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HUKUM

KESEHATAN

INDONESIA

Hotel Le Polonia Medan 6 - g Desember 201g

No Lamp Hal : 008/KONAS ll,l1Kt- I 102018 : Poster Kegiatan : Partisipasi Peserta Kepada Yth Bapak/lbu

Direktur Magister Hukum Universitas lslam lndoneqia

Drs, Agus Triyanta, MH., LLM,, ph,D di Ketua Panitia Dr. lr, Bhakti Alamsyah, Dengan hormat, Padatanggal6-8Desember20lBdiHotelLePolonia MedanSumaterautaralndonesia,kamiMasyarakat Hukum Kesehatan lndonesia Daerah Sumatera utara

dan bekerjasama dengan Magister Hukum Kesehatan Program Pascasariana unive.rsitas Pembangunan Panca Budi bermaksud mengadakan ,,Konferensi

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Hukum Kesehatan Indonesia Daerah Sumatera Utara bekerjasama dengan Magister Hukum Kesehatan PPs

Univ. Pembangunan Pancabudi Tempat/Kota

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Hotel Le Polonia Medan

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NEGLIGENCE CRITERIA IN TRADITIONAL HEALTH

SERVICE PRACTICES IN INDONESIA

Aroma Elmina Martha

1

Abstract

In Indonesia, traditional health services are not new therapies that are used as an alternative to the use of chemical treatments. The relatively inexpensive and more selective cost factor of the community using traditional medicine rather than chemical drugs tends to be an option. The problem arises when traditional health professionals do negligence which results in the death of the patient. The questions are how to explain the elements criminal liability for the defendant, and how to determine the criteria for the act included in the element of negligence if it causes death in patients. This research is a descriptive study, which describes the element of criminal responsibility in the aspect of error in the form of negligence elements caused by negligence committed by traditional health professionals. The approach used is normative juridical. This study uses primary, secondary and tertiary legal materials. The analysis technique used is qualitative descriptive analysis. It was concluded that the negligence criteria caused by the negligence of traditional health professionals even though it was regulated in the provisions of the Health Law No.36 of 2009 concerning health but not explicitly explained the criteria for negligence. So that this criterion still refers to the doctrine of the nature of fault regarding negligence in criminal law. Even though it has been regulated in the Criminal Code but there needs to be a special regulation regarding negligence sanctions on the criminal acts of traditional medical practitioners.

Keywords: criminal responsibility, negligence, traditional health services, treatment goals

1.

Introduction

The attention of the state to traditional health services through health workers who have been trained shows a concern for traditional alternative medicine. The Indonesian Health Profile 2017 shows that of the 3410 number of public health centers (Puskesmas) that hold Traditional Health Services, there are 1758 community health centers with the Development of the Traditional Health Development Center for Community Health (HATRA). Training efforts carried out in the form of exercises for making medicinal herbs, acupuncture and acupressure.2 On the other hand, traditional health service

regulations have been formulated by the state to protect the interests of people who choose to use traditional medical services. There are several factors that cause people to tend to use this method of health service traditional medicine. For example research conducted by

1MARTHA, Aroma Elmina, Lecturer and Researcher, Faculty of Law, Universitas Islam Indonesia

Taman Siswa 158, Yogyakarta, Indonesia Email: aroma@uii.ac.id

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the Ministry of Health of the Republic of Indonesia from the Health Ministry of Health Aceh Polytechnic in Banda Aceh Nursing Study Program with the topic of research concerning Factors Affecting Society's decision on Choosing Traditional Medicine in Gampong Lam Ujong. The results of the study indicate that there is an influence between information sources, socio-cultural and income on people's decisions in choosing to use traditional medicine. The results of the study indicate that there is an influence between information sources, socio-cultural and income on people's decisions in choosing to use traditional medicine.3 But on the other hand, in January 2018, Tempo Magazine reviewed the results of report investigations that found data showing the weakness of the use of traditional medicines sold almost never explained the risks of the existence of this traditional medicine.4 Some problems arise as a result of using these traditional medicines. It was found that it was not known who the manufacturer of the drug was, the content of the drug content was doubtful, there was no permission to distribute it from the Food and Drug Supervisory Agency (BPOM) and there was no Indonesian national standard (SNI). There are even some drug manufacturers who put fake license numbers on the packaging. For example, in the case of Batang district in Central Java province, two victims died after buying herbs from traveling vendors.5 The illustration shows that there are cases of violations of traditional medical services, but how to form an element of neglect in the form of a guilty mind if this case will be processed in court. Is there a formulation of articles that specifically describes the elements of criminal responsibility through neglect in traditional health services. If it is not in the health law, what criteria are used. The contents of the article on the health law focus more on the element of deliberation in the article's formula. From the problem, the researcher formulated the following statement questions, if there was negligence in traditional health services, how to explain the criminal liability for the defendant, and how to determine the criteria for the act included in the element of negligence if it causes death in patients? Furthermore, this study will use a method approach in the form of normative juridical. The source of research data consists of primary, secondary, and tertiary legal materials. The data collection method uses the literature search method as a literature review. The data analysis technique in this study is qualitative descriptive analysis.

2.

The Concept of Traditional Health Services

Traditional Health Services are to treat and / or care through means and drugs that refer to hereditary experiences and skills and can be empirically accountable and applied in accordance with the norms that apply in the community. In particular the provisions of traditional health services have been regulated in Law number 36 of 2009 in articles 59 and 60.6

3 wwmw.jurnal.unsyiah.ac.id Factors Affecting Society’s Desicion on Choosing Traditional Medicine in

Gampong Lam Ujong Vol.VI no.1 2015 ISSN 2087 2789

4 https://www.tempo.co/abc/806/mengapa-sebagian-pasien-lebih-memilih-pengobatan-alternatif January 10,

2018

5

http://jateng.tribunnews.com/2017/11/21/hati-hati-warga-batang-ini-tewas-dan-kritis-setelah-minum-jamu-keliling

6 Article 59 (1) Based on healing method, traditional health services are divided into:a. traditional health

service using skill; and b. traditional health service using potion. (2) Traditional health service as referred to in subsection (1) shall be under guidance and monitoring of the Government so that the benefit and safety can

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Furthermore, this rule is elaborated through the Regulation of the Minister of Health of the Republic of Indonesia Number 15 of 2018 concerning the Implementation of Complementary Traditional Health Services. The contents of the article regulate the procedure for treatment / care, including there are complementary traditional health services carried out using skills, potions, or combinations by combining skills and potions. The concept of Traditional Health Services consists of the existence of individual health problems caused by imbalances in physical, mental, spiritual, social, and cultural elements; b. humans have adaptability and self healing; and c. sanitation is carried out with a holistic (overall) and natural approach that aims to rebalance the adaptability to the causes of health problems. Article 1 Government Regulation Number 103 of 2014 states that traditional health services are divided into three categories: 1. Empirical Traditional Health Services, in the form of traditional health applications whose benefits and security are empirically proven, 2. Complementary traditional health services, in the form of traditional health benefits biomedical and biocultural sciences in their explanations and their benefits and safety are scientifically proven. 3. Traditional integration health services that combine conventional health services with complementary traditional health services, both as complementary or substitute.

This regulation also explains the purpose of traditional health services, firstly, the security of its use can be accounted for by following quality scientific rules and being used rationally and not contrary to religious norms and prevailing norms in society; secondly, it does not endanger the health of the client paying attention to the best interests of the client;

third, has the potential to prevent disease, improve health, cure, restore health, and improve

the quality of life of clients physically, mentally and socially. Fourth, it does not conflict with religious norms by not providing services in the form of mysticism / occultism, and / or using help from supernatural beings and may not conflict with the prevailing norms in the community by not violating the values of decency, politeness, law and culture.

The traditional health service regulation policy demonstrates the state's recognition of the existence and potential of traditional medicine that exists in Indonesia. That's why this traditional health service is regulated in separate laws.

3. The Concept of Criminal Responsibility

In relation to the topic of this paper which discusses criminal liability, it is necessary to explain the understanding of that responsibility. In the Indonesian criminal law literature, one of the scientists who explained this concept was van Hamel. Criminal liability according to van Hamel is a normal psychological state and proficiency that carries three kinds of abilities. First, being able to understand the meaning and the real consequences of

be accountable as well as not contradictory to religious norm. (3) Further regulation regarding procedure and type of traditional health service as referred to in subsection (1) shall be regulated in a Government Regulation. Article 60 (1) Every individual providing traditional health service using equipment and technology must obtain a permit from the authorized health institution. Law Of Republic Of Indonesia Number 36 Year 2009 Concerning Health 45 (2) Usage of equipment and technology as referred to in subsection (1) must be accountable in terms of its benefit and safety as well as not contradictory toreligious norms and culture of the community

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the actions themselves; second, being able to realize that the act is contrary to public order and third, able to determine the will to act.7

From this understanding, the meaning of accountability in criminal law is a psychological state of a person and there is a relationship between the psychological state and the actions committed by the defendant 8 In Dutch terminology it is called toerekenbaarheid or criminal responsibility. 9Moeljatno, Indonesian criminal law scientist, explains the

conditions in criminal liability are: 1. Someone has committed a criminal act; 2. There is a responsible ability by someone who has committed a criminal act; 3. There is a form of fault, whether intentional or negligent in a criminal act; 4. There is no justification or forgiving reason that eliminates criminal liability against defendants of criminal acts.10

The use of responsibility places a moral judgment on its subjects. Unlike the duty or causal uses of responsibility. The praise use ascribes accountability to someone for what she did, where what she did was praiseworthy.11 Black’s law Dictionary12 defines responsibility as liability…a person’s mental fitness to answer in court for his or her actions.. and liability as the quality or state of being legally obligated or accountable. The elements of criminal responsibility include: actus reus (a voluntary physical or bodily act, omission or attempt by the defendant); mens rea (the defendant’s intent or state of mind at the time of the act, omission or attempt); caused by the defendant’s act, omission or attempt. 13 Some statues

require that a defendant act purposely and/or knowingly. By purposely the law means that a defendant acts such that it is her conscious object to engage in certain conduct or cause a certain result. By knowingly it means that a defendant is aware that her conduct is of that nature or that particular circumstances exit. She acts knowingly with respect to the result of her conduct when she knows that her conduct will at least very likely cause such a result.14

In explaining the relationship of fault with criminal liability, van Bemmelen and van Hattum argue that the broadest understanding of fault includes all the elements in which a person is accounted for under criminal law for acts against the law, covering all complex psychological matters in the form of criminal acts and defendant.15

In Indonesian literature, faults in the broadest sense include: intentionally, negligently, and with accountability.16 Intentional or dolus elements are divided into 3 categories. First,

7 Toerkeningsvatbaarheid…een staat van psychisce normaliteit en rijpheid welke drieerleigeschiktheid

medebrengt;1. Die om feitelijke strekking der eigen handelingen te begrijpen;1. Die om het maatschappelijk ongeoorloofde van die handelingen te beseffen;3. Die om te aanzien van die handelingen den wilt e bepalen Dalam Eddy O.S.Hiariej.2014. Prinsip-prinsip hukum pidana.Cahaya Atma Pustaka:2014. Yogyakarta p.121

8 Ibid.p.122 9 Ibid

10 Moeljatno,. 1993. Asas-Asas Hukum Pidana.Rineka Cipta:Jakarta,p. 164 11 Angelo Corlett. p.15

12 Bryan A. Garner. Editor in Chief.1999. Blacks Law Dictionary. Seventh Edition (St. Paul. West Group) 13 J. Angelo Corlett.2006. Responsibility and Punishment.Springer:Nedherland. P. 17 see Joycelyn M.

Pollock.2013. Criminal Law. Routledge: New York. p.55

14 Ibid

15 Eddy O.S.Hiariej.2014.p.124

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intentionality as intent, intentional as certainty and intentionality as a possibility (dolus eventualis). Remmelink argues that dolus and culpa are opposite poles. The perpetrators of dolus expect the consequences of being threatened by criminal acts, while the culpians do not want the consequences that are deemed inappropriate by the law.17 It was concluded that the elements of the fault consist of: first, the ability to be responsible. Secondly, the psychological connection of the offender to the actions taken. This psychological relationship raises two forms of fault such as intentional (dolus) and negligence (culpa). Thirdly, there is no reason to eliminate criminal liability in the form of justification that removes the nature of being against the law and forgiving reasons that eliminate mistakes.18

4.

Findings

4.1. Criminal responsibility for negligence in traditional health services

If a crime occurs in a traditional health service, the deed will be identified as an act that is prohibited or not. Provisions regarding this criminal act are regulated in the Penal Code and specifically regulated in Law No. 36 of 2009 concerning Health, criminal sanctions against violations in traditional health service practices.

Firstly, Criminal Act/Actus Reus provisions in traditional health service providers

regulated in Law No. 36 of 2009 consists of:

1. Article 191: Every individual who without license conduct practices of traditional health service using equipment and technology as referred to in Article 60 subsection (1) resulting in a loss of property, major injury or death19

2. Article 196: Every individual who intentionally produce or distribute pharmaceutical preparation and/or health equipment not complying to the standard and/or requirement of safety, efficacy or benefit, and quality as referred to in Article 98 subsection (2) and subsection (3) 20;

3. Article 197: Every individual who intentionally produce or distribute pharmaceutical preparation and/or health equipment without the distribution permit as referred to in Article 106 subsection (1)21.

4. Article 201:. Especially regarding corporations that commit criminal acts in traditional health services. This provision is regulated in article 201 Law number 36 year 200922

17 Eddy O.S.Hiariej.2014. p. 150 18 Ibid. 127

19 Article 191 Law 36 year 2009 shall be penalised with imprisonment at the longest 1 (one) year and a fine

at the maximum Rp 100,000,000 (one hundred million rupiah).

20 Article 196: shall be penalised with imprisonment at the longest 10 (ten) years and a fine of at the most Rp

1,000,000,000 (one billion rupiah).

21 Article 197: shall be penalised with imprisonment at the longest 15 (fifteen) years and a fine of at the most

Rp 1,500,000,000 (one billion and five hundred million rupiah).

22 In the case that criminal act as referred to in Article 190 subsection (1), Article 191, Article 192, Article

196, Article 197, Article 198, Article 199 and Article 200 is committed by a corporation, in addition to imprisonment and fine to the executives, penal sanction that may be served to the corporation may be a fine

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In addition to criminal penalties the corporation can also be sentenced to additional penalties in the form of: a. revocation of business license; and / or b. revocation of legal entity status. In addition to criminal sanctions there are also administrative sanctions for which this provision is also specifically regulated in article 4623 Law number 36 year 2009.

Secondly, responsible ability, Moeljatno concluded that for the ability to be responsible

there must be: a. The ability to distinguish between right and bad deeds; in accordance with the law and against the law; The ability to determine expectations based on good and bad deeds.24 the standard is a logic factor, which is to be able to distinguish between actions that are allowed and those that are not. then in the form of a feeling or will factor, by adjusting his behavior with awareness of what is allowed and not. As a consequence, a person who is unable to determine willingness according to conviction about his good and bad deeds, he has no mistakes. This element of responsible capacity is an integral part of imposing sanctions on traditional health actors who commit criminal acts. Including the criteria for children as traditional sanitation when committing a crime. One phenomenal case is the case of ponari, a 9-year-old boy who is believed to be able to cure people by dipping his hands in the water.25

Thirdly, the element of fault. In this element, it is specifically discussed in the next

analysis.

Fourthly, there is no reason to eliminate forgiveness. In this provision the reason for

forgiveness is eliminated. This reason was given, because the defendant was a criminal offender, could not be held responsible for his illegal actions. The defendant was not convicted, because the offender suffered a mental disorder, or was disabled in his growth. If the four elements above are fulfilled, then someone can be accounted for. In the criminal law doctrine known as adagium geen straf zonder schuld, no punishment without fault.

of 3 (three) folds of the fine as referred to in Article 190 subsection (1), Article 191, Article 192, Article 196, Article 197, Article 198, Article 199 and Article 200.

23 Article 46 To realize the highest health standard for the community, an integrated and comprehensive

health effort shall be implemented in the form of individual health effort and community health effort.

24 Moeljatno. p.165

25 ‘Dukun Cilik dari Jombang’, the Little Sorcerer from Jombang, is the boy’s nickname. Only nine years old,

Ponari, born in Balongsari village, in the district of Jombang, East Java, is still at primary school, but he’s become famous in the past year. It began with a lightning strike on December 12, 2008, says Ponari. In the middle of a hard rain, the lightning left behind a mysterious stone. According to Ponari and his followers, when he dunks the stone in water and the water is drunk by a sick person, it can heal the person’s illness. As the mass media coverage of his powers spread, so did Ponari’s popularity. First, it was just the people of Balongsari village who came to see him. Then, as word spread, large numbers of people, around 5000 per day, spilled out of Jombang and even travelled from the towns of Central Java to come and visit Ponari, each paying Rp.5,000 (US$ 0.5) to visit him. Four people died, crushed by the crowds. For several months, every day the line would stretch hundreds of metres in front of Ponari’s house, as people waited for him to sink his stone into the glasses of water they brought with them. Those who could not wait in line scraped up soil from around his house and plastered it on their bodies, or collected water from his family’s well, hoping it would cure whatever ailed them.https://www.insideindonesia.org/ponari-and-the-sorcerers-stone

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4.2 Criteria for negligence in traditional health service practices Based on the description stated above, the fault aspect is an inseparable part of criminal liability. When and in what cases a person can be held accountable, the determination of guilty mind / mens rea is important after the actus reus is obtained. Unlike deliberate, according to Simons forgetfulness is made up of two parts, which is not cautious in doing deeds, it may still be an omission if the doer knows that there may be a consequence that is prohibited by law and secondly, the omission of one's actions it was even though he had known and suspected the consequences.26 Unexpected neglect is divided into conscious neglect (bewuste culpa) and unconscious fidelity (onbewuste culpa). According to Hazewinkel, Suringa is the most difficult to prove, namely unconscious negligence (on the bewuste culpa).

The formulation of what is in the mind of the perpetrator who does not expect the alleged unconsciousness of traditional health services needs to be clarified. For example, in the case that occurred in Batang, Central Java, two people died after buying herbs from traveling vendors. Traders of traditional herbal medicine do not realize that the concoction of herbs that are formulated causes people who drink it poisoned and eventually die.

But the problem is how to prove the element of unconscious neglect (on the bewuste culpa)?

In practice Vos explained that there was no gradation in the culpa.27 Because the culpa is

an act that occurs because there are reckless, careless, negligent, inadvertent, unthinkable. Generally culpas are considered lighter than dolus / intentional. Imperetia est maxima

mecharicorum (criminal sanctions for negligence less than those carried out

intentionally).28 Therefore according to Andi Hamzah, negligence can be understood in line with the criminal purpose as the final treatment (ultimum remedium).

Provisions regarding neglect in traditional health services have not been specifically regulated in Indonesia's health law. The threat of the article used still refers to the Criminal Code article 35929 and article 20530 KUHP.

Factors of fault in traditional health services are in fact more frequent in aspects of negligence that do not hold predictors in the on bewuste culpa category. However, the health law has not specifically regulated negligence. Health laws are more oriented to the elemental aspect of intentions.

26 Leden Marpaung.2005. Asas-teori-praktik hukum pidana.Sinar Grafika:Jakarta. p.25 27 Op Cit.p. 135

28 Edy Hiariej. p. 149

29Article 359 of the Criminal Code states: "every person who neglects causes the death of a person sentenced

to imprisonment for a period of five years or confinement for a period of one year

30(1) every person due fault (negligence) causes goods that are harmful to the life or health of a person, sold,

handed over or distributed without being known to be dangerous by the person who buys or obtains, threatened with imprisonment for a maximum of nine months or the most imprisonment six months or a fine of at most four thousand five hundred rupiahs.

(2) If the action results in the death of the person, the guilty person is threatened with a maximum imprisonment of one year and four months or a maximum of one year imprisonment.

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The need for a discussion of criminal sanctions caused by negligence should be considered in the context of the criminal acts carried out by these traditional health practitioners.

3.

Conclusions

5.1. The aspect of criminal responsibility for traditional health services should refer to the element of the principle of criminal responsibility. The element, in the form of indicators, is prohibited or not; the ability to be responsible; an error can be intentional or negligent and there is no forgiving reason that erases someone's mistake.

5.2. Even though it has been regulated in law 36 of 2009, the fact that the article regarding negligence has not been specifically included in this law. So that if there is negligence, the threat of sanctions used still refers to the Criminal Code article 359 regarding negligence that causes the death of another person. .

5.3. In the future, the state needs to consider regulating the criminal aspects of traditional health services that use social media as a means of delivering information. This regulation is important because it involves consumer protection as well.

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References

[1] ANDI HAMZAH. 2014. Asas-Asas Hukum Pidana. Rineka Cipta: Jakarta [2] BRYAN A. GARNER. Editor in Chief.1999. Blacks Law Dictionary. Seventh

Edition (St. Paul. West Group)

[3] EDDY O.S.HIARIEJ.2014. Prinsip-prinsip hukum pidana. Cahaya Atma Pustaka:2014. Yogyakarta

[4] J. ANGELO CORLETT.2006. Responsibility and punishment.Springer:Nedherland. [5] JOYCELYN M. POLLOCK.2013. Criminal Law. Routledge: New York.

[6] LEDEN MARPAUNG.2005. Asas-teori-praktik hukum pidana.Sinar Grafika:Jakarta. [7] MOELJATNO,. 1993. Asas-Asas Hukum Pidana.Rineka Cipta:Jakarta

[8] https://www.insideindonesia.org/ponari-and-the-sorcerers-stone

[9] Profil Kesehatan Indonesia . 2017

[10] Jurnal.unsyiah.ac.id. Factors Affecting Society’s Desicion on Choosing Traditional

Medicine in Gampong Lam Ujong. Vol.VI no.1 2015 ISSN 2087 2789

[11]

https://www.tempo.co/abc/806/mengapa-sebagian-pasien-lebih-memilih-pengobatan-alternatif January 10, 2018

[12]

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DT.

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Referensi

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