Health Omnibus Law Series – Patients' Consents For Medical Actions
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 Newsflashes, the Health Law is issued using an omnibus method, revoking several laws and regulations in the health sector (including, among others (i) Law Number 29 of 2004 on Medical Practices (“Law 29/2004”) and (ii) Law Number 36 of 2014 on Health Workers (“Law 36/2014”).
In brief, the Health Law is issued with the intention to enhance public health development for the achievement of national objectives in safeguarding the entire Indonesian citizen to advance the general welfare.
One of the key provisions under the Health Law is the provision on the approvals of medical or dental practice and healthcare workers actions. The several changes from the previous provisions stipulated in Law 29/2004 and Law 36/2014 are as follows:
Consolidation of Provisions Regarding Approval of Action by Medical or Dentistry Practice and Approval of Action by Health Worker
Previously, the approval of action by Medical or Dentistry Practice was stipulated under Law 29/2004, while the approval of action by Health Workers stipulated in a separate regulation i.e., the Law 36/2014. Currently, the Health Law consolidated these two provisions under Paragraph 5 of the Health Law regarding the Approval of Action by Healthcare Services.
The Health Law also governs the new term i.e., "Medical Action" to describe and cover the actions that undertaken by both Physicians or Dentists
Additional Prior Explanation for Obtaining Consent from Patients
Article 45(3) of Law 29/2004 and Article 68(3) of Law 36/2014 govern a similar specific explanations that must be provided before the patients were requested to grant a consent for the action of the health service, which are as follows:
[Article 45, paragraph (3) of Law 29/2004]
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- diagnosis and medical procedure methods;
- purpose of the medical procedure;
- alternative procedures and the risks;
- possible risks and complications; and
- prognosis of the procedure.
[Article 68, paragraph (3) of Law 36/2014]
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- procedures for healthcare services;
- purpose of the healthcare service procedure;
- alternative procedures;
- potential risks and complications; and
- prognosis of the procedure.
Similar to the above, the Health Law also govern the same provisions with the above with the additional explanation on the (i) indications and (ii) risks if the action was not performed. We set out below the provision on the explanation obligation under Article 293 paragraph (3) of the Health Law:
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- diagnosis;
- indications;
- performed Healthcare Service Actions and their purposes;
- potential risks and complications;
- alternative procedures and their risks;
- risks if the action was not performed; and
- prognosis after undergoing the action.
♦ Requirement of the Written Consent
Previously, Law 29/2004 and Law 36/2014 only govern that written consent must be signed by the patient or their representative. Currently, Article 293 paragraph (8) of the Health Law specifically govern that the signing of written consent must be witnessed by a Medical Professional or Healthcare Worker.
Emergency Action Consent
Please note that Law 29/2004, Law 36/2014, and Health Law govern the exemption of obtaining consent for emergency actions in order to protect the patient's best health needs, e.g., in the condition to preserve life and/or prevent disability for the patients. In this regard, Article 293, paragraph (9) of Health Law further stipulates that the consent is not required, if in such emergency situation, the patient was not eligible to provide consent and there was also no other person eligible for providing such consent for the patient.
♦ Requirement of Explanation on Health Service Cost
Article 294 of the Health Law stipulates that patients are entitled to receive explanations from Healthcare Facilities with respect to the costs of the Healthcare Services they received. This provision in the Health Law complements the provision under Law 36/2014, which does not cover the explanation of cost calculation for the performed procedures, and Article 45, paragraph (3) of Law 29/2004, which only broadly mentions that patients should be provided with explanations regarding the incurred cost. The explanation of the cost as stipulated on Health Law is to give the patient the hospital price transparency and to prevent the medical bill surprise.
♦ Requirement on the Health Service Programs from the Government
Article 295 of Health Law stipulates that the Health Services Program from the government does not need a consent from patients. However, the healthcare services must still be communicated to the recipients of those health services. This provision aligns with the provision in Article 69 of Law 36/2014 and Article 15 of Ministerial Regulation 290/2008 concerning Approval of Medical Actions, which is a derivative regulation of Law 29/2004.
October 30, 2023
AKSET
Please contact Johannes C. Sahetapy-Engel (jsahetapyengel@aksetlaw.com), Raymont Travis (rtravis@aksetlaw.com), or Azzahra Saffanisa Sudiardiputri (asudiardiputri@aksetlaw.com) for further information.
Disclaimer:
The foregoing material is the property of AKSET and may not be used by any other party without prior written consent. The information herein is of general nature and should not be treated as legal advice, nor shall it be relied upon by any party for any circumstance. Specific legal advice should be sought by interested parties to address their particular circumstances.
Any links contained in this document are for informational purposes and are available and relevant at time this publication is made. We provide no liability whatsoever in respect of any information or content in such links.
Health Omnibus Law Series – Patients' Consents For Medical Actions
Newly Enacted E-Commerce Regulation
In order to protect the interests of micro, small and medium enterprises (SMEs) in Indonesia, on September 25, 2023, the Minister of Trade (“MOT”) issued Regulation No. 31 of 2023 on Business Licensing, Advertising, Guidance and Supervision of Business Actors in Trade via Electronic Systems (“Regulation 31/2023”). Regulation 31/2023 repeals and replaces the MOT Regulation No. 50 of 2020 dated November 19, 2020 (“Regulation 50/2020”).
In Regulation 31/2023 the MOT aims at addressing the concerns of offline shops that claim to be adversely impacted by e-commerce or online shops. Several provisions, particularly the requirements of business registrations under Regulation 50/2020, are retained in Regulation 31/2023. however, new provisions that elaborate further on definitions, business models, and restrictions are introduced in the newly enacted regulation.
We highlight the key changes under Regulation 31/2023 as follows.
♦ Classifications of E-commerce Business Models
Previously, under Regulation 50/2020, merchants or sellers that engaged in trading activities via electronic systems (the “Merchants”) were allowed to advertise their goods or services on social media platforms, including providing direct payment features in such platforms for online trading transactions.
Regulation 31/2023 now specifies the business models of e-commerce into the following: (i) Online Retail; (ii) Marketplace; (iii) Online Classified Advertisements; (iv) Price Comparison Platforms; (v) Daily Deals; and (vi) Social Commerce. With Regulation 31/2023, there is a distinction between a marketplace and a social commerce platform. A marketplace is defined as a provider of facilities in which a part or the entire transaction process is in an Electronic System in the form of a commercial website or an application for Merchants to be able to place offers for goods and/or services (the “Marketplace”). Meanwhile, a social commerce platform is defined as a social media provider that provides certain features and/or facilities that enable Merchants to place offers for goods and/or services (the “Social Commerce”). Further, Regulation 31/2023 prohibits the Marketplace and the Social Commerce from acting as manufacturers.
Both the Marketplace and the Social Commerce are business models that are acknowledged under the non-exhaustive list of business models under Regulation 31/2023. However, considering the above definitions, unlike the Marketplace which may accommodate the transaction process in the platform, the Social Commerce is only allowed to facilitate promotion by way of advertising the goods and/or services and is prohibited from facilitating payment transactions in the platform.
In accordance with the above, social media platforms that fall within the definition of the Social Commerce are now prohibited from facilitating payment transactions. Regulation 31/2023 provides clear guidance that in the event that any social media platform wishes to carry out business by providing facilities, including payment transactions within its platform, such platform must first obtain the required business license as an e-commerce organizer.
♦ Requirements for Foreign E-commerce Merchants
Regulation 31/2023 further sets out additional requirements for foreign e-commerce Merchants such as the provision of evidence for compliance with standards or technical requirements and bank account numbers in addition to the identity of the foreign Merchant and proof of business license(s).
Previously, under Regulation 50/2020, foreign e-commerce was required to establish a representative office in the form of a Foreign Trade Company Representative Office (Kantor Perwakilan Perusahaan Perdagangan Asing or a “KP3A”) if it meets any of the following criteria: (i) it conducted transactions with a minimum of 1,000 consumers within one year; and/or (ii) it delivered at least 1,000 packages to consumers within one year.
Now, Regulation 31/2023 sets out another criterion in relation to such requirement, namely it has had traffic or access from at least 1% of internet users within Indonesia within a one-year period. Further, such KP3A must also obtain a business license as a foreign trade company representative (Surat Izin Usaha Perwakilan Perusahaan Perdagangan Asing) in the field of e-commerce which will be issued by the Online Single Submission (OSS) Agency. A foreign e-commerce’s KP3A may not also represent more than one foreign e-commerce.
♦ Other Restrictions
Regulation 31/2023 further regulates matters related to fair competition among Merchants engaging in trading via electronic systems. Under Regulation 31/2023, e-commerce organizers are required to actively participate in preventing price manipulation practices by ensuring: (i) there is no connection or interconnection between the electronic systems used for e-commerce purposes and other electronic systems that are operated outside the e-commerce facility; and (ii) there is no misuse of user data within their electronic systems or by affiliated companies.
Furthermore, Regulation 31/2023 requires e-commerce organizers that engage in cross-border trading activities to apply a minimum Freight on Board USD100 per unit for Merchants selling imported finished goods to Indonesia. Regulation 31/2023 states that the MOT shall determine a Positive List which list will specify the imported goods allowed to be directly sold from abroad to Indonesia through e-commerce organizers.
♦ Effects on Merchants
Based on the above, we note that the key provisions introduced in Regulation 31/2023 create more rigid provisions and restrictions on the activities of the overall online platforms specifically for e-commerce organizers within social media platforms. Additionally, Regulation 31/2023 raises the minimum barrier for foreign merchants in setting prices to increase the opportunity for domestic goods, as well as to protect local merchants that are small-scale businesses, in order to compete with foreign goods and Merchants.
October 25, 2023
AKSET
Please contact Johannes C. Sahetapy-Engel (jsahetapyengel@aksetlaw.com), Clara Anastasia So (canastasia@aksetlaw.com), or Rae Chalista (rchalista@aksetlaw.com) for further information.
Disclaimer:
The foregoing material is the property of AKSET and may not be used by any other party without prior written consent. The information herein is of general nature and should not be treated as legal advice, nor shall it be relied upon by any party for any circumstance. Specific legal advice should be sought by interested parties to address their particular circumstances.
Any links contained in this document are for informational purposes and are available and relevant at time this publication is made. We provide no liability whatsoever in respect of any information or content in such links.
Newly Enacted E-Commerce Regulation
Land Allocation for Investment Arrangement
On October 16, 2023, the President of Republic of Indonesia issued Presidential Regulation No. 70 of 2023 on Land Allocation for Investment Arrangement (“PR 70/2023”). As a background, PR 70/2023 was issued based on the awareness of the Government to increase the effectiveness and efficiency in the utilization of resources for equal investment and public welfare. Further, the Government intends to realize the land allocation distribution in the mining, plantation, and forest sectors for village-owned enterprises, region-owned enterprises, business entities owned by social organizations, cooperatives, and small and medium-size enterprises.
We set out below the key provisions of PR 70/2023.
♦ Key Definitions
It is important to note several definitions provided under the PR 70/2023, as follows:
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- The Task Force for Land Use Arrangement and Investment Arrangement is defined as a task force established by the President of Republic Indonesia in order to arrange the fair land use, arrangement of business licensing for mining, plantation, and forest sector, as well as to increase the effectiveness and efficiency to optimize the utilization of natural resources (the “Task Force”).
- Land is defined as land area designated for mining activities and concession of the utilization of forest or plantation areas.
- The Sector Supervisor (Pembina Sektor) is defined as the Ministers who organize the government affairs in the (i) energy and mineral resources, (ii) environmental and forestry, (iii) plantation, and/or (iv) agrarian/land and spatial planning.
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♦ Duties of Task Force
Article 2(1) of PR 70/2023 stipulates that the duties of the Task Force are, among others:
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- Mapping the use of the land for mining, plantation, and forest utilization activities as a result of the change/revocation of business licensing and concession permits in the forest area;
- Provide the recommendation to the minister/head of agency that administers the Government affairs in the field of investment/coordination on capital investment (Kepala Badan Koordinasi Penanaman Modal or the “Head of BKPM”) to carry out the revocation of business licensing for the mining, plantation as well as concession permits in the forest area; and
- Carry out Land classifications and determine fair allocations of Land in an effort to provide benefits for public welfare.
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♦ Evaluation of Implementation of Business Activities by Sector Supervisor
Article 3(1) of PR 70/2023 provides that the Sector Supervisor shall carry out an evaluation of the business actors on their business licenses in mining, concession permits in the forest area, or plantation sector in accordance with their relevant business licenses. The Sector Supervisor carries out the evaluation of the implementation of business activities on the following factors, among others:
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- Realization of the implementation of business activities in accordance with the purpose of business licenses;
- Completeness of the basic requirements and other relevant licenses and/or concession permits; and/or
- Suitability of the implementation of business activities with the Land designation.
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Based on the above evaluation, pursuant to Article 3(3) of PR 70/2023, the Sector Supervisor shall convey the evaluation report to the Task Force to make changes to the business licenses relating to the reduction of Land area, revocation of business licenses, and/or revocation of concession permits in the forest area.
According to Article 3(4) of PR 70/2023, thereafter, the Task Force shall convey its recommendation to the Head of BKPM to (i) make changes to the business licenses relating to the reduction of Land area; (ii) revoke the business licenses; and/or (iii) revoke the concession permits in the forest area. As for the use of the Land, the Task Force shall convey the recommendation on the deletion of the rights of the land to the minister that administers government affairs in the agrarian/land and spatial planning sector (the “Minister of Agrarian Affairs”).
In light of the above, in accordance with Articles 3(6) and (7) of PR 70/2023, based on the recommendations from the Task Force, the Head of BKPM shall issue the decree letter(s) on the change of business licenses relating to the reduction of the Land, revocation of the business licenses, and/or the revocation of concession permits in the forest area. As for the Minister of Agrarian Affairs, after receiving the recommendations from the Task Force, the Minister of Agrarian Affairs shall delete the rights of the land in accordance with the prevailing laws and regulations.
♦ Classifications of Utilization and Allocation of Land
After the evaluation as elaborated above, in accordance with Article 4(1) of PR 70/2023, the Task Force shall conduct the classifications of the utilization and allocation of the Land. Article 4(4) of PR 70/2023 stipulates that the Land classifications includes (i) the economical potentials, or the natural wealth contained therein; (ii) suitability of the spatial planning with the business activities; (iii) land capacity and environmental protection. Further, based on Article 4(5) of PR 70/2023, the re-allocation of the Land shall be given to the following business actors:
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- village-owned enterprises;
- region-owned enterprises;
- business entities owned by social organizations;
- cooperatives;
- small and medium-size enterprises; or
- large enterprises.
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♦ Allocation of Land for Mining Activities
Based on Article 5(1) of PR 70/2023, based on the classifications of the utilization and allocation of Land, the Sector Supervisor (i.e., the Minister of Energy and Mineral Resources) delegates its authority to determine, offer, and grant Mining Business Permit Areas (Wilayah Izin Usaha Pertambangan or “WIUP”) to the Head of BKPM. Please note that according to Article 5(2) of PR 70/2023, the authority to determine, offer, and grant the WIUP by the Head of BKPM is for the Land derived from the revocation of business licenses before PR 70/2023 is issued. Based on such WIUP, the Head of BKPM conducts an offer and grants the WIUP to the business actor(s). Thereafter, in accordance with Article 5(4) of PR 70/2023, after receiving the WIUP, the business actor shall apply for Mining Business Permit (Izin Usaha Pertambangan or an “IUP”) through the OSS system.
♦ Allocation of Land for Concession Permits in Forest Areas
Based on Article 7(1) of PR 70/2023, the concession permits in the forest areas include (i) the approval of the forest utilization (persetujuan penggunaan kawasan hutan); (ii) the approval of the forest area relinquishment (persetujuan pelepasan kawasan hutan); (iii) the business license of forest utilization; and/or (iv) the business license for the provision of natural tourism facilities (izin usaha penyediaan sarana wisata alam). Article 7(2) of PR 70/2023 further stipulates that the Sector Supervisor (i.e., the Minister of Environment and Forestry) delegates its authority to issue the determination of forest area direction map (peta arahan kawasan hutan or the “Forest Area Map”) and investment arrangement on the Land that has been reduced or revocation of concession permits in forest area to the Head of BKPM.
In accordance with Article 7(3) of PR 70/2023, based on the Forest Area Map and the investment arrangement, the Task Force shall offer the available Land in the forestry sector to business actors. Pursuant to Article 7(4) of PR 70/2023, for a business actor who is interested in the offer of available Land in the forestry sector, the Task Force shall evaluate such business actor based on certain aspects, namely, (i) the potential land area; (ii) completeness of administrative/management requirements; (iii) technical aspect and environmental management; and (iv) financial support. Further, if the business actor fulfils the requirements, the business actor shall apply for the concession permits through the OSS system.
♦ Allocation of Land for Plantation Activities
According to Article 8(1) of PR 70/2023, the Head of BKPM shall determine the availability of the Land in the plantation area that may be allocated to business actors. Thereafter, the Task Force shall offer based on such available Land to business actors. Under Article 8(3) of PR 70/2023, for a business actor who is interested in the offer, the Task Force shall evaluate such business actor based on the same aspects as the concession permits in forest areas (please see the aspects in the allocation of land for concession permits in forest areas’ section above). If the business actor fulfils the requirements, the business actor shall apply for conformity of space utilization activities (Kesesuaian Kegiatan Pemanfaatan Ruang or an “KKPR”) through the OSS system, and the Minister of Agrarian Affairs shall issue the KKPR through the OSS system. Thereafter, the business actor shall apply for the application of the rights of the land to the Minister of Agrarian Affairs.
October 20, 2023
AKSET
Please contact Johannes C. Sahetapy-Engel (jsahetapyengel@aksetlaw.com) and M. Raehan A. Fadila (mfadila@aksetlaw.com) for further information.
Disclaimer:
The foregoing material is the property of AKSET and may not be used by any other party without prior written consent. The information herein is of general nature and should not be treated as legal advice, nor shall it be relied upon by any party for any circumstance. Specific legal advice should be sought by interested parties to address their particular circumstances.
Any links contained in this document are for informational purposes and are available and relevant at time this publication is made. We provide no liability whatsoever in respect of any information or content in such links.
Land Allocation for Investment Arrangement
Mandatory Reporting of Job Vacancies
On September 25, 2023, President Joko Widodo enacted Presidential Regulation No. 57 of 2023 on Mandatory Reporting of Job Vacancies (“PR 57/2023”). PR 57/2023 became effective as of September 25, 2023.
PR 57/2023 aims at optimizing the placement of workers within the job markets and to reduce the unemployment rate at the national level. PR 57/2023 revokes and replaces Presidential Decree No. 4 of 1980 (“PD 4/1980”) on the same matter.
Unlike PD 4/1980 that required job vacancy reporting in writing, under PR 57/2023 the reporting shall be conducted within the manpower services related platform, called the Manpower Information System, that is conveniently accessible via the internet for the purpose of reporting of job vacancies.
In essence, PR 57/2023 provides provisions regarding employers’ obligation to report job vacancies in Manpower Information System and the sanction in the event of non-compliance.
We set below several key points related to the above matters regulated under PR 57/2023.
♦ Mandatory Reporting of Job Vacancies
The primary focus of PR 57/2023 is the mandatory reporting of job vacancies by employers to the Minister of Manpower (the “MOM”) through the Manpower Information System. For this purpose, PR 57/2023 defines an employer as any individual, company, legal entity, or any other body that employs any employee and pays salary or any other compensation (to such employee) in any form.
This reporting obligation extends to both domestic and international job vacancies. Specifically for international job vacancies, it shall be reported through integration with the Manpower Information System and in compliance with laws and regulations on the placement and protection of migrant workers.
The mandatory job reporting mechanism starts with the employers’ report of the job vacancies to the MOM through the Manpower Information System. Kindly note that this reporting is free of charge. Following this report, the officials at the MOM shall verify such report. Once verified, such job vacancies will become openly accessible to the job seekers, employers, and the Government. Kindly note that once the relevant job position has been filled, it is also obligatory for employers to notify the MOM through the Manpower Information System.
It should also be noted that further details on the procedure for the reporting of domestic job vacancies and the procedure for the reporting of job vacancies being filled shall be further regulated under an MOM regulation.
In this regard, PR 57/2023 provides the following definitions on job seekers:
- Members of the workforce who have never worked and who are trying to secure a job;
- Members of the workforce who have previously worked but who for some reason have discontinued working or been dismissed and who are trying to secure a job; or
- Members of the workforce who are working or who already have a job but who for some reason are still trying to find additional employment.
♦ Utilization of Job Vacancies Information
The job vacancies information that has been reported and submitted to the Manpower Information System shall be publicly-accessible information and available at no cost for jobseekers, employers, and the Government. Based on PR 57/2023, the reporting of domestic job vacancies shall include the following information: Employers’ identities; Titles of the position and the required number of employees; Positions’ requirements, including information such as age, gender, education, skills, experiences, salary, domicile, and other relevant requirements.
It is worth mentioning that such job vacancies’ information may be utilized for various purposes by relevant parties, including the employment of suitable talents, the creation of employment plans, job placement plan, job market analysis, training demand analysis, unemployment benefits program and so forth.
♦ Awards and Sanctions
Under PR 57/2023, the MOM, relevant governors, or mayors/regents may present awards in the form of plaques or other types of awards to employers who report their job vacancies’ information. Conversely, the non-compliance with the mandatory domestic job vacancies reporting and the mandatory job position fulfilled reporting will result in the imposition of administrative sanctions in the form of written warnings.
In this regard, PR 57/2023 does not provide any details relating to either the granting of awards or the imposition of administrative sanctions. Instead, PR 57/2023 provides that both details shall be further regulated under an MOM Regulation.
October 12, 2023
AKSET
Please contact Johannes C. Sahetapy-Engel (jsahetapyengel@aksetlaw.com), Thomas P. Wijaya (twijaya@aksetlaw.com), or Rizky Rakhmadita (rrakhmadita@aksetlaw.com) for further information.
Disclaimer:
The foregoing material is the property of AKSET and may not be used by any other party without prior written consent. The information herein is of general nature and should not be treated as legal advice, nor shall it be relied upon by any party for any circumstance. Specific legal advice should be sought by interested parties to address their particular circumstances.
Any links contained in this document are for informational purposes and are available and relevant at time this publication is made. We provide no liability whatsoever in respect of any information or content in such links.
Mandatory Reporting of Job Vacancies
Health Omnibus Law Series – Health Law Replaces Law No. 44 of 2009 on Hospitals
This Newsflash is a part of our Health Omnibus Law Newsflash Series on the issuance of Law No. 17 of 2023 dated August 8, 2023 on Health (the “Health Law”). The Health Law governs a wide range of topics in the health sector, including provisions on hospital matters. The Health Law repeals and replaces several laws including Law No. 44 of 2009 dated October 28, 2009 on Hospitals (the “Hospital Law”).
This Newsflash discusses the pertinent changes on hospitals. Please see below the notable provisions related to Hospitals under the Health Law.
♦ General Overview on Hospitals
Previously, the Hospital Law defined a hospital as a health service institution that organizes a complete individual health services that provides inpatient, outpatient and emergency services. As for patients, under the Hospital Law a patient was defined as any person who consults about his or her health problems to obtain the necessary health services, either directly or indirectly at a Hospital.
Now, the Health Law introduces more thoroughs definitions of a hospital and a patient. Under the Health Law, a hospital is defined as a health service facility that organizes a complete individual health services through promotive, preventive, curative, rehabilitative and/or palliative health services by providing inpatient, outpatient and Emergency Care services. A patient is defined as any person who obtains the health services from medical personnel and/or healthcare personnel.
♦ Notable Changes in Health Law
In the Hospital Law, a hospital could be designated as a teaching hospital after the requirements and standards were met. It was also stated that the title of teaching hospitals would be determined by the Minister of Education and Culture of the Republic of Indonesia.
The Health Law now regulates certain new provisions about teaching hospitals, including the new definition of a teaching hospital which is defined as a hospital that has a function as a place of education, research and healthcare services in an integrated manner in the education for medical personnel and healthcare personnel sector as well as multi-professional continuing education.
Under the Health Law, a teaching hospital shall cooperate with a higher education institution to organize an academic education program, a vocational program, and a professional program, including a specialist, or a subspecialist program. In organizing the education, a teaching hospital must meet the requirements, standards and accreditation.
After such fulfilment of the requirements as stated above, the Minister of Education and Culture, along with the relevant accreditation bodies, will grant a permission to a teaching hospital.
♦ Obligations and Rights of Hospitals and Patients
Obligations of Hospitals
Pursuant to the Health Law, a Hospital is required to perform the following obligations:
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- to provide correct information about Hospital services to the public;
- to provide the health services that is safe, quality, anti-discriminatory with prioritizing patients’ interests in accordance with hospital service standards;
- to provide emergency services to patients according to their service capabilities;
- to play an active role in providing health services in the event of disasters according to its services ability;
- to provide facilities and services for underprivileged community or people;
- to carry out social functions, among others, by providing service facilities for underprivileged patients, emergency services without down payment, free ambulance, service for victims of disasters and extraordinary events, or social services for humanitarian missions;
- to create, implement, and maintain the quality standards of health services in hospitals as a reference in serving patients;
- to organize medical records;
- to provide proper public facilities and infrastructures, including places of worship, parking lots, waiting rooms, facilities for persons with disabilities, breastfeeding women, children and the elderly;
- to implement a referral system;
- to reject the patient's wishes that are contrary to professional and ethical standards and applicable regulations;
- to provide correct, clear and honest information regarding the rights and obligations of a patient;
- to respect and protect the rights of a patient;
- to implement the hospital ethics;
- to have an accident prevention and disaster management system;
- to implement the government programs in the health sector, both regionally and nationally;
- to make a list of medical personnel who practice medicine or dentistry and other healthcare personnel;
- to formulate and implement internal regulations of the Hospital;
- to protect and provide legal assistance to all of the staff members of the hospital in carrying out their tasks; and
- to enforce the entire hospital environment as a smoke-free area.
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The Health Law does not introduce any changes with respect to the obligations of hospitals as listed above. However, the Health Law introduces a set of obligations for Health Services Facilities which include hospitals. Therefore, a hospital will be subject to the following obligations set out for the Health Services Facilities:
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- to provide broad access to the needs of services, education, research and service development in the health sector;
- to organize quality health services and prioritizing a patient’s safety;
- to organize medical records;
- to report on the results of services, education, research and development to the Central Government with a copy to the relevant Regional Government through the Health Information System;
- to make efforts to utilize the results of services, education, research and development in a system as an effort to overcome health problems in the regions; and
- to establish the standard operating procedures with reference to health services standards.
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Rights of Hospitals
The Health Law stipulates that a hospital has the following rights:
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- to determine the number, types, and qualifications of human resources according to the hospital’s classification;
- to receive compensation for services and determine remuneration, incentives, and awards according to the provisions of laws and regulations;
- to cooperate with other parties in developing services;
- to receive assistance from other parties in accordance with the provisions of laws and regulations;
- to claim any party that causes losses to the hospital;
- to obtain legal protection in implementing health services; and
- to promote health services in hospitals in accordance with prevailing laws and regulations.
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Obligations of Patients
In relation to the obligations and rights of patients, the Health Law determines the following obligations of patients:
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- to provide complete and honest information about their health problem;
- to comply with the advice and instructions of Medical Personnel and Healthcare Personnel;
- to comply with the provisions that apply to Health Service Facilities; and
- to pay compensation for services received.
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Rights of Patients
Patients have the following rights:
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- to obtain information about their own health;
- to obtain adequate explanation regarding the Health Services they receive;
- to obtain the Health Services in accordance with medical needs, professional standards, and services quality;
- to refuse or agree to any medical action, except for a medical action required for prevention of infectious diseases and management of outbreaks or extraordinary events;
- to have an access to the information contained in the medical records;
- to ask for the opinion of Medical Personnel or Healthcare Personnel; and
- to obtain other rights in accordance with applicable laws and regulations.
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We note that the Health Law does not introduce any major change with respect to the obligations and rights of Hospitals and Patients as set out under the previous Hospital Law.
♦ Hospital Legal Protection and Legal Responsibility
The Health Law provides that a hospital is not legally responsible if a patient and/or his or her family refuses or discontinues a treatment which may result in the death of the patient after a comprehensive medical explanation.
A hospital may not be prosecuted for carrying out its duties in saving human lives.
As to the legal responsibility, the Health Law provides that a hospital may be held legally responsible for all losses incurred due to negligence carried out by the health personnel of the hospital.
Please note that the implementing regulations of the Hospital Law continue to be valid as long as the regulations are not contrary to the Health Law.
September 19, 2023
AKSET
Please contact Johannes C. Sahetapy-Engel (jsahetapyengel@aksetlaw.com), Thomas P. Wijaya (twijaya@aksetlaw.com), or Rae Chalista (rchalista@aksetlaw.com) for further information.
Disclaimer:
The foregoing material is the property of AKSET and may not be used by any other party without prior written consent. The information herein is of general nature and should not be treated as legal advice, nor shall it be relied upon by any party for any circumstance. Specific legal advice should be sought by interested parties to address their particular circumstances.
Any links contained in this document are for informational purposes and are available and relevant at time this publication is made. We provide no liability whatsoever in respect of any information or content in such links.
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.
Disclaimer:
The foregoing material is the property of AKSET and may not be used by any other party without prior written consent. The information herein is of general nature and should not be treated as legal advice, nor shall it be relied upon by any party for any circumstance. Specific legal advice should be sought by interested parties to address their particular circumstances.
Any links contained in this document are for informational purposes and are available and relevant at time this publication is made. We provide no liability whatsoever in respect of any information or content in such links.
Health Omnibus Law Series – Health Information System
This Newsflash is a part of our Health Omnibus Law Newsflash series, i.e., Law No. 17 of 2023 dated August 8, 2023, on Health (the “Health Law”). The Health Law governs a wide range of topics in the health sector, including health information systems (the “System”).
As previously noted, the Health Law was issued using the omnibus method. The Health Law revokes several laws and regulations in the health sector, including Law No. 36 of 2009 dated October 13, 2009 on Health.
♦ Key Definitions
Before we discuss the System, it is important to note the following definitions provided in the Health Law:
- System is defined as systems that integrate various stages of processing, reporting, and use of necessary information to increase the effectiveness and efficiency of health administration and directing actions or decisions that are useful in supporting health development;
- National System is defined as a System that is managed by the ministry which carries out government affairs in the health sector that integrates and standardizes all Systems in supporting health development.
♦ General Information on the System
Pursuant to Article 345(2) of the Health Law, the System shall be carried out by the (i) the Central Government, (ii) Regional Governments, (iii) health services facilities, and (iv) public community, whether an individual or an organization (collectively be referred to as the “Organizer”).
In this regard, Article 345(3) of the Health Law stipulates that the Organizer must integrate the System with the National System.
♦ Health Information Governance
Articles 346(3) and (4) of the Health Law provide that health information governance shall be carried out in accordance with the architecture of the System designed by the Minister of Health.
Based on Article 346(6) of the Health Law, the Organizer must conduct the data processing and health information in Indonesia. Article 347(1) of the Health Law stipulates that the Organizer is required to ensure the reliability of the System, which covers the (i) availability, (ii) security, (iii) maintenance, and (iv) integration.
Furthermore, Article 347(2) of the Health Law provides that the reliability of the System shall be conducted by way of (i) suitability of the system testing, (ii) maintaining the confidentiality of the data, (iii) determining data access rights policies, (iv) owning the system reliability certification, and (v) conducting regular audit.
In addition, Article 348(2) of the Health Law provides that the public shall be able to access public data and/or their own health data via the Organizer of a System that is integrated into the National System in accordance with the provisions of the prevailing laws and regulations.
Further, the Organizer must conduct the data processing and health information, which covers (i) planning, (ii) collection, (iii) storage, (iv) examination, (v) transfer, (vi) utilization, and (vii) demolishment.
According to Article 350(1) of the Health Law, the System shall contain data and information from (i) health services facilities, (ii) the Central Government and Regional Government Agencies, (iii) social security agencies, (iv) other agencies that engage in the health sector, (v) public community activities other than health service facilities, (vi) individual self-reporting, and (vii) other sources.
Article 351(1) of the Health Law provides that the Organizer of the System must ensure the data protection and health information of every individual.
Further, Article 351(2) of the Health Law stipulates that the data processing and health information that uses the health data of an individual must obtain an approval from the data owner and/or fulfill other provisions as the basis of the personal data processing in accordance with the prevailing laws and regulation in the personal data protection sector. This refers to Law No. 27 of 2022 on Personal Data Protection. Please click the following link for our newsflash on the Personal Data Protection Law: The Highly-Awaited Indonesian Personal Data Protection Law Is Passed.
An owner of the data is entitled to (i) obtain information with respect to the purpose of the collection of individual health data, (ii) access and rectify the data and information through the Organizer, (iii) request the Organizer to send his/her data to other Organizer, (iv) obtain the rights of other personal data subjects in accordance with the provisions of laws and regulations invitation in the field of personal data protection.
As mandated by Article 456 of the Health Law, all of the implementing regulations of the Health Law (including the ones relating to Systems) shall be issued at the latest 1 (one) year from the enactment of the Health Law.
September 14, 2023
AKSET
Please contact Johannes C. Sahetapy-Engel (jsahetapyengel@aksetlaw.com), Radiansyah S. Yamin (ryamin@aksetlaw.com), and M. Raehan A. Fadila (mfadila@aksetlaw.com) for further information.
Disclaimer:
The foregoing material is the property of AKSET and may not be used by any other party without prior written consent. The information herein is of general nature and should not be treated as legal advice, nor shall it be relied upon by any party for any circumstance. Specific legal advice should be sought by interested parties to address their particular circumstances.
Any links contained in this document are for informational purposes and are available and relevant at time this publication is made. We provide no liability whatsoever in respect of any information or content in such links.
Health Omnibus Law Series – Health Information System
Health Omnibus Law Series – Utilization of Indonesian and Foreign Medical and Health Personnels
This Newsflash is a part of our Health Omnibus Law Newsflash series, i.e., Law No. 17 of 2023 dated August 8, 2023 on Health (the “Health Law”). The Health Law governs a wide range of topics in the health sector, including utilization of local and foreign health personnel.
As previously noted, the Health Law is issued using the omnibus method. The Health Law revokes several laws and regulations in the health sector, including (i) Law No. 36 of 2009 dated October 13, 2009 on Health (the “Previous Health Law”), and (ii) Law No. 36 of 2014 dated October 17, 2014 on Health Personnel (the “Health Personnel Law”).
We highlight the main changes pertaining to the utilization of Indonesian and Foreign Medical Personnel and Health Personnel as follows.
♦ Rights and Obligations of Medical and Health Personnel
Prior to the Health Law, provisions relating to the rights and obligations of Medical Personnel and Health Personnel were insufficient and governed under certain implementing regulations of the Previous Health Law. Under the Health Law, the rights of Medical Personnel and Health Personnel are as follows: (i) to receive legal protection as long as they carry out the duties in accordance with professional standards, service standards, standard operating procedures, and professional ethics, as well as needs of a patient’s health, (ii) to receive complete and correct information from the patient or his/her family, (iii) to receive adequate salary/wages, compensation for services, and performance allowances in accordance with applicable laws and regulations, (iv) to receive protection for safety, occupational health, and security, (v) to receive health insurance and employment insurance in accordance with the applicable laws and regulations, (vi) to receive protection from treatment that is contrary to human dignity, morals, decency, and socio-cultural values (including acts of violence, harassment, and bullying), (vii) to receive an award in accordance with the applicable laws and regulations, (viii) to receive opportunity to develop themselves through competency development, knowledge, and career in his/her profession, (ix) to reject the wishes of the patient or other parties that are contrary to professional standards, service standards, standard operating procedures, the code of ethics, or applicable laws and regulations, and (x) to have other rights in accordance with the applicable laws and regulations.
On the other hand, in practicing medicine, the Medical Personnel and Health Personnel shall carry out the following obligations: (i) to provide health services in accordance with professional standards, service standards, standard operational procedures, and professional ethics as well as patient’s health needs; (ii) to obtain an approval from a patient or his/her family for any action to be administered, (iii) too keep a patient’s health confidential, (iv) to prepare and maintain records and/or documents regarding examinations, care, and actions taken, and (v) to refer patients to the Medical Personnel or Health Personnel who have the competence and appropriate authority.
We note that the Health Law expressly stipulates that provisions on the majority of matters governed under the Health Law are to be further governed in Presidential Regulations, Government Regulations, and Minister of Health Regulations. Having said this, the implementation of the Health Law, particularly on the eligibility of foreign medical professionals to practice in Indonesia, remains to be seen. We also anticipate that, considering the objections from certain medical society, there is a possibility for the Health Law to be challenged by the medical society or other parties of interest through the Constitutional Court or Mahkamah Konstitusi.
♦ Eligibility for Indonesian and Foreign Overseas Graduate Medical Personnel and Health Personnel to Practice in Indonesia
The Health Law introduces the eligibility for Indonesian and foreign overseas graduate Medical Personnel or Tenaga Medis (e.g., doctors and dentists) and Health Personnel or Tenaga Kesehatan (e.g., nurses) to practice in Indonesia by fulfilling certain requirements and obtaining certain licenses.
The Health Law stipulates that in order to practice in Indonesia, Indonesian overseas graduate Medical Personnel and Health Personnel are subject to a competency evaluation (i.e., administrative completeness and practice capability assessments) by the Ministry of Health (the “MOH”). Such Medical Personnel and Health Personnel shall then participate in an adaptation program at a Health Service Facility or Fasilitas Pelayanan Kesehatan by firstly obtaining a Registration Certificate (Surat Tanda Registrasi or an “STR”) and a Practice License (Surat Izin Praktik or an “SIP”).
Similarly, foreign overseas graduate Medical Personnel and Health Personnel who intend to practice in Indonesia are subject to a competency evaluation. However, this only applies to specialist and sub-specialist Medical Personnel and Health Personnel with a certain competency level. Such Medical Personnel and Health Personnel shall also participate in an adaptation program by firstly obtaining an STR and an SIP.
One important note is that the Health Law exempts the above requirements to which the overseas graduate Medical Personnel and Health Personnel shall be allowed to practice in Indonesia provided that they (i) graduate from a recognized medical school and have a minimum of 2 (two) years of practice experience abroad (applicable for Indonesian overseas graduates) or 5 (five) years of specialized or sub-specialized or Health Personnel with a certain competency level practice experience abroad, evidenced by a document issued by an authorized institution in the relevant country (applicable for foreign overseas graduate), or (ii) are experts in a certain specific advanced field in medical services, evidenced by a competency certificate, and specifically for foreign overseas graduates, have practiced at least 5 (five) years abroad.
Further, foreign overseas graduate Medical Personnel (specialists and sub-specialists) and Health Personnel (with certain competency level) may practice in Indonesia for so long that the following requirements are fulfilled (i) there is a request from a Health Service Facility based on its needs, (ii) for the purpose of transfer of technology and knowledge, and (iii) for a maximum period of 2 (two) years and may be extended once for the next 2 (two) years.
We understand that with the above provisions the Government intends to address Indonesia’s shortage of doctors and improve the quality of health services, despite concerns from the medical society that the above provisions may impact the availability of job vacancies for Indonesian Medical Personnel and Health Personnel.
Eligibility for Foreign Domestic Graduate Medical Personnel and Health Personnel to Practice in Indonesia The Health Law provides that foreign Medical Personnel and Health Personnel that are domestic graduates may also practice in Indonesia by firstly obtaining an STR and an SIP in accordance with applicable laws and regulations. However, such Medical Personnel and Health Personnel may only practice in Indonesia based on the request of a Health Service Facility for a certain period of time.
September 11, 2023
AKSET
Please contact Johannes C. Sahetapy-Engel (jsahetapyengel@aksetlaw.com), Thomas Peter Wijaya (twijaya@aksetlaw.com), Datanya N. Kalula (dkalula@aksetlaw.com), or M. Fatih Satria Kasmaliputra (mkasmaliputra@aksetlaw.com) for further information.
Disclaimer:
The foregoing material is the property of AKSET and may not be used by any other party without prior written consent. The information herein is of general nature and should not be treated as legal advice, nor shall it be relied upon by any party for any circumstance. Specific legal advice should be sought by interested parties to address their particular circumstances.
Any links contained in this document are for informational purposes and are available and relevant at time this publication is made. We provide no liability whatsoever in respect of any information or content in such links.
2023 Electricity Regulation - Indonesia
Reproduced with permission from Law Business Research Ltd. This article was first published in Lexology Getting the Deal Through – Electricity 2023 (Published: August 2023). For further information please visit www.gettingthedealthrough.com
Authors From AKSET: Arfidea Dwi Saraswati, Andi Manggoana Wira Tenri, and Mochamad Fatih Satria Kasmaliputra
2023 Electricity Regulation - Indonesia
Health Omnibus Law Series – Stipulation on Telemedicine Services
This Newsflash is a part of our Health Omnibus Law Newsflash series, i.e., Law No. 17 of 2023 dated August 8, 2023 on Health (the “Health Law”). The Health Law governs a wide range of topics in the health sector, including Telemedicine services as part of the services of a Health Service Facility.
As previously noted, the Health Law is issued using the omnibus method. The Health Law revokes several laws and regulations in the health sector, including Law No. 36 of 2009 dated October 13, 2009 on Health (the “Previous Health Law”).
Under the Previous Health Law, there were no provisions relating to Telemedicine services. Before the Health Law, Telemedicine services were regulated by the Minister of Health (the “MOH”) Regulation No. 20 of 2019 on the Organization of Telemedicine Services between Health Service Facilities (“Regulation 20/2019”).
With the issuance of the Health Law, Telemedicine services are now governed in a law rather than only in a Ministerial regulation.
Below, we set out the salient provisions of Telemedicine services under the Health Law.
♦ Recognition of Telemedicine
The implementation of health efforts in the form of health services may use information and communication technology through Telehealth and Telemedicine which are integrated with the National Health Information System.
The Telehealth service consists of providing clinical and non-clinical services, in which the clinical services are provided through Telemedicine.
♦ Provider of Telemedicine Services
Telemedicine services may be provided by all Health Service Facilities, as follows:
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- First-level Health Service Facilities, consisting of Public Health Centers (Pusat Kesehatan Masyarakat or Puskesmas), Primary Clinics (Klinik Pratama), and Private Practice of Medical (Praktik Mandiri Tenaga Medis) or Health Care Personnel (Tenaga Kesehatan);
- Advanced Health Service Facilities, consisting of Hospitals, Principal Clinics (Klinik Utama), Health Centers (Balai Kesehatan), and Private Practice of Medical (Praktik Mandiri Tenaga Medis) or Health Care Personnel (Tenaga Kesehatan); and
- Supporting Health Service Facilities.
In providing Telemedicine services, Health Service Facilities may independently provide such Telemedicine services or cooperate with a registered electronic system provider in accordance with the applicable laws and regulations.
Telemedicine services consist of Telemedicine services (i) between Health Service Facilities and (ii) between Health Service Facilities and public. The Telemedicine services provided by the Health Service Facilities shall be conducted by medical or health care personnel who have the relevant practice licenses. Please see our Newsflash on Licensing of Medical and Health Care Personnel: Health Omnibus Law Series – Simplification of Registration and Practice License for Medical and Health Care Personnels.
Further provisions in relation to the implementation of Telemedicine services will be further governed in a Government Regulation (Peraturan Pemerintah). We note from the Health Law that all implementing regulations (including the ones relating to Telemedicine services) shall be issued at least 1 (one) year from the enactment of the Health Law.
As of now, the Government Regulation which will stipulate further Telemedicine services, has yet to be issued. We will issue a continuation of this Newsflash once the Government Regulation relating to Telemedicine services has been issued.
August 31, 2023
AKSET
Please contact Johannes C. Sahetapy-Engel (jsahetapyengel@aksetlaw.com), Radiansyah S. Yamin (ryamin@aksetlaw.com), and Ammarsyarif G. Goenawan (agoenawan@aksetlaw.com) for further information.
Disclaimer:
The foregoing material is the property of AKSET and may not be used by any other party without prior written consent. The information herein is of general nature and should not be treated as legal advice, nor shall it be relied upon by any party for any circumstance. Specific legal advice should be sought by interested parties to address their particular circumstances.
Any links contained in this document are for informational purposes and are available and relevant at time this publication is made. We provide no liability whatsoever in respect of any information or content in such links.