Constitutional Justice Daniel Yusmic P. Foekh chairing the judicial review hearing of Law No. 29 of 2004 on Medical Practice, Thursday (12/15/2022). Photo by MKRI/Panji.
Thursday, December 15, 2022 | 14:35 WIB
JAKARTA (MKRI) — The case of alleged bariatric surgery malpractice that killed dr. Gerry Irawan, SpOG arrived at the Constitutional Court (MK). On October 21, 2022, the Indonesian Medical Disciplinary Board (MKDKI) has issued a decision on the reported, dr. Gede Eka Rusdi Antara, who then filed a material judicial review petition of the MKDKI’s authority as regulated in Law No. 29 of 2004 on Medical Practice. In the petition No. 119/PUU-XX/2022, the Petitioner challenges three articles: Article 59 paragraph (1), Article 59 paragraph (2) letter g, and Article 69 paragraph (1) of the Medical Law.
Article 59 paragraph (1) reads, “The membership of the Indonesian Medical Disciplinary Board shall consist of 3 dentists as the representatives from the profession organization, a doctor, and a dentist as the representative of the hospital association, and three persons graduating the law school.” Article 59 paragraph (2) letter g reads, “The appointed member shall fulfill following requirements: g. if the member graduated from law school, he/she shall have conducted 10 years of legal practice and shall have adequate knowledge of medical law.” Article 69 paragraph (1) reads, “The decision of The Indonesian Medical Disciplinary Board shall tightly bound the doctor, dentist, and Indonesian Medical Council.”
At the preliminary hearing on Thursday, December 15, 2022, legal counsels Viktor Santoso Tandiasa and Ardiyanto Panggeso virtually conveyed that the articles in question were in violation of Article 1 paragraph (3) and Article 28D paragraph (1) of the 1945 Constitution. The Petitioner’s registration certificate (STR) was temporarily suspended for 12 months, from 24 October, 2022 to 24 October, 2023 based on a decision by the MKDKI, where his medical practice was suspended. Consequently, he was dismissed from Surya Husadha General Hospital, Sanglah Denpasar Central General Hospital, and Bali Royal General Hospital.
“The Petitioner was also dismissed from his position in the medical staff group of general surgery to medical service. Without the [registration certificate] and [medical license], a doctor cannot earn a living,” Tandiasa said before Constitutional Justices Daniel Yusmic P. Foekh (panel chair), Suhartoyo, and M. Guntur Hamzah.
The Petitioner then filed a civil lawsuit and criminal report to the police. The MPD only conducted a disciplinary hearing, whose decision informed the MKDKI’s decision, which in turn informed the KKI’s (Indonesian Medical Council) decision, which cannot be reviewed or appealed. As a result of Article 59 paragraph (1) and Article 59 paragraph (2) letter g of the Medical Law, the Petitioner did not receive competent and impartial assessment of his medical practice.
In addition, Article 69 paragraph (1) of the Medical Law kept the Petitioner from having the opportunity to pursue transparent and fair tiered reviews because the MPD’s decision directly informed the MKDKI’s decision and was binding for the KKI. The article has also prevented fair legal certainty because the MKDKI’s decision could be used as a basis for civil and criminal lawsuit.
In the petitum, the Petitioner requested that the Court grant the petition entirely and declare Article 59 paragraph (1) of the Medical Law in relation to the phrase “persons graduating from law school” conditionally unconstitutional and not legally binding insofar as not interpreted as “medical law magister.” He requested that the article be read in full, “The membership of the Indonesian Medical Disciplinary Board shall consist of three doctors and three dentists as the representatives from the profession organization, a doctor, and a dentist as the representative of the hospital association, and three persons having a master’s degree in medical law.”
“[The Petitioner requests that the Court] declare Article 59 paragraph (2) letter g of the Medical Law relating to the phrase “persons graduating from law school” if not interpreted as “persons having a master’s degree in medical law,” the word “law” if not interpreted as “medical law,” and the phrase “have adequate knowledge of medical law” be declared unconstitutional and not legally binding, so that the article reads in full: ‘g. Those having a master’s in medical law shall have conducted 10 years of legal practice,’” Tandiasa stressed.
Constitutional Justice M. Guntur Hamzah asserted that since the Petitioner had been punished, the constitutional impairment due to the phrases “persons graduating from law school” and “in law” must be elaborated. He also advised the Petitioner to explain the relevance between the punishment and the phrases in question. He also asked the Petitioner to explain the causality of the phrase “persons graduating from law school” and the Petitioner’s interpretation of “could not be used as a basis for civil and criminal lawsuit.”
“This [case] started with a concrete case, so there has to be a reason [to support the requests] relating to the phrases being petitioned. In the background of the petition, it needs to be explained why knowledge in law is not an appropriate requirement for a membership in the MKDKI, when the organization assess violations of ethics, which necessitates background in law. Why does the Petitioner believe it unnecessary? Is background of medicine or medical law enough?” he asked.
Meanwhile, Constitutional Justice Suhartoyo deemed it important that the Petitioner explain the provisional reason in the subject matter of the petition so that the petition would be more chronological and the petitum would be more concrete and clearer. He asked whether the Petitioner’s doubt relates to the competence of law graduates or the implementation. He then advised the Petitioner to include the MKDKI’s decision on the punishment for the Petitioner. Last, Constitutional Justice Daniel Yusmic P. Foekh advised the Petitioner to elaborate the MKDKI’s decision on the punishment.
Before concluding the session, Justice Foekh informed the Petitioner that he had 14 workdays to submit a revised petition by Wednesday, December 28 at 11:00 WIB. The schedule for the next hearing will be announced by the Registrar’s Office.
Writer : Sri Pujianti
Editor : Lulu Anjarsari P.
PR : Fitri Yuliana
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 12/20/2022 14:58 WIB
Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian versions, the Indonesian version will prevail.
Thursday, December 15, 2022 | 14:35 WIB 148