Monday (20/4) at Plenary Room, the Constitutional Court.

On verdict number 14/PUU-XII/2014, the Court argued the doctors and dentists were deserved to give privilege because their profession significantly related with health, and even human life. The privilege was seen at the rule that binding them. Besides regulated by ethics and profession practices, they were bound with professional discipline as well regulated by the law.  

The Court assessed the legislators had firmly accommodated the ethics as one of the legal norms on Act of Medical Practices, particularly on Article 30 (2) letter e and Article 51 letter a Act a quo.

“The inclusion of profession ethics and profession discipline in an Act, according to the Court, shall be understood that the legislators emphasized the significance of profession ethics and profession discipline to be implemented as doctors and dentists’ attitude guidance,” said Constitutional Court Patrialis Akbar delivered the Court’s Argument.

The Court said that despite profession ethics and profession discipline were regulated by the law, it couldn’t directly interpreted that the ethics and discipline had the same legal consequence with legal norms on the Act a quo.

When the ethics and discipline granted equal strength with legal norms, it caused a consequence that violation towards the ethics and discipline would be charged with legal sanction, particularly criminal and civil sanction. “Whereas the violation of profession ethics and discipline will only charged with ethics and/or administrative sanction,” added Patrialis.

Related with the fundamental differences between the profession ethics and discipline with legal norms, the Court viewed that all three elements which each threaten certain sanction were not the imposition of multiple sanctions for one case. It was because each element had different scope.

Medical Scope

The Court argued the doctors’ and dentists’ case which had examined and decided by The Indonesian Medical Disciplinary Honorary Assembly (Majelis Kehormatan Disiplin Kedokteran Indonesia –MKDKI), could be forwarded to the authorities and or sued as civil case as long as the standard towards the case based on the doctors’ discipline standard drawn up by official agency that designated by the law, rather than merely seen through criminal law point of view. 

It was related with profession privilege and medical science essentially close with risks that could result disability and even death. “Although probably other professions could cause disability or death, but the legal consequence shall be distinguished,” said Constitutional Judge Muhammad Alim.

The differences, according to the Court, provided a strong basis for law enforcers and the courts, civil and criminal, to treat the doctors and dentists differently. The different treatment should be done or indicated by making medical science as the main reference in the investigation, prosecution and trial examination.

Previously, the United Indonesian Doctors (Dokter Indonesia Bersatu) assessed Article 66 (3) Act of Medical Practices was contradicted with the constitution because it could freely interpreted towards medication which can be qualified as criminal offense. Free interpretation of the Article a quo could make a violation of doctors’ discipline became a criminal case. It could raise the fear among doctors to take medication to high-risk patients as well as medication in emergency condition because they were able to be blamed of someone’s death.

Article 66 (3) Act of Medical Practices states:

 “The complaint referred to paragraph (1) and paragraph (2) doesn’t eliminate the right of people to report any alleged criminal offenses to the authorities,”

(“Pengaduan sebagaimana dimaksud pada ayat (1) dan ayat (2) tidak menghilangkan hak setiap orang untuk melaporkan adanya dugaan tindak pidana kepada pihak yang berwenang”)

The Applicant requested to the Court to set Article a quo to be “The complaint referred to paragraph (1) and paragraph (2) doesn’t eliminate the right of people to report any alleged criminal offenses to the authorities and or sue civil damage to the court, in terms the alleged criminal offenses and or civil damage shall first complained, examined and decided by the MKDKI with decision stated the accused has been guilty of disciplines breach of professional doctors or dentists which contains the intention (dolus/opzet) or concrete/heavy omission (culpa lata) and or cause civil damage”. (Lulu Hanifah/Prasetyo Adi N.) 

---