Chief Justice Anwar Usman reading out the decision for the material judicial review of Law No. 29 of 2004 on Medical Practice, Tuesday (7/18/2023). Photo by Humas MK/Ifa.
JAKARTA (MKRI) — The Indonesian Medical Disciplinary Board (MKDKI) is the enforces of medical discipline authorized to determine whether or not a doctor or dentist has made a mistake in applying medicine and dentistry and to determine sanctions. Therefore, the process carried out by the MKDKI focuses more on due process of ethics than due process of law.
Due process of law refers to the legal principle that guarantees fair and procedural treatment in the formal justice system. This principle involves rights to things such as notice, fair hearing, open trial, and opportunity to defend oneself. However, the process followed by the MKDKI is based on the rules and ethics of the medical profession, which can differ from that of formal legal procedures. Because it is related to the enforcement of discipline among doctors or dentists, the examination is closed to the public except the reading of the decision of the disciplinary examination panel (MPD). Only certain cases that have high complexity or receive widespread public attention can be submitted for discussion in the MKDKI plenary if it is deemed necessary and proposed by the majority of MPD members.
This was part of the Court’s legal opinion in Decision No. 21/PUU-XXI/2023 delivered by Constitutional Justice Enny Nurbaningsih at the ruling hearing on Tuesday, July 18, 2023 in the plenary courtroom. The case on Article 69 paragraph (1) of Law No. 29 of 2004 on Medical Practice was filed by surgeons Gede Eka Rusdi Antara, Made Adhi Keswara, and I Gede Sutawan (Petitioners I-III).
Justice Enny further mentioned that in the context of the MKDKI, due process of ethics applies fair procedures, freedom of speech, and the opportunity to provide a response or defense in the examination process. Although not bound by strict due process of law principles, the MKDKI must still carry out the process with transparency and fairness to ensure that decisions are based on medical practice. Thus, the purpose of upholding discipline among doctors or dentists can be realized by protecting the public from actions taken by incompetent doctors or dentists and maintaining the honor of the medical profession.
Balance of Rights
Even though the MKDKI’s decisions are binding on doctors, dentists, and the Indonesian Medical Council (KKI), in disciplinary enforcement, this does not eliminate the rights of doctors or dentists to defend themselves because the mechanism or procedure for handling disciplinary complaints of doctors or dentists is designed to allow for balancing the rights of the complainant and the complained, even the complained is given the opportunity to give a final response to submit new documents for the verdict. In this regard, the transitional provisions of the Council Regulation No. 50 of 2017 emphasize that when the regulation comes into force, the examination of complaints that have reached the provision of objection as referred to in Article 56 paragraph (1) of the KKI Regulation No. 32 of 2015 continues to be applied in accordance with these provisions until the MPD decision session. Meanwhile, the objection mechanism as stated in the Council Regulation No. 32 of 2015 is no longer regulated in the Council Regulation No. 50 of 2017 but the essence of the objection in question has been adopted in the arrangements regarding the final response or defense given to the complained. In fact, Justice Enny explained, the complained can ask for a re-examination based on the supporting documents they submitted.
“Therefore, the Petitioners’ argument on the absence of objections that the complained can make is inaccurate because the complained is given the opportunity before the MPD decision session to submit a final response or defense by including supporting documents for re-examination. Meanwhile, if what the Petitioners meant is an objection to the MKDKI decision, this is irrelevant because the KKI is an institution that carries out the MKDKI’s decision and does not have the authority to assess the substance of the MKDKI’s decision,” she explained.
Position of KKI’s Decision
Justice Enny also elaborated on the legal considerations on the position and KKI decree in imposing disciplinary sanctions on doctors and dentists that can be taken the state administrative court. This is based on Article 5 of the Medical Practice Law, which states that the KKI carries out its duties in the capital city, so it serves to regulate, authorize, determine, and foster doctors or dentists who practice medicine in order to improve the quality of medical services.
These functions, she continued, are intended to be in line with the government function set forth in Article 1 point 2 of Law No. 30 of 214 on Government Administration. The KKI’s decisions can be classified as matters related to government administration, so they can be the objects of lawsuits brought to the state administrative court (PTUN). Relating to Article 69 paragraph (1) of the Medical Practice Law, because there is no objection that can be filed to the KKI because the MKDKI’s decision is binding, the argument has no legal basis. Thus, the phrase ‘binding for doctors, dentists, and the Indonesian Medical Council’ in the article is not unconstitutional and the Petitioners’ petition has no legal basis in its entirety.
“[The Court] adjudicated, rejects the Petitioners’ petition in its entirety,” said Chief Justice Anwar Usman reading out the verdict alongside the other constitutional justices.
MKDKI Decisions Bind KKI
The nine constitutional justices did not reach a unanimous decision. Constitutional Justice M. Guntur Hamzah had a dissenting opinion. He believes that as an autonomous institution, the MKDKI answers to the KKI, but the KKI cannot file administrative objections and appeals to the complained doctor or dentist, which actually makes the MKDKI’s decisions immediately binding on the KKI. Moreover, one of the MKDKI’s decisions is the recommendation to revoke doctor’s registration number (STR), which is binding on the KKI. This means there is no room for the KKI to reassess. Meanwhile, the recommendation for medical license (SIP) revocation is not binding on the SIP issuing institution, which the KKI submits to the Health Office (SIP issuer). Justice Guntur further said that the ‘recommendation’ of the MKDKI’s decisions to the MKDKI becomes different if it is aimed at recommending SIP revocation. This difference, he explained, could lead to injustice for doctors or dentists.
“Thus, doctrinally, the MKDKI’s ‘recommendation’ submitted by the KKI to the Health Office means that the recommendation to revoke the SIP should be assessed by the Health Office in accordance with the principle contrarius actus. Likewise, the MKDKI’s STR revocation recommendation to the KKI should be assessed by the KKI in the sense of approval or disapproval, so that the recommendation in question can be assessed through a forum outside the MKDKI. Therefore, based on logical reasoning, the KKI should have the authority to approve or disapprove the MKDKI’s decision,” Justice Guntur explained.
Also read:
Provision on MKDKI’s Examination Challenged
Case on MKDKI’s Examination Sees Additional Petitioner
MKDKI, KKI Have Independent Positions
Govt: KKI Cannot Review MKDKI’s Decisions
KKI & MKDKI Hand Out Punishment Like a Court
MKDKI Enforces Discipline, Not Law
The Petitioners challenged Article 69 paragraph (1) of the Medical Practice Law, especially the phrase “shall be binding for dentists and the Indonesian Medical Council,” which they believed was 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 : Nur R.
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, July 18, 2023 | 15:58 WIB 226