Health Omnibus Law Series – Dispute Settlements between Health Personnel and Patients

This Newsflash is part of our Health Omnibus Law Newsflash series with respect to the issuance of Law No. 17 of 2023 dated August 8, 2023 on Health (the “Health Law”). As noted in our previous Newsflash, the Health Law is issued using an omnibus method. The Health Law revokes several laws in the health sector, including Law No. 36 of 2009 dated October 13, 2009 on Health (the “Previous Health Law”).

The Health Law governs a wide range of topics in the health sector, including the procedures of settling disputes arising between health personnels and patients.

We highlight the key dispute settlement related provisions under the Health Law, as follows.

♦ Obligation for Health Personnel to Form a Panel of Council in order to Uphold Professional Discipline

The Health Law acknowledges the importance of the enforcement of the Professional Discipline to all health personnel. The Health Law requires the Minister of Health of the Republic of Indonesia (the “Minister”) to form a panel of council to uphold and carry out the duties with respect to the Professional Discipline. The panel of councils may be formed permanently or on an ad hoc basis, at the Minister’s discretion.

The patients or their families whose interests are violated by an action of health personnel may submit a complaint to the panel of council. The complaint shall include at least the following information: (i) the identity of the complainant, (ii) the name and address of the place where the health personnel carry out his/her practice, and (iii) the reason for the complaint. Subsequently, the panel of council will determine whether or not there is a violation of Professional Discipline by the relevant health personnel in providing the health services.

The Health Law governs that any violation of Professional Discipline will be followed up with various forms of sanctions, including (i) a written warning, (ii) an obligation to attend certain education or training session(s) at education providers in the health sector or the nearest teaching hospital which has the competency to conduct the said training, (iii) suspension of the health personnel’s registration certificate (Surat Tanda Registrasi), and/or (iv) a recommendation of practice license (Surat Ijin Praktek) revocation.

Following the decision of the panel of council, under the Health Law it is possible for a patient and/or the relevant health personnel to file a petition for reconsideration (Peninjauan Kembali), as long as any of the following conditions is met: (i) new evidence is discovered, (ii) misapplication of disciplinary violations, or (iii) there was an alleged conflict of interest between the examiner and the examinee.

♦ Obligation for Panel of Council to Issue Recommendation Letters to Examine Health Personnel Suspected of Criminal Actions

Health personnel who are suspected of committing criminal actions may be subject to criminal sanctions. In this regard, the Health Law requires a Civil Servant Investigator Officer or the Indonesian National Police Officer to submit a written request to the panel of council to conduct an investigation on certain suspected health personnel. The panel of council is obliged to issue a recommendation letter within 14 (fourteen) days following the receipt of such written request. The Health Law specifically provides that the recommendation letter issued by the panel of council must contain a written statement to state whether or not the investigation may be carried out, along with the consideration and the basis of the recommendation.

We also note that a recommendation letter issued by the panel of council is not only obligatory for commencing investigation towards any health personnel who are suspected for conducting criminal acts, but also for health personnel who are suspected of conducting civil violations (e.g., causing damages or other material losses to the patients).

♦ Obligation for Health Personnel and Patients to Settle Amicably

In general, the Health Law recommends health personnel and patients to first attempt to settle any dispute amicably outside a court of law.

If the health personnel are suspected of carrying their profession in a manner that causes losses and damages to a patient, any dispute arising of that default shall first be settled through an alternative dispute resolution process outside a court of law.

We note that there are several distinctions in the provisions regarding dispute settlement between the Previous Health Law and the Health Law. The main differences of these two laws in this regard are: (i) the stipulations on the panel of council, (ii) the recommendation letters issued by the panel of council, and (iii) procedures of investigation which. These were not governed in the Previous Health Law.

We also note that the Health Law expressly stipulates that the provisions relating to dispute settlement between health personnel and patients as well as the panel of council, are to be further governed by a Government Regulation.

Accordingly, the implementation of the above provisions remains to be seen. We also anticipate that, considering the objections from the medical society with respect to certain provisions of the Health Law, it is possible the Health Law to be challenged by the medical society or other parties of interest to the Constitutional Court. We will monitor the development and will issue further updates as relevant.

September 18, 2023

AKSET

Please contact Johannes C. Sahetapy-Engel (jsahetapyengel@aksetlaw.com), Raymont Travis (rtravis@aksetlaw.com), or Esther Christie E. Marpaung (emarpaung@aksetlaw.com) for further information.

 

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