Nunu Nurjana, Zudan Arief Fakrulloh,
Ahmad Redi
Universitas
Borobudur, Indonesia
E-mail: [email protected],
[email protected], [email protected]
|
KEYWORDS Informed Consent, Legal Protection, Health Officer |
ABSTRACT This study aims to examine the implementation of Informed Consent which
is carried out when carrying out medical medical
actions, examine and discuss the occurrence of criminal acts, examine and
discuss the implementation of criminal sanctions by health workers in the
practice of health services at the Interna Medika
Clinic Karawang. This study uses a normative legal approach, which is to see
and pay attention to the rules or literature in accordance with the object of
research. The problems that arise are as follows: (1). The existence of
Informed Consent is very important when carrying out medical medical actions (2). The occurrence of criminal acts that
may be committed by health workers in the practice of health services (3).
The application of criminal sanctions for anyone in this case health workers
who commit criminal acts at the time the medical action is carried out. |
INTRODUCTION
In
the era of information technology, the need for all citizens for health
measures, in this case medical action, has become a topic of discussion in the
wider community. Informed Consent is the patient's consent that has been agreed
upon by the patient in an effort to take medical action carried out by the
doctor for the patient after obtaining clear and detailed information from the
doctor implementing the medical action in an effort to help the patient,
including providing information about all risks that could occur Consent
according to Komalawati (Ratman
2013).
The above
definition explains that a doctor cannot force a medical action on a patient,
even though the medical action is in accordance with his knowledge or for the
benefit of the patient. Respect for whatever the patient's choice is a must for
doctors, and that which distinguishes a general criminal offense violator from
a doctor (example: maltreatment) is informed consent. In this case, it is good
for a doctor not to be separated in providing information and communicating
with patients regarding the action plan to be carried out by the doctor, he
should adhere to the Regulation of the Minister of Health Number 290 of 2008
concerning Approval of Medical Actions which contains and states how informed
consent is carried out in accordance with procedure and correct.
In
general, the problems that arise in the world of health are in the joints of
human life, whether it is life in the past, current life or in the future,
judging from the origin of its development, there has been a change in value
orientation and thinking related to efforts to solve existing health problems.
The process of technological and socio-cultural development goes hand in hand
with changes in the orientation of values and people's thinking,
the policies taken in the development of the health sector which were
originally in the form of efforts to heal patients, have gradually developed
towards a unified health development effort for the whole community with
comprehensive community participation, integrated and sustainable which
includes:
1.
Improvement Efforts (Promotive)
2.
Preventive Efforts (Preventive)
3.
Healing Efforts (Curative)
4.
Recovery Efforts (Rehabilitative) (Nasution
2013)
The expected end result in the field of improvement, prevention,
healing and recovery is that every member of the community can achieve a
maximum degree of health both physically, mentally, socially and is expected to
have a long life expectancy (Ningsi,
Aswita, en Wulandari 2021).
The health efforts mentioned above are influenced by
factors including; socio-cultural environmental factors, economic factors,
physical and biological environmental factors both dynamic and complex. Given
the wide coverage, the government, through the naional health system, seeks to
provide comprehensive, integrated, equitable, and acceptable health and is
affordable by all levels of society. It is held with an emphasis on health
services as widely as possible for the community, in an effort to achieve
optimal health status.
A
scholar named H.L. Bloom expressed his opinion that there are 4 factors that
can affect the degree of public health including: 1) lifestyle; 2) the
environment includes social, economic, political, cultural); 3) health
services; and 4) genetic factors (heredity), the four factors above are
interconnected, interact and affect the health status of a person or group.
The
development of the national health system in terms of juridical aspects, should
be reviewed and equipped with laws and regulations in the health sector, with
more appropriate legal products that can create the following things:
1.
Support the creation of existing health
service facilities, programs and activities or those that will be developed in
the future.
2.
Pay attention to regional interests and
harmonize with laws and regulations in other sectors related to health efforts.
3.
Aims to encourage the development of
health efforts that are expected in the future and are adapted to the needs of
the wider community in general.
4.
Regulate the authority of each level of
health efforts.
5.
Regulate the authority and responsibility
for financing health efforts between the central government and local
governments.
6.
Regulate authorities and responsibilities
and can provide legal protection for recipients and providers of health
services.
7.
Regulate the quality of health services provided
by the government or the private sector.
8.
Replacing legal products that are not in
accordance with the situation and conditions.
9.
Contains commensurate legal sanctions so
that every violator can be dealt with accordingly.
One
of the patient's rights is to obtain information as clearly and completely as
possible from the doctor who treats the disease, namely the right to
information which is part of the right of self-determination, which is one of
the basic rights of individuals who have the right to self-determination, owned
by a patient.
In
this case, a doctor must be able to respect whatever choices are made by the
patient, because that is the real difference between a doctor and a violation
of general criminal acts (eg
molestation) is informed consent. So that a doctor should always communicate
well and effectively with patients about complaints and plans of action to be
taken and related to this, doctors should be guided by the Minister of Health
Regulation No. 290 of 2008 concerning Approval of Medical Actions which
contains how to do informed consent correctly.
In
implementing health programs which are the rights of all communities, it is
necessary to strengthen regulations to support the implementation of
development efforts as well as efforts to empower health through accelerated
implementation, increased cross-sectoral collaboration and improved management
in stages at the center and in the regions. Planning for national health
workforce needs is adjusted to the needs based on health problems, the need for
development of health development programs, as well as the availability of
these health workers. Procurement of health workers in accordance with the
planning needs is carried out through education and training, both by the
government, local governments and the community, including the private sector.
Empowerment of health workers includes the distribution of health workers in an
equitable and fair manner, utilization of health workers and development of
health workers, including career development.
Health
education is a process of changing healthy living behavior on the basis of
self-awareness both within individuals, groups or communities in an effort to
maintain and improve health.
Legal protection and legal certainty for health workers
in carrying out their duties to serve the community directly or indirectly
requires a legal basis that becomes boundaries that are in line with the
development of science and technology in the health sector as well as
socio-economic and cultural. Health workers are people who are directly
involved in the health sector, have skills and have received education in the
health sector for which certain types of authority are required to take health
actions (Indonesia en Nomor 32AD).
�� Penalties in
criminal law are intended to maintain security and proper social life (Leden
2005). The law works by regulating the actions of a person or the relationship
between one person and another in society. To regulate this matter, the law
should be able to explain its work in various functions, including the
following: (1) The creation of norms and values, both specifically in terms of
their designation and those that determine the relationship between people and
people; (2) Settlement of disputes that occur; (3) Guaranteed continuity of
community life, in the event of changes in the joints of life (Satjipto 2009).
The application of sanctions in a criminal
law is not merely a technical matter of legislation, but is an inseparable part
of the substance or material of the legislation itself. That is, in terms of
matters relating to penalization, criminalization and discrimination, it must
be understood comprehensively, both all aspects of the substance or material
issues of legislation at the stage of legislation policy (Mulyadi
en Surbakti 2010). The existence of
action sanctions is urgent because the goal is to re-educate the perpetrators
to be able to adapt to their environment. The sanctions for this action
emphasize more on human values in the reform and re-education of
criminals. This re-education is very important because only in this way can
perpetrators realize that what they are doing is contrary to human values. The
imposition of sanctions in criminal law is the effect or fruit of a violation
of the law that has been committed and has been determined by law, from the
process of detention, then prosecution, until the sentence is handed down by
the judge.
The priority part of any law is the
determination of the legal system that underlies it. Related to policies and
types of sanctions in criminal law, it is inseparable from the initial setting
of goals to be achieved in the sentencing process.
Criminal sanctions
are acts of corporal punishment for those who violate them, both confinement
and imprisonment. Corporal punishment can stand alone or with a fine. Types of
crime, namely: crimes and violations (Whimbo 2010).
RESEARCH METHODS
The method used in this scientific journal is normative juridical, namely
legal research conducted by examining library materials or secondary legal
materials as the basis for research by conducting a search of regulations and
literature relating to the issues under study. 3 Existing legal materials are
then analyzed qualitatively to determine draw conclusions to answer the
problems studied
RESULTS
AND DISCUSSION
a.
Imformed Consent Theory
One of the patient's
rights is to obtain information as clearly and completely as possible from the
doctor who treats his illness, namely the right to information which is part of
the right to self-determination.
In the
implementation of imformed consent, a health worker
should always communicate with the patient about what will be done, including
providing information about expeksamping that may
occur at the time of medical action.
Medical
Action Approval:
Approval
and Explanation
1.
Approval
Approval for medical action is the
approval given by the patient or the patient's family who has a kinship
relationship for the medical action to be taken by the health worker to the
patient.
A doctor or other health worker is obliged
to provide an explanation of matters relating to health problems experienced by
the patient correctly and honestly. On the explanation given by the health
worker and the patient agrees, the action can be continued, but if the patient
refuses to express it with reasons or without reason even though it can have an
adverse impact on his illness, then a doctor must be able to accept and respect
the decisions of the patient and his family. This is commonly known as informed
refusal. This is the basis for the existence of a patient as a human being who
has absolute decisions that cannot be forced. This term in modern ethics is
called Respect to Autonomy.
The essence of informed refusal is that
the refusal of the patient and the patient's family when a medical action is to
be taken has previously received an explanation from the health officer in this
case by a doctor or dentist regarding something related to the medical action
and the patient and the patient's family already know and understand everything
that may arise as a result of the refusal of such medical treatment (Guwandi
2006).
The patient's consent to the explanation
of the doctor or other health workers can be given by the patient either orally
or in written form, depending on the type of action taken. Here a doctor must
classify it against the actions to be performed on the patient, whether it must
be written or just verbally enough, so that from this it can be separated any
written medical actions or verbal consent.
Broadly
speaking, the form of permission (approval) can be distinguished:
� Written
consent
Approval obtained by health workers to
carry out medical actions to patients in written form on a special form that
has been provided which has previously received explanation or information from
health workers in the field.
Written consent is given to; (1) Medical actions
that will be of high risk and, (2) Actions that are difficult to predict the
outcome. This does not also make doctors or other health workers free from
their legal responsibilities if complications occur or the patient experiences
disability or even death. Everything must be investigated according to the
indications of the patient's illness, has been carried out by a doctor or other
health worker who is competent and has the authority according to his
knowledge, in accordance with standard operating procedures (SOP).
The approval obtained by doctors and other
health workers does not eliminate legal liability, whether criminal or civil,
if there is an error or mistake that harms the patient.
� Verbal
consent
In the Minister of Health Regulation
Number 290 of 2008 concerning Approval of Medical Actions, it is stated that
patients do not need to express written consent if the actions given by doctors
or other health workers are not actions that contain high risks or whose
results cannot be predicted.
So a
doctor or other health worker if you want to take medical action, after the
officer explains or explains in a language that is easy to understand and
understand, the patient or the patient's family can do:
�
Confirming with words
�
Nodding head
�
Wink
�
Move hands
�
Keep eye contact only (provided the patient is awake)
Then it can be interpreted that the
patient or the patient's family expresses their consent. Examples for
unnecessary actions with written consent are: blood collection, infusion,
installation of oxygen, ultrasound examination.
� Without
approval
There are times when a patient is in an
unconscious state (without an introduction) and urgent action is needed to deal
with an emergency that occurs, to whom do doctors or other officers ask for approval?
Is the patient left alone until he is conscious or until a family member is
there to ask for approval?
Of course, in the rules that have been
enacted, of course there are rules that regulate an exception, meaning that it
can be violated with certain conditions. So there are
several conditions in which patients cannot be asked to make informed consent,
either orally or in writing, namely:
� In an
emergency
In an emergency
condition when the condition experienced by the patient will get worse if no
immediate action is taken, it is usually called (Live Saving) in terms of
preventing the occurrence of disability in the patient. Doctors and other
health workers cannot be prosecuted if bad things happen to the patient and the
action given fails, if the procedure has been carried out properly and in
accordance with the competence of the health worker who helps him.
The basis of the
above why it should be done is:
- � Article
304 of the Criminal Code: Whoever intentionally causes or leaves someone in a
state of misery, while according to the law applicable to him, he is obliged to
provide life, care or maintenance to another person, a maximum imprisonment of
two years and eight months shall be imposed or a maximum compensation of as
much as possible. four thousand five hundred rupiah.
- � It
is contained in Article 51 letter (d) of Law Number 29 of 2004 concerning
medical practice: Performing emergency assistance on a humanitarian basis,
unless it is certain that someone else is on duty and capable of doing it, with
a maximum imprisonment of one year and/or a maximum fine of fifty million
rupiah.
� Pediatric
patients and other legally disabled persons; Consent cannot be asked of them
because legally they are not yet entitled to take legal action. Then approval
is requested from the next of kin, guardian or guardian.
� Patient
is unconscious
For
an unconscious patient, it is not possible to ask for consent from the patient,
but consent is requested from the patient or the person who delivered it. If
there is no competent family, then a doctor must carry out his obligation to
help the patient if it is obvious that the person concerned needs help for his
survival.
� Extension
of a medical surgical procedure
What
is meant by the extension of medical action is if a surgical procedure for
which there is informed consent, it turns out that at the time of the operation
excessive action is required due to a condition (which is not included in the
explanation of the informed consent) which if not performed will have serious
consequences for the patient who at that time did not it is possible to give
informed consent to his family due to limited time. The purpose of this action
is to save life or prevent disability (live saving), for example, a surgeon at
the time of surgery to open the abdominal wall, it turns out that at that time
the patient's appendix/appendix wall is inflamed and almost burst (which is not
the purpose of medical action). first), then the doctor is obliged to carry out
expansion measures by cutting the appendix (appendectomy) in addition to the
purpose of the first operation.
2.
Explanation
In informed consent there are two very
important elements that play a role in whether or not a medical action can be
carried out, namely the consent from the patient for the explanation (informed)
he received given by the doctor or other health workers.
A good explanation technique is very
important that must be mastered by a doctor or other health worker so that what
will be conveyed is in accordance with the patient's condition and can be known
and understood
b.
Law Enforcement Theory
A process of enforcing laws or norms in a
real way and becoming a guide for the life of the state and nation is the
meaning of law enforcement. The law should be the commander in chief for
anyone, be it individual citizens or groups.
When a normative rule is carried out by
anyone and places oneself in the applicable legal norms or regulations that
carry out the normative rules or does something based on the norms of the
applicable legal rules, it means that he is carrying out or enforcing the rule
of law. In the sense of the subject, law enforcement is defined as the action
of law enforcement officials in guaranteeing and ensuring that a rule of law
can run as it should. To ensure the enforcement of the law, if necessary, law
enforcement officers are allowed to carry out coercive actions against
perpetrators of crime (Abidin
2012).
Law enforcement in a broad sense, includes
the values of justice contained therein implied in the formal
rules and values of justice that live in the community (Rahardjo
en Terbit 2005). Meanwhile,
if law enforcement only concerns the enforcement of formal and written rules,
that is the narrow meaning.
According to Satjipto
Rahardjo; Law enforcement is an effort to realize
ideas, concepts and desires realized in real life. Included in these legal
desires are the thoughts of the drafting body and the legislators themselves.
Health
Officers May Commit Crimes in Health Care Practices
Crimes committed by health workers can
occur when the practice of health services does the following things as stated
in Law Number 36 of 2014 in Articles 83 to 86 concerning Health Workers and the
types of acts committed as follows:
a. Health
practice is carried out by someone who is not a licensed health worker;
b. Recipients
of health services suffer serious injuries or even death due to negligence by
health workers;
c. Carrying
out Practices without STR / Registration Certificate for Health Workers;
d. Foreign nationals as health workers do not have a temporary
STR and also do not have a SIP / Practice License but intentionally provide
health services;
e. Health
workers do not have a practice license;
Enforcement of Criminal Sanctions
for Health Workers
������ Sanctions
play an important role in law enforcement against the observance of a statutory
regulation. In general, sanctions are legal in the form of suffering due to
violations of legal rules. In law, there are civil, criminal and administrative
sanctions. Civil sanctions are sanctions due to unlawful acts committed by
someone who cause harm to another person, therefore, the person who caused the
loss is required to pay compensation for the loss.
Criminal sanctions are related to violations of the provisions of
criminal law (public interest/order) and administrative sanctions related to
violations of legal provisions and administrative sanctions related to
violations of administrative law provisions stipulated by state administrative
officials in carrying out public service affairs (Husni 2004).
The law regulates specific criminal offenses outside the general criminal
law. The indicator of the criminal law is called a special crime or is not
regulated in a separate criminal law (Syamsuddin 2022).
As a special piece of legislation, the legal basis as well as its
enforcement, can deviate from the general provisions of Book 1 of the Criminal
Code, even to the provisions of procedural law (formal law), the legislation on
special crimes can also deviate from Law Number 8 Year 1981 concerning the
Criminal Procedure Code, the specificity of the legislation on special criminal
acts from the aspect, norm, clearly regulates matters that have not been regulated
in the Criminal Code.
The legislation on special crimes is the legislation that regulates
matters of a special nature outside the Criminal Code. So
the starting point for the specificity of a special statutory regulation can be
seen from the actions that are regulated on the subject of criminal, criminal
and criminal acts.
Several
legal scholars argue about the purpose of criminal law, namely:
a. To
frighten people not to commit crimes, either by scaring the� people (generale
preventie), or by scaring certain people who have
committed crimes, so that they will not commit crimes again (special prventie);
b. To
educate or improve people who like to commit crimes so that they become people
of good character, so that they are beneficial to society;
c. To
prevent the commission of criminal acts for the protection of the state,
society and population, namely:
- � To
guide the convicts to convert and become virtuous and useful members of
society;
- � To
remove stains caused by criminal acts.
Regarding
the purpose of this sentencing, J. E. Sahetapy is of
the opinion that; Punishment aims for liberation and the meaning of liberation
requires that the perpetrator must not only be freed from evil and wrong
thoughts, but must also be released from social reality, in which the
perpetrator is shackled (Mardani
2008).
Law
Number 36 of 2014 concerning Health Workers,
Article 83:
Everyone
who is not a health worker practices as if he were a licensed health worker as
referred to in Article 64 shall be sentenced to a maximum imprisonment of 5 (five)
years.
Article 84:
1. Every
health worker who commits gross negligence resulting in serious injury to the
recipient of health services shall be punished with imprisonment for a maximum
of 3 (three) years;
2. If
the gross negligence as referred to in paragraph (1) results in the death of
any health worker, he shall be sentenced to a maximum imprisonment of 5 (five)
years.
Article 85 :
1. Every
health worker who intentionally practices without having STR as referred to in
Article 44 paragraph (1) shall be sentenced to a maximum fine of Rp.
100,000,000.00 (one hundred million rupiah).
2. Every
foreign health worker who intentionally provides health services without having
a temporary STR as referred to in Article 55 paragraph (1) shall be subject to
a fine of Rp. 100,000,000.00 (one hundred million rupiah).
Article 86 :
1. Every
health worker who practices without having a permit as referred to in Article
46 paragraph (1) shall be sentenced to a maximum fine of Rp. 100,000,000.00
(one hundred million rupiah).
2. Every
foreign health worker who intentionally provides health services without having
SIP as referred to in Article 55 paragraph (1) shall be subject to a maximum
fine of Rp. 100,000,000.00 (one hundred million rupiah).
In health practice, we often encounter
medical and dental malpractice, while for other health workers (nurses,
midwives, community health workers, nutritionists and pharmacists) we almost
never encounter them. This is because the losses caused by the malpractice of
these health workers, the community measures it only from the aspect of injury,
disability and death. Such losses are only caused by the malpractice of a
doctor or dentist, while the malpractice of other health workers generally only
results in material losses.
Malpractice that is often carried out by
health workers (doctors and dentists) is generally known to occur due to the
following things:
a)
Doctors or dentists lack knowledge of
medical practices that are generally accepted in the medical or dental profession;
b)
Providing medical or dental services
under professional standards;
c) Performing medical actions that are contrary to
the law.
If a health worker (doctor or dentist)
does the things mentioned above, then the person concerned violates the health law
or malpractice and can be subject to legal sanctions. For this reason, the
community or the patient can demand compensation for the negligence. For this
reason, the claimant or the community who wish to claim compensation must be
able to prove the existence of the following four elements: (Muhammad
1997)
a) There
is an obligation for health workers to sufferers or patients, but it is not
carried out;
b) The
health worker has violated the commonly used health (medical) service standards;
c) The
plaintiff or sufferer and or his family suffer a loss for which compensation
can be requested;
d) It
is clear (factual) that the loss was caused by an act below the standards or
provisions of the health/medical profession.
In order for a job to be called a
profession, some of the conditions that must be met are as follows:
1. There is specialization of work.
2. Based on expertise and skills.
3. Is fixed and continuous.
4. Prioritizing services over
rewards/income.
5. Have a high sense of responsibility
6. Grouped in a professional organization.
In
recent years, we have often heard and discussed about the practice of health
workers, whether doctors or midwives, who perform abortions. We often hear
about patients who become disabled and even die after being treated by doctors
or other health workers. Then the polemic that arose was that other health
workers, carried out an abortion, causing the patient to be disabled for life
and even to death.
Therefore,
the community, especially those affected by the case or whose family was
affected by the case, filed a lawsuit. This kind of phenomenon is good if done
proportionally, because this phenomenon shows the increasing public awareness
of health law. In addition, this phenomenon also shows the existence of public
awareness, especially patients about their rights or patient rights.
In
developed countries the phenomenon of malpractice and awareness of patient
rights has indeed occurred decades ago. In developing countries, especially
Indonesia, only about two decades ago. As the saying goes, it's better late
than never. This means that even though it is too late, it is better for us to
make the public aware of this malpractice problem and also about the rights of
patients to health workers, especially medical personnel.
Malapractice, comes from the
word "mala" which means wrong or inappropriate, while practice is the
process of handling cases (patients) from a professional in accordance with
work procedures that have been determined by his professional group, so that
what is wrong or deviates from standard provisions or procedures. (Correct). In
the health sector, malpractice is a deviation in the handling of cases or
health problems (including diseases) by health workers, causing adverse effects
for sufferers or patients. Negligence here is a common attitude that applies in
his profession. In the practice of medicine or dentistry, negligence is also
defined as performing a medical action below the service standard or the
standard of the medical profession.
Sanctions,
or sanctie, are legal consequences for violators of
the provisions of the law. There are administrative sanctions, there are civil
sanctions and there are criminal sanctions. Criminal sanctions, strafsanctie, legal consequences for violations of criminal
provisions in the form of crimes and/or actions.
Sanctions
are a means of coercion, forcing to enforce the law is forcing to heed legal
norms. The enforcement of criminal law requires legal sanctions, namely
sanctions consisting of special suffering imposed on the guilty. Suffering from
losing his life (death penalty), suffering from losing his freedom
(imprisonment and confinement), suffering from losing part of his wealth
(penalty of fines and confiscation) and suffering from losing his honor
(announcing the judge's decision). Enforcement of civil law requires sanctions
also consisting of suffering before a court and suffering from losing part of
their wealth in order to recover or compensate for losses due to violations
they have committed. Sanctions as a law enforcement tool can also consist of
the cancellation of an act that is a violation of the law. Both null and void
(van rechtswege) or void after this has been declared
by the judge. Violations of the procedural law often have sanctions for
cancellation, for example; cancel the allegation letter that does not mention
the element of place and/or time
CONCLUSION
The types of
punishment can be seen from the provisions of Article 10 of the Criminal Code.
Article 10 of the Criminal Code stipulates the existence of a basic sentence
and additional penalties. The main penalties are:
1. The death penalty;
2. Imprisonment;
3. Confinement;
4. Fines.
Additional penalties are:
1. Revocation of certain rights;
2. Confiscation/confiscation of certain goods, and
3. Announcement of judge's decision
The difference between
the main punishment and the additional punishment, is that the main punishment
apart from other punishments means that it can be imposed on the convicted
person independently. The additional punishment is only an addition to the main
punishment, so it cannot be imposed without the main punishment (not
independent).
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