Sundoyo, Health Ministry’s health law advisor, testifying at the material judicial review hearing of Law No. 29 of 2004 on Medical Practice, Tuesday (5/16/2023) in the courtroom. Photo by MKRI/Ifa.
JAKARTA (MKRI) — If the Indonesian Medical Council (KKI) can also review the decisions of the Indonesian Medical Disciplinary Board (MKDKI), it will be in violation of Law No. 29 of 2004 on Medical Practice because the disciplinary examination by the MKDKI has met the principle of legal certainty and justice, and its decisions are final and binding and in line with the Medical Practice Law and the KKI Regulation No. 50 of 2017. As such, the KKI cannot raise any objection over any decision made by the MKDKI. This statement was made by Sundoyo, a health law advisor of the Ministry of Health, at the judicial review of the Medical Practice Law on Tuesday, June 6, 2023 in the plenary courtroom.
Sundoyo said Article 69 paragraph (1) of the Medical Practice Law, which the Petitioners challenge, is not standalone and instead are connected to the articles preceding and following it, such as Article 64 letter b and Article 70—which mandate the MKDKI and the KKI to form a regulation on the implementation of the functions and duties of the MKDKI, the procedure to handle cases, the procedure to file a report, and the procedure to examine and hand down a decision—as well as Article 2 of the council’s regulation No. 50 of 2017—which states that the enforcement of discipline among doctors and dentists aims to protect the public from actions by incompetent doctors and dentists.
The MKDKI’s decisions are final and legally binding for the parties involved, i.e. the respondent, the KKI, and the relevant regency/city health office. This means there is no legal remedy for the MKDKI’s decisions. Thus, the MKDKI’s decisions containing disciplinary penalties, especially revocation of doctor’s registration number (STR) on doctors or dentists who commit professional disciplinary violations, must be reported to KKI to obtain a determination of the implementation of the disciplinary punishment.
“The MKDKI’s decisions, which are binding on the KKI, prove that the MKDKI has been independent in implementing professional discipline among doctors and dentists. Although the MKDKI is an institution responsible for the KKl, in carrying out its duties it cannot be intervened by any party. This proves the legal certainty of penalties imposed by the MKDKI and the KKI, [that is], for the protection of the public relating to health services by doctors and dentists,” Sundoyo explained at the plenary hearing chaired by Chief Justice Anwar Usman.
MKDKI and KKI’s Hierarchy
Next, Ardiyanto Panggeso from the Legal Consultation and Legal Information Division of the Legal Bureau for the Development and Defense of Members of the Indonesian Doctors Association (BHP2A IDI) as a Relevant Party said that the interpretation of the word “binding” in Article 69 paragraph (1) of the Medical Practice Law along the phrase “The MKDKI’s decisions shall be binding for doctors, dentists, and the KKI” is inaccurate, especially to be interpreted as “The MKDKI’s decisions shall be binding for the KKI” because Article 55 paragraph (2) of the Medical Practice Law stipulates that the MKDKI is an autonomous institution of the KKI. However, it does not explain what the “autonomous institution” means.
Referring to Jimly Asshiddiqie’s book Perkembangan & Konsolidasi Lembaga Negara Pasca Reformasi (Development & Consolidation of State Institutions Post-Reform), he said that in the Medical Practice Law, the KKI is responsible to the president, while the MKDKI answers to the KKI. In other words, the MKDKI is part of the KKI, not the other way around.
“Therefore, in terms of hierarchy, the KKI is higher than the MKDKI in the state power structure. However, upon examination of the ‘quality of function’ of the KKI and the MKDKI in the Medical Practice Law, the KKI’s function is regulating, authorizing, determining, and fostering doctors and dentists who practice medicine in order to improve the quality of medical services, while the MKDKI’s function is never clearly stated with the word ‘function’ but it can be interpreted that it is related to the purpose of establishing the MKDKI to enforce discipline among doctors. Thus, from these functions, the quality of the KKI function in the state power system is primary while the quality of the MKDKI function is supporting,” Ardiyanto said.
Process of MKDKI Decisions
Meanwhile, the MKDKI’s chairman Prasetyo Edi said the MKDKI’s reference—the KKI Regulation No. 4 of 2011 on Professional Discipline among Doctors and Dentists—contains 28 professional disciplinary violations among doctors and dentists that shall not be committed. Examinations of reports done by the MKDKI refer to the Medical Practice Law and the KKI Regulation No. 50 of 2017 on the Procedure to Handle Disciplinary Reports against Doctors and Dentists.
In essence, he added, the MKDKI receive reports by people who have knowledge of any malpractice committed by doctors or dentists or suffer from it. Based on the Medical Practice Law, the MKDKI does not serve to perform mediation or reconciliation, so its decisions cannot always satisfy all parties, as there are always parties feeling disadvantaged by the MKDKI’s decisions.
“The MKDKI welcomes the Petitioners’ wish to implement due process of law and open [examinations] before the public. However, during the MKDKI’s examination, there is medical confidential information that is the patient’s right that must be kept following statutory laws and regulations. Therefore, the MKDKI cannot enforce discipline through public, open hearings. It can only do so while handing down its decisions,” Prasetyo explained.
Decision and Decree
Next, the KKI’s chairman Pattiselanno Roberth Johan argued that the Petitioners’ wish to implement due process of law in the enforcement of discipline by the MKDKI was unacceptable because it is not an institution that serves to enforce discipline among doctors and dentists and is not a law enforcement institution whose examination process is done in stages.
“So, the MKDKI’s decisions cannot be objected by the KKI. However, doctors or dentists can present a final response before the examination hearing of the reported is concluded and submit supporting documents while submitting their final response,” Pattiselanno said.
Before concluding the hearing, Chief Justice Anwar Usman informed all parties that the next hearing will commence on June 13, 2023 at 11:00 WIB to hear two experts and one witness for the Petitioners. The testifiers’ written statements can be submitted before that hearing.
Also read:
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Surgeons Gede Eka Rusdi Antara, Made Adhi Keswara, and I Gede Sutawan filed the petition No. 21/PUU-XXI/2023 to challenge Article 69 paragraph (1) of the Medical Practice Law, especially the phrase “shall be binding for dentists and the Indonesian Medical Council,” which they believe is against Article 1 paragraph (3), Article 28D paragraph (1), Article 28G of the 1945 Constitution.
Petitioner I was reported by the MKDKI despite having practiced his profession accordingly and accountably, and in undergoing the MKDKI’s examination, Petitioners I and II experienced a process that was not transparent and unfair, during which their constitutional rights were often violated. The MKDKI formed a disciplinary council (MPD), which consists of legal scholars, when its function is supposed to be examining disciplinary violations by doctors during practice. The Petitioners had been counseled but the counsel could not provide any defense.
The Petitioners’ experts and witnesses were examined by the MPD without the Petitioners in attendance, so they did not know what was asked. Therefore, the Petitioners requested that the Medical Practice Law be declared in violation of Article 1 paragraph (3) and Article 28 paragraph (1) if the phrase “shall be binding for doctors, dentists, and the Indonesian Medical Council” is not interpreted as a recommendation and cannot be used as a basis to file a civil or criminal lawsuit. They also asserted that the article had led to legal uncertainty since it positions the Indonesian Medical Council (KKI) under the MKDKI because the MKDKI’s decisions directly binds the KKI when its decisions on punishments shall be recommendations according to Article 69 paragraph (3). Therefore, the Petitioners requested that the a quo article be declared unconstitutional.
Author : Sri Pujianti
Editor : Lulu Anjarsari P.
PR : Fitri Yuliana
Translator : Yuniar Widiastuti (NL)
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, June 06, 2023 | 15:33 WIB 318