The ruling hearing of the judicial review of Law No. 29 of 2004 on Medical Practice, Tuesday (1/31/2023). Photo by MKRI/Panji.
Tuesday, January 31, 2023 | 18:41 WIB
JAKARTA (MKRI) — The Constitutional Court (MK) rejected the entire material judicial review petition of the authority of the Indonesian Medical Disciplinary Board (MKDKI) as regulated in Law No. 29 of 2004 on Medical Practice. The ruling hearing for Decision No. 119/PUU-XX/2022 on Tuesday, January 31, 2023 in the plenary courtroom. “[The Court handed down its] verdict to reject the Petitioners’ petition in its entirety,” said Chief Justice Anwar Usman (plenary chair) alongside the other eight constitutional justices.
Constitutional Justices Saldi Isra and Enny Nurbaningsih read out the Court’s legal considerations on the petition filed by Gede Eka Rusdi Antara and four other petitioners. Justice Saldi said that the MKDKI imposes disciplinary rules on doctors and dentists in order to protect the community (patients), maintain and improve the quality of health services, and maintain the honor of medical and dental professions.
Even though the MKDKI is responsible to the Indonesian Medical Council (KKI), in order to protect the community, in carrying out its duties, the MKDKI cannot be influenced by anyone or other institutions. With reference to the word “minister” in Article 60 of the Medical Practice Law, Justice Saldi mentioned the Constitutional Court Decisions No. 82/PUU-XIII/2015 and 80/PUU-XVI/2018, where the duties and functions of the KKI had been detailed as the drafter of regulations and the organizer of training on medical practice for the improvement of medical services,
Therefore, he added, if the KKI as the regulator and advisor for professional members determined the MKDKI members as requested by the Petitioners, conflicts might arise. On the one hand, the KKI has the task of making regulations on professional standards while, on the other hand, it also appoints MKDKI members whose job is to ensure that professional standards set by the KKI have been implemented. In addition, the MKDKI is also tasked with adjudicating disciplinary violations committed by its members of the profession. Thus, in order to avoid a conflict of interest and to prevent contradictions, the legislators set it so that MKDKI members are appointed by the minister with consideration that proposal from professional organizations are in accordance with the mandate of Article 60 of the Medical Practice Law.
“With the appointment of MKDKI members by the minister at the suggestion of a professional organization that must be placed in the administration of government affairs as stipulated in the considerations letter b of Law No. 39 of 2008 on State Ministries, the minister referred to in Article 60 of the Medical Practice Law is the minister in charge of health affairs. Thus, constitutionally, in accordance with Article 17 paragraph (1) of the 1945 Constitution, the implementation of said affairs cannot be separated from the position of minister as assistant to the president. However, in determining MKDKI members, ministers act based on suggestions from professional organizations. This means that the minister cannot use their power and authority to unilaterally designate MKDKI members other than those proposed by professional organizations,” Justice Saldi said.
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Next, Constitutional Justice Enny read out the Court’s legal considerations on the Petitioners’ argument that the phrase “shall bind doctors, dentists, and the Indonesian Medical Council” in Article 69 paragraph (1) of the Medical Practice Law, if it is not interpreted as “shall be recommendatory and bind doctors, dentists after obtaining a decision of the Indonesian Medical Council, and cannot be used as a basis for filing a civil or criminal lawsuit” is unconstitutional. The Court believes that through the Constitutional Court Decision No. 14/PUU-XII/2014, in which physicians concern humans, both their bodies and their lives, so they are also required to carry out medical practice activities carefully and in accordance with the procedures set out in the Elucidation to Article 55 paragraph (1) of the Medical Practice Law.
In line with this, the Court also responded to the question on the decision to impose medical disciplinary penalties, which could not be used as a reference or basis for filing a civil case or criminal case, which the Petitioners experienced. The Court, again, referred to Decision No. 14/PUU-XII/2014, which stated that as long as court proceedings, both in criminal cases and civil cases, are related to actions in medical profession, must be carried out within the scope of the medical profession. In other words, the standard for assessing the actions/care of doctors and dentists cannot be seen solely from the point of view of the Criminal Code, but must be based on the disciplinary standards of the medical profession drawn up by an official institution designated by laws and regulations.
Protection of Rights of Patients and Physicians
Furthermore, Justice Enny said provision on criminal or civil reporting on a doctor’s disciplinary case was necessary because it also concerns the protection of patient rights against actions by doctors or dentists that are outside of medical profession. If a doctor’s actions declared in violation of the medical profession by MKDKI harms any patient, the doctor who has been examined by MKDKI can be sued or questioned in court, both civilly and criminally. She emphasized that the Medicine Law serves to protect the public, both patients as users of health services and doctors and dentists as service providers.
“If the Court followed the Petitioners’ request, the objective of establishing the Medical Law and the goals of the state as set out in the Preamble to the 1945 Constitution would not be achieved. Thus, the Petitioners’ argument on Article 69 of the Medical Practice Law being unconstitutional was groundless according to law,” said Justice Enny.
Writer : Sri Pujianti
Editor : Lulu Anjarsari P.
PR : Fitri Yuliana
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 2/6/2023 07:41 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.
Tuesday, January 31, 2023 | 18:41 WIB 407