PROCEEDING
“HARMONIZATION ON LAW, ECONOMY, AND HEALTH TOWARDS SOCIAL JUSTICE SOCIETY”
ICLEH 2018
ISBN: 978-602-9466-48-5
PROCEEDING
INTERNATIONAL CONFERENCE ON LAW, ECONOMY, AND HEALTH
ICLEH 2018
“HARMONIZATION ON LAW, ECONOMY, AND HEALTH TOWARDS SOCIAL JUSTICE SOCIETY”
Grasia Hotel Semarang - Indonesia January 29th - 30th, 2018
Grasia Hotel Semarang - Indonesia January 29th - 30th, 2018
Faculty of Law
University 17 Agustus 1945 Semarang
i
Proceeding Book
International Conference on Law, Economy and Health (ICLEH 2018)
Theme:
“Harmonization of Law, Economy and Health Towards Social Justice Societ
Editor:
Nindy Dwi Pratiwi Elang Satmoko Ichsan Muhajir Galih Purna Pasca Yulianto
Grasia Hotel Semarang, Indonesia
29 – 30 January 2018
ii
Faculty of Law
University 17 Agustus 1945 Semarang
Proceeding Book
International Conference on Law, Economics and Health (ICLEH 2018)
Theme:
“Harmonization of Law, Economics And Health toward Social Justice Society”
Semarang, 29th – 30th January, 2018
Editor: Nindy Dwi P., Elang Satmoko, Ichsan Muhajir, Galih Prna Pasca Y.
Coomittees:
Dr. Edy Lisdiyono, S.H., M.Hum
Dr. Anggraeni Endah Kusumaningrum, S.H., M.Hum.
Dr. Sri Mulyani, S.H., M.Hum.
Hadi Karyono, S.H., M.H.
Markus Suryoutomo, S.H., M.Si.
Reviewer:
Prof. Vugar Mammadov Haniff Ahamat, PhD.
Prof. Park Jihyon Prof. Seo Joo Hwan
Prof. Dr. Agus Sardjono, S.H., M.H.
dr. M. Nasser, SpKK, D.Law
Prof. Dr. FX. Adji Samekto, S.H., M.H.
Prof. Dr. Adi Sulistyono, S.H., M.H.
Prof. Dr. I Gusti Ketut Ayu Rachmi H., S.H., M.M.
Prof. Dr. OK Saidin, S.H., M.H.
Prof. Dr. Erlyn Indiarti, S.H., M.H.
Dr. Dra. Emiliana, S.E., M.M.
Dr. G. Widiartana, S.H., M.H.
First time published by:
Faculty of Law University 17 Agustus 1945 Semarang Pawiyatan Luhur Bendan Dhuwur, 50233
Semarang , Indonesia Phone: 024-8446280
Email: icleh@ untagsmg.co.id
Website: http://conf.fakhukum.untagsmg.ac.id 1st Printed : 2018
ISBN 1234-678-90-12-1
Copyright © 2018 All Rights Reserved
It is prohibited to copy, print and publish any or all of the contents
of this book in any form without the author's permission and publisher
iii
FOREWORD
The growing public awareness of health at this time has an impact on the increasing need of available resources, especially funds, which so far the economic sector associated with planning, implementation and evaluation in health services is still rarely or slightly gained attention. Economic sectors therefore need to be included in the planning, implementation and evaluation of the health sector through arrangements that provide certainty, benefit, and justice. In the sense that there is a harmonization between Law, Economiy and Health that provides Social Justice for Society.
Based on that thinking, Faculty of Law UNTAG Semarang on 29 - 30 January 2018 held an international conference as well as holding Call for paper, inviting scientists both in law, economy, and health at the national and international level with the theme of "Harmonization of Law, Economy and Health to Social Justice Society"
This International Conference is a valuable opportunity for academics, researchers and practitioners so that 120 papers are formed in the development and delivery of ideas, research results and experience related to the issue of harmonization between law, economy and health of social justice in the global society.
As guest speakers include Prof Vugar Mamadov, European WAML President from Azerbaijan, Prof. Irene Calboli from Singapore College, Prof. Agus Sardjono from University of Indonesia, Prof. Park Ji Hyon from Youngsan University South Korea, Prof. Seo Jo Hwan from Dong A University South Korea , Dr Haniff Ahamat from Malaysian SMEs, dr Nasser, SpKk.D.Law, President of W AML Asia Pacific Region, Prof. Dr.Liliana Tedjosaputro, SH, MH.MM from Master of Law UNTAG Semarang.
On this occasion, the organizing committee would like to thank:
1. Dean of the Faculty of Law UNTAG Semarang (Dr Edy Lisdiyono, SH.MH), who gives much encouragement, encouragement and trust to the committee.
2. Dean of Faculty of Economy and Business Untag Semarang (Dra Nur Chayati, SE.MM.Ak.Ca)
3. Rector of the University of 17 August 1945 Semarang (Dr.Drs.H.Suparno.Msi) 4. Wold Medical Law Association (WAML), Intellectual Property Law Teachers
Association (APHKI), Persatuan Perakit Indonesia (PERSI) Central Java, Kariadi Hospital Semarang, PDAM Jember
5. All members of the committee as well as the parties who contribute to the contribution of the event.
Finally, we thank you for the attention of all readers. Hopefully this Proceeding International Conference on Law, Economics and Health (ICLEH 2018) can provide benefits to advance the Indonesian nation and our education in particular.
Semarang, February 2018 Committee
Dr. Anggrani Endah Kusumaningrum, SH., MHum
iv TABLE OF CONTENT
Cover ... i Foreword ... iii Table Of Content ... iv
Planary Session
Prof. Dr. Agus Sardjono, S.H., M.H.
Health Care In The Perspective Of Contract Law:
The Constitutionalization Of Contract Law ... 1 Indonesia University
Professor Park Jihyon
Intellectual Property Law And Medicine In Patent ... 8 Youngsan University
Professor Seo Jo Hwan
Market Competitiveness In The Consumer Packaged Goods Industry ... 14 Dong A University
Professor Haniff Ahamat
Access To Medicine In Malaysia: Legal Issues And Challenges ... 16 Universiti Kebangsaan Malaysia
Professor Dr. Liliana Tedjosaputro, SH., MH., MM
Implementation Of Law Number 44/2009 Regarding Hospital
Based On Private Hospital Management In Indonesia ... 20 University 17 August 1945 Semarang
Pararel Session
Fostering Clean And Healthy Energy In Rural Communities:
Lessons From The Indonesia Csi Pilot Program ... 25 Johanes Widijantoro
Lecturer at Faculty of Law Atma Jaya University Yogyakarta Yuni Windarti
Lecturer at Faculty of Psychology and Socio Cultural Studies, Indonesian Islamic University
Optimalization Coordination And Supervision’s Function Of KPK
For Intergrated Activities Against Corruption ... 35 Bambang Dwi Baskoro
Student of Doctoral Program Sebelas Maret University Surakarta Hartiwiningsih and Hari Purwadi
Promotor and Co Promotor Doctoral Program (S3) of Faculty of Law UNS Surakarta
The Study Of The Relationship Between The Un Security Council And The International Criminal Court In
The Prosecution Of International Crime ... 41 Naek Siregar and Abdul Muthalib Tahar
Lecture at Faculty Of Law University Of Lampung
Asset Forfeiture Of Perpetrator Of Corruption Case With
Civil Forfeiture System ... 51 P. Santoso
Student Of Doctoral Program, University 17 August 1945 Semarang
Improving Lecturers Performance With Radical Changes Commitment:
Case Study At Private Higher Education In Central Java, Indonesia ... 57 Suparjo
Lecturer at Faculty of Economy and Business, University 17 August 1945 Semarang
v
Development Of Economic Activities Through Commodities Souvenir Tours
With Value Chain Model Based On A Tourist Education ... 65 Giyah Yuliari and Bambang Riyadi
Lecturer at Faculty of Economy and Business, University 17 August 1945 Semarang
The Effect Of Institutional Ownership And Financial Policy On Corporate Value (Empirical Study On Manufacturing
Companies Listed In Di Indonesian Stock Exchange 2009-2012) ... 68 Susetyo Darmanto
Lecturer at Faculty of Economy and Business, University 17 August 1945 Semarang
Islam And Justice In The Philosophy Perspective ... 76 Aan Aspihanto, Agus Prihartono, Pipih Ludia Karsa and Fatkhul Muin
Lecturer at Faculty of Law Sultan Ageng University Serang Banten
Legality Of Ribawi Debt ... 82 Milyan Risydan Al Anshori
Student Of Doctoral Program, University 17 August 1945 Semarang
Judicial Review As A Mechanism Of Checks And Balances ... 91 Sunarto
Student of Doctoral Program Diponegoro University Arief Hidayat, and Retno Saraswati
Professor at Law of Faculty Diponegoro University
Politic Of Law: Reconstruction Of Sources Of Law
On Local Wisdom Of Special Autonomy In Aceh Province ... 99 Zulfan
Student of Doctoral Program Diponegoro University Lecturer in Faculty of Law University of Samudera
Intellectual Property Aspects On Franchising Agreement Based On Syariah System Related With Empowering Micro,
Small, And Medium Enterprise In National Economic Growth ... 108 Sudaryat
Lecturer at Faculty of Law Padjadjaran University
Legal Protection Of Intellectual Property Rights In Order
To Creating Investment Climate In Indonesia ... 112 Henrikus Renjaan
Lecturer Kopertis Region XIV Papua and West Papua, DPK, Law School of Bintuni, West Papua
Robert KR. Hammar
Law School of Bintuni, West Papua
Legal Protection Of Famous Brands As A Property Asset
In Indonesia ... 120 I Nyoman Putu Budiartha and I Made Delon Mahayana
Lecturer at Faculty of Law University of Warmadewa Denpasar
Consequences Of The International Convention Trade Related Aspect Intellectual Property Rights (TRIPS)
Against The Intellectual Property Protection System ... 126 Anak Agung Sagung Ngurah Indradewi
Lecturer at Faculty of Law Dwijendra University
Village Forest Management Based On Adat Village
(Persfective Implementation Of Adat Sanction) ... 130 I Wayan Rideng and I Wayan Werasmana Sancaya
Lecturer at Faculty of Law University of Warmadewa Denpasar
vi The Implementation Of Government Policy On The Eradication Of Sexually Transmitted Infections
As An Effort To Improve Public Health ... 136 Raja Al Fath Widya Iswara
Lecturer at Faculty of Medicine Halu Oleo University Kendari Sarsintorini Putra
Lecturer at Faculty of Law, University 17 August 1945 Semarang
Direction Of Revision Of The Law Number 32 Year 2002
Regarding Broadcasting ... 143 Mochamad Riyanto
Student Of Doctoral Program, University 17 August 1945 Semarang Lecturer at Faculty of Law, University 17 August 1945 Semarang
Reconstruction Of National Health Insurance Regulation
On Patient’s Safety Right In Health Service ... 149 Dody Suhartono
Student Of Doctoral Program, University 17 August 1945 Semarang Doctor at RSUD Tegal
Malpractice: Injustice Doctor – Patient
(Creating A Transparent Health System) ... 158 Murry Darmoko
Lecturer at Faculty of Law Bhayangkara, University of Surabaya
Juridis Study Of Use And Punca Self
(Embryonic Stem Cells) Development In The Field
Of Health Research ... 162 Endang Yulianti
Lecture at Faculty of Law Janabadra University.
Juridical Study Of The Transformation Of Pt Askes (Persero)
To Be The National Health Care Security (BPJS Health Care) ... 170 Endang Sulistyaningsih
Student of Doctoral Program Sebelas Maret University Surakarta Isharyanto and Hartiwiningsih
Promotor and Co Promotor Doctoral Program (S3) of Sebelas Maret University Surakarta
Implementation Of Government Policy In Ownership Regulations Of Land Rights In Indonesia (Strategic Thinking Of Land
Development And Management Of Agriculture & Spatial Planning Ministry) ... 175 Luluk Lusiati Cahyarini
Notaris PPAT Kab. Semarang
Student of Doctoral Program Diponegoro University
International Instruments Of Recognition Of Indigenous
And Tribal Peopleson Land Mastery ... 181 I Nyoman Prabu Buana Rumiartha
Lecturer at Faculty of Law Dwijendra University
Harmonization Of Economic Law To Support
The Public Economic Policies Of Government ... 184 Agus Budijarto
Student of Doctoral Program Sebelas Maret University Surakarta Repreship Of Credit In People’s Business Credit With
Deed Of Sale And Purchase Agreement ... 192 Upik Mutiara
Lecturer at Faculty of Law University of Muhammadiyah Tangerang
vii The Enforcement Of Arbitration Laws To
Justice Harmonization In Indonesia ... 196 Yati Nurhayati and Ifrani
Student Of Doctoral Program, Sultan Agung Islamic University
Character Building To Overcome The Multidimensional Crisis ... 200 Suparno
Lecturer at Faculty of Social Science and Political Science, University 17 August 1945 Semarang
Defining Expressive Theory Of Punishment Toward Traditional Optimal
Punishment Of Criminal Law: Law And Economics Perspective ... 203 Fajar Sugianto
Lecturer at Faculty of Law University of 17 Agustus 1945 Surabaya
Legal practitioner and member of PERADI (Indonesian Advocates Association) Syofyan Hadi
Lecturer at Faculty of Law University of 17 Agustus 1945 Surabaya
Psychological Intervention As Additional Sanction
In Child As Perpetrators Of Violence ... 210 Ade Saptomo
Lecturer at Faculty of Law, Pancasila University.
Maharani Ardi Putri
Psychologist and Lecturer at Faculty of Psychology, Pancasila University.
The Reconstruction Of Regulation System Proof To Criminal
Offense Of Money Laundering ... 216 Tri Sutrisno
Student Of Doctoral Program, University 17 August 1945 Semarang
Traditional Value Contribution In Indonesian Crime Prevention ... 223 Tongat, Isdian Anggraeny and Isdiyana Kusuma Ayu
Lecturer at Faculty of Law University of Muhammadiyah Malang
Criminal Case Policy Application In Determining Status Of Taxable
Entrepreneurs In The Notary-Land Deed Officials ... 229 Ratna Styawardani
Student Of Doctoral Program, University 17 August 1945 Semarang
Protection Of Copyright On Copyrighted Works
Based On Creative Economy ... 239 Aniek Tyaswati WL
Student Of Doctoral Program, University 17 August 1945 Semarang Lecturer at Faculty of Law, University 17 August 1945 Semarang
Legal Protection For Copyright Traditional Batik Art ... 243 Bakti Trisnawati
Student Of Doctoral Program, Sultan Agung Islamic University Lecturer at Faculty of Law, University 17 August 1945 Semarang
Application Of The Death Penalty In Indonesia Under The Provisions Of The
National Law And The International Covenant In Civil And Political Rights ... 249 Ruddy Handoko
Student Of Doctoral Program, University 17 August 1945 Semarang Lecturer at Faculty of Law, University 17 August 1945 Semarang
Extradition Agreement As A Means Of Law Enforcement For Indonesia ... 256 Sudaryanto
Student Of Doctoral Program, University 17 August 1945 Semarang Lecturer at Faculty of Law, University 17 August 1945 Semarang
viii Reconstruction Of Rural System In Rural Effort
On Criminal Corruption In Indonesia ... 260 Sudiyono
Student Of Doctoral Program, University 17 August 1945 Semarang.
The Concept Of Legal Protection Of Jamu (Herbal Medicine)
Based On The Indonesian Wisdom ... 265 Markus Suryoutomo
Student Of Doctoral Program, University 17 August 1945 Semarang Lecturer at Faculty of Law, University 17 August 1945 Semarang Agus Wibowo
Lecturer at Faculty of Law, University 17 August 1945 Semarang
Legal Protection Towards Pharmacist On Narcotics
And Psychotropics Drugs Management ... 272 Arthanita Rahayu
Student Of Doctoral Program, University 17 August 1945 Semarang
Copyright License Of Use Certificate As Object
Fiduciary Insurance ... 277 Bayu Aji Mardianto
Student Of Doctoral Program, University 17 August 1945 Semarang
Accreditation : As A Minimum Instrument Medical
Dispute In The Hospital ... 283 Anggraeni Endah Kusumaningrum and Benny Bambang Irawan
Lecturer at Faculty Of Law, University 17 August 1945 Semarang
Legal Responsibility Of Free Blood Donors In The
Prespective Of Health Regulation ... 289 Iif Taufiq El Haque
Student Of Doctoral Program, University 17 August 1945 Semarang
Legal Responbility Of Hospital In The Execution Of Nursing Staff
By Laws In An Effort To Improve Nursing Services ... 295 Imam Safi’i
Student Of Doctoral Program, University 17 August 1945 Semarang
Legal Reconstruction Of Drug Resistant Tuberculosis Control System
Based On Human Rights ... 303 Anastasia Tri Yuli
Student Of Doctoral Program, University 17 August 1945 Semarang
Dispute Resolution For International Contract To Achieve Legal Certainty ... 307 Bing Yusuf
Student Of Doctoral Program, University 17 August 1945 Semarang
Roles And Responsibilities Of Land Deed Officials
In The Service Of Land Registration Activities ... 312 Endang Sri Handayani
Student Of Doctoral Program, University 17 August 1945 Semarang
Legal Protection For Consumers Of Electronic Services
In E-Commerce Transactions ... 318 Liany Dewi Sanjoto
Student Of Doctoral Program, University 17 August 1945 Semarang
Franchise And Business World ... 326 Sri Retno Widyorini
Student Of Doctoral Program, University 17 August 1945 Semarang Lecturer at Faculty Of Law, University 17 August 1945 Semarang
ix Policy Of Ownership Of Right On Land And Building
For Foreign Citizens In Indonesia Based On Justice Values ... 332 Sri Subekti
Student Of Doctoral Program, University 17 August 1945 Semarang
Legal Protection Of Genetic Resources
Based On Material Transfer Agreement ... 341 Tri Hastuti
Student Of Doctoral Program, University 17 August 1945 Semarang
The Role Of Cooperation In Economic Development In Indonesia ... 350 Warsono
Student Of Doctoral Program, University 17 August 1945 Semarang.
Cooperation Agreement By Partnership Regulate With
Subcontract From Between Umkm And Large Company ... 355 Widyarini Indriasti
Student Of Doctoral Program, University 17 August 1945 Semarang Lecturer at Faculty of Law, University 17 August 1945 Semarang
The Inheritance Right Of The Adopted Child To
The Legacy Of Their Parents ... 362 Yulies Tiena Masriani
Student Of Doctoral Program, Islamic State University Walisongo Lecturer at Faculty of Law, University 17 August 1945 Semarang
Economy System Based On The State Of The State Of
The Republic Of Indonesia Of 1945 ... 367 Nunung Nugroho
Student Of Doctoral Program, University 17 August 1945 Semarang Lecturer at Faculty of Law, University 17 August 1945 Semarang
Analysis of Land Sale and Puchase after The Applied of Basic Agrarian Law ... 374 Budi Prasetyo
Student Of Doctoral Program, University 17 August 1945 Semarang Lecturer at Faculty of Law, University 17 August 1945 Semarang
Reconstruction Of Article 69 Of Law Number 6 Of 2014
On Villages Related To The Making Of Village Regulations ... 379 Sumondo
Student Of Doctoral Program, University 17 August 1945 Semarang
Building Legal System National Economy ... 387 Sugiyanto
Student Of Doctoral Program, University 17 August 1945 Semarang
Regional Autonomy In Actualizing Management Of
Good Local Government ... 394 Achmad Fauzi
Student of Doctoral Program University of Muhammadiyah Surakarta Lecturer at Faculty of Law, University 17 August 1945 Semarang
The Importance of Local Regulation in the Feeling of
Rekruitmen Position ... 401 Retno Mawarini S and Agus Nurudin
Lecturer at Faculty of Law, University 17 August 1945 Semarang Government Tasks In Reaching Standarized Health
Condition In The Welfare State Of Indonesia ... 404 Wijaya
Lecturer at Faculty of Law, University 17 August 1945 Semarang
x The Challenge For Indonesia Airspace Law In The
Face Of The Era Of Drone ... 409 Evert MaximiliaanTentua
Student Of Doctoral Program, University 17 August 1945 Semarang Lecturer at Faculty of Law, University 17 August 1945 Semarang
The Urgency Of The Pancasila Setting Registration
As The Idiology And The Basis Of The State ... 415 Hadi Karyono
Student Of Doctoral Program, University 17 August 1945 Semarang Lecturer at Faculty of Law, University 17 August 1945 Semarang Zabidin
Lecturer at Faculty of Law, University 17 August 1945 Semarang
Regulation System On Loading / Unloading Cargo
At Indonesia Port Corporation Based On Justice ... 421 Junaedi
Student Of Doctoral Program, University 17 August 1945 Semarang
Franchise Business Development Strategy Based On The Balance Of Balance In The Effort Of National Economic
Strengthening In Global Era ... 429 Mulyani Santoso
Student Of Doctoral Program, University 17 August 1945 Semarang
Legal Accountability Promise Against Regional
Head Of Regional Government Politics ... 435 Nurul Muttaqin
Student Of Doctoral Program, University 17 August 1945 Semarang.
Traditional Market Protection And Modern
Market Control Policy In Pati Regency ... 442 Sismoyo
Student Of Doctoral Program, University 17 August 1945 Semarang
Ethical Base-Moral Law Of Indonesia: Perspective Of Pancasila ... 450 Theodorus Yosep Parera
Student Of Doctoral Program, University 17 August 1945 Semarang
Public Policy In The Use Of Foreign Worker:
The Law Interpretation Of The Law On The Constitution ... 461 Titi Herwati Soeryabrata
Lecturer at Faculty of Law, University 17 August 1945 Semarang
Normativity Of Economic Democracy In Regulation
For Micro, Small, And Medium Enterprises In Indonesia ... 467 Totok Tumangkar
Student Of Doctoral Program, University 17 August 1945 Semarang Lecturer at Faculty of Law, University 17 August 1945 Semarang Johan Erwin Isharyanto
Lecturer at Faculty of Law, University 17 August 1945 Semarang
The Human Rights In The Life Environmental Perspective ... 474 Yasminingrum
Student Of Doctoral Program, University 17 August 1945 Semarang Lecturer at Faculty of Law, University 17 August 1945 Semarang
Building Good Governance System Using Discression
To Make People Wellbeing ... 481 Partono
Student Of Doctoral Program, University 17 August 1945 Semarang
xi
Administration And Sectoral Asset Management In Optimizing
Local Revenues Based On Government Regulation No.6 Year 2006 ... 487 Kunarto
Student Of Doctoral Program Sultan Agung Islamic University Lecture at Faculty Of Law University 17 August 1945 Semarang
The Role Of The Government In Anticipating The Outsourcing System
Deviation On Post-Decision Of The Constitutional Court ... 493 Mashari
Lecture at Faculty Of Law University 17 August 1945 Semarang
Death Penalty Policy Analysis Of Narcotics Criminal Acts
In Legal Perspective And Human Rights ... 499 Tanto Gailea
Student Of Doctoral Program, University 17 August 1945 Semarang.
Legal Protection For Consumers In E-Commerce Business Transactions ... 508 Darmawan Tri Budi Utomo
Lecture at Faculty Of Law University 17 August 1945 Semarang.
Government Policy In Schedule Of
Non Government Organization (NGO) In Indonesia ... 513 Edi Pranoto
Lecture at Faculty Of Law University 17 August 1945 Semarang.
Illegal Fishing As A Form Of Criminal Act In The Field Of Economics ... 521 Eva Arief
Student Of Doctoral Program Sebelas Maret University Surakarta Lecture at Faculty Of Law University 17 August 1945 Semarang
Reconstruction Of Legal Agreement Policies Of E-Commerce Underite No.11 Of 2008 As The Protection Of Law
For Sellers And Buyersin E-Commerce ... 527 Tri Ginanjar Laksana
Telkom Institute of Technology Purwokerto
Faculty of Industry and Informatics, Department of Informatics Student Of Doctoral Program, University 17 August 1945 Semarang
The Three Ends Strategy As The Effective Solution To Eradicate
Human Trafficking In Asean ... 535 Anak Agung Ayu Ngurah Tini Rusmini Gorda
Lecturer of the Faculty of Law, Universitas Pendidikan Nasional, Denpasar Anak Agung Bagus Ngurah Agung Surya Putra
Law Graduate of the Faculty of Law, Universitas Udayana Anak Agung Mia Intentilia
International Relations Graduate of the Faculty of Social and Political Science Universitas Udayana
Reconstruction Of Legal Culture Of Political Party
In Recruitmen Of Legislative Members With Gender Equality ... 544 Baharudin
Student Of Doctoral Program Diponegoro University Lecturer at Faculty of Law University of Bandar Lampung
The Phenomenon Of Corruption In Bureaucratic Apparatus ... 552 Bambang Hariyanto
Student Of Doctoral Program, University 17 August 1945 Semarang
xii
The Protection Of Pharmacist Law In The Cooperation Agreement
Of A Pharmacy Establishment ... 557 Bambang Joyo Supeno
Student Of Doctoral Program Diponegoro University
Lecturer at Faculty of Law, University 17 August 1945 Semarang
The Reconstruction Of Public Policy In Overcoming Problems
In Investment-Based Social Justice ... 565 Budi Purnomo
Student Of Doctoral Program, University 17 August 1945 Semarang
Polluter Pays Principle In The Environmental Damage Caused By Industrial
Activities A Case Study Of Several Court Verdicts In Indonesia ... 577 Edy Lisdiyono
Lecturer at Faculty of Law, University 17 August 1945 Semarang
Basic Dynamics Of Public Policy Testing Between
The Legal And The Benefit Approach ... 582 Eko Yulianto
Student Of Doctoral Program, University 17 August 1945 Semarang
Conflict Resolution In Foreign Courts In Criminal Justice System
Of Children In Indonesia ... 588 Erna Trimartini
Student of Doctoral Program Sebelas Maret University Surakarta Lecturer at Faculty of Law, University 17 August 1945 Semarang
Law Enforcement In Business Disposal In Indonesia ... 593 Faisal Santiago
Lecturer at Faculty of Law, Borobudur University
Sexual Deviation Management To Cope With Dynamic Moral Degradation
Due To Information Technology Development ... 597 Hervina Puspitosari and Bintara Sura Priambada
Lecturer at Faculty Of Law, University Of Surakarta
Reconstruction Of The Law Of The Restorative Justice And Diversion Approach To The Child In Conflict With The Criminal Law
Based On The Justice And Human Values ... 604 Indra Retnowati
Student Of Doctoral Program, University 17 August 1945 Semarang
Determining Injury Degree On Light And Intermediate Injury
In Clinical Forensic Case ... 615 Intarniati Nur Rohmah and Gatot Suharto
Forensic and Medicolegal Department Diponegoro University Medical Faculty Kariadi Central Public Hospital Jl. Dr. Sutomo No. 16 Semarang
Stephanie Renni Anindita
Forensic Specialist Program Forensic and Medicolegal Department Diponegoro University Medical Faculty
Kariadi Central Public Hospital Jl. Dr. Sutomo No. 16 Semarang Implementation Of Disaster Management Paradigm According To
Law No. 24 Of 2007 Of Stakeholder Synergy In Disaster Handling ... 620 Johan Erwin Isharyanto and Suroto
Lecturer at Faculty of Law, University 17 August 1945 Semarang
Step Footprint Indonesia Asylum Seeker 1965 Under International Law
In Perspective Critical Theory ... 626 Mardiyono
Student Of Doctoral Program, University 17 August 1945 Semarang
xiii
Development Strategy Of Creative Industry With Knowledge Creative
As A Driver For Tourist Destinations In Semarang Regency ... 632 Nurchayati and Andalan Tri Ratnawati
Lecturer at Faculty of Economy and Business, University 17 August 1945 Semarang
The Network Growth Of Minimarket Franchise Towards
The Principle Of Justice To The Income Tax ... 641 Pho Seng Ka
Student Of Doctoral Program, University 17 August 1945 Semarang
Legal Status Of The Company Limited By Founder Of
Law Number 40 Of 2007 On The Company Limited ... 644 Sigit Irianto
Lecturer at Faculty of Law, University 17 August 1945 Semarang
Strengthening Of Food Product Supervisory Through Standarization
As A Protection To Consumer ... 650 Siti Mariyam
Student Of Doctoral Program, University 17 August 1945 Semarang Lecturer at Faculty of Law, University 17 August 1945 Semarang
Policy Of Warehouse Receipt In A Collateral Perspective:
Economic Analysis Of The Law ... 654 Sri Mulyani and Mahmuda Pancawisma Febriharini
Lecturer at Faculty of Law, University 17 August 1945 Semarang
Legal Responsibility Of Medical Comittee On
Professionalism Doctors In Patient Safety ... 658 Sri Primawati Indraswari
Student Of Doctoral Program, University 17 August 1945 Semarang
Legal Politics Of Pancasila Democracy Conditions
During New Order Period ... 661 Sri Puspitaningrum
Student Of Doctoral Program, University 17 August 1945 Semarang Lecturer at Faculty of Law, University 17 August 1945 Semarang
Executive Policy On The Rehabilitation For Domestic Violence Victims ... 667 Sri Wulandari
Lecturer at Faculty of Law University 17 August 1945 Semarang
Economic Analysis Of The Proces Illegal Fishing ... 674 Subur Subroto
Student Of Doctoral Program, University 17 August 1945 Semarang
Tapping Authority By The Corruption Eradication Commission (KPK)
In The Indonesian Criminal Justice System ... 680 Sukmareni
Lecturer at Faculty of Law Muhammadiyah University of West Sumatra
Relationship Between Corrupt Behavior The Powers
Abatement Cultural Perspective ... 688 Sunarto
Lecturer at Faculty of Law University 17 August 1945 Semarang
Cooperative Social Responsibility/CoSR) ... 694 Suparnyo
Lecturer at Faculty of Law of Muria Kudus University Catur Agung Bintoro
KUD Mintorogo Demak
xiv
Democracy "Character" Local Wisdom Building Democratic Political Awareness Of Character “Akal Budi” Autentik Indonesia:
A Study From Experience Of Governance System Of Republic Of Nagari
In West Sumatera ... 700 Wendra Yunaldi
Lecturer at Faculty of Law Muhammadiyah University of West Sumatra
Perspective Of Family Psychoeducation Therapy For Treatment
Sanctions Against Mental Disorders Criminal Actors ... 708 Y. A. Triana Ohoiwutun
Lecturer at Faculty of Law, Jember University
Policy Reconstruction Of Terrorism Criminal Trial
Through Death Penalty ... 715 Fajar Purwawidada
Student Of Doctoral Program, University 17 August 1945 Semarang
The Settings Political Parties In Democracy Indonesia System
(Critical Review of Decision of the Constitutional Court Number 5 / PUU-V / 2007
concerning Renewed Individual Candidate In Pilkada) ... 724 Romli
Student Of Doctoral Program, University 17 August 1945 Semarang Lecturer at Faculty of Law, University 17 August 1945 Semarang
Juridical Review On Compact City Conception
To Spatial City Support Planning ... 734 Pudjo Utomo
Student Of Doctoral Program, University 17 August 1945 Semarang
Constructing Water Resources Management Based On Eco Social Justice
(Studies In Amdk Company Through Multinational Company Investment) ... 740 Adji Samekto
Lecturer at Faculty of Law,Diponegoro University Nita Triana
Lecturer at Faculty of Law, Islamic State Institute Purwokerto Sri Mulyani
Lecturer at Faculty of Law, University 17 August 1945 Semarang Nanik Trihastuti
Lecturer at Faculty of Law,Diponegoro University
Good Impression Of Social Marketing In Public Health ... 745 Narariya Dita Handani
Dong-A University, Busan, South Korea
Qualitative Study Of Health App On Loyalty:
Study Of Health Applications On Apple ... 750
Rianmahardhika Sahid BudiharsenoDong-A University, Busan, South Korea
Copyright License Of Use Certificate As Object Fiduciary Insurance ... 756 Sanusi, Kanti Rahayu, and Afifah Novelia Putri
Faculty Of Law, Pancasakti University
The Construction Of Presidential Government Based On
The 1945 Constitution Towards A Pure Presidential Government System ... 726 Sulardi
Lecturer at Faculty of Law University of Muhammadiyah Malang
xv
Building Concept Of Ideal Replacement Mechanism Between Member
Parliament Time By Political Parties In The Perspective Of Democracy ... 769 Fadchurrohman
Student Of Doctoral Program, University 17 August 1945 Semarang
Legal Status Of The Hospital In Improving Public Health Services ... 777 Juhari
Student Of Doctoral Program, University 17 August 1945 Semarang Lecturer at Faculty of Law, University 17 August 1945 Semarang
Principle Ultimium Remedium And Potential Corruption
In The Perspective Of The Environment Act ... 784 Rumbadi
Lecturer at Faculty of Law, University of Riau Islands Batam
Potential Interventions Local Wisdom In Indigenous
For Child Trafficking Prevention ... 793 Sri Walny Rahayu
Lecturer at Faculty of Law, Syiah Kuala University
Efficiency Improvement Efforts In The Area Of Urban Land Use
(Study In The District Grobogan) ... 799 Untung Leksono
Lecturer at Faculty of Law, University 17 August 1945 Semarang
Proseding ICLEH 2018
1HEALTH CARE IN THE PERSPECTIVE OF CONTRACT LAW:
THE CONSTITUTIONALIZATION OF CONTRACT LAW Agus Sardjono
Professor at Faculty of Law, Universitas Indonesia Introduction
An online site (web page) reported a lot of events of „malpractice cases‟ in the field of health care.1 Regardless of the substantive truths of the news posted on such page, what is certain is that in health care, it is not impossible that there is a mistake or negligence committed by the healthcare provider.2 The problem is, mistakes in providing health care have a significant impact or risk considering the victim is human. Victims of mistakes in health care, in particular curativehealth care, can suffer from disability or even loss of life.
Therefore, discussing health care from the perspective of contract law becomes very important, as it relates directly to the health or even life of a person, who legally has specific rights and obligations in relation to the contract law itself. Indonesia has stipulated a Law concerning Health, enacted under No. 36 of 2009, (hereinafter referred to as the Health Law 2009).3 In this Law, the provision of proper health care is regulated.
The Health Law 2009 introduced 5 categories of health care, they are : promotive,4 preventive,5 curative,6 rehabilitative,7 and traditional health care. This paper mostly discusses about curative health care that is most directly related to contracts in the field of health care. However, this paper is not intended to discuss malpractice cases occurring in Indonesia. This article will talk more about the ideal of how contracts in the field of health care should not only be based on the principle of freedom of contract as taught in law faculty, but how humanitarian and justice ideas should become the main consideration in the formation and execution of those contracts.
Contract Law and Health Care in Indonesia
The doctrine of „freedom of contract‟ places the contracts in a sterile position from any social influences existing in the process of its formation and implementation.8 The jurists strongly believe that in the formation of a contract, such principle is the spirit of the contract itself. If the contracting parties have no freedom to contract, then the contract will be said to contain a defect, which does not qualify as a binding contract. In history, freedom of contract is related to the development of free market and the ideals of political economist.9 Economic freedom was desired at that time. Everyone wanted to be free in running any business activities, including to be free in determining what to do in the economic activities. In the legal order, the view was then manifested in the form of freedom to contract.
1Seehttps://daerah.sindonews.com/read/862555/27/seorang-caleg-terpilih-meninggal-dunia-setelah-jalani-operasi- 1399825076. Accessed on 4 January 2018.
2In 2012, it was reported that the number of health care malpractices reached 182 cases. See https://nasional.tempo.co/read/
469172/sampai-akhir-2012-terjadi-182-kasus-malpraktek. Accessed on 4 January 2018.According to Poskota News, cases of malpractice allegations during 2006 to 2015,out of the 317 cases of malpractice allegations reported to the Indonesian Medical Council (KKI), there were 114 cases involvedgeneral practitioners, followed by surgeons with76 cases, obgyn doctors (obstetricians) with 56 cases and pediatricians with 27 cases. Seehttp://poskotanews.com/
2015/05/20/dokter-umum-paling-banyak-lakukan-malpraktik/. Accessed on 4 January 2018. See also https://aplikasi ergonomi.wordpress.com/2014/05/22/malpraktek-medis-di-indonesia/, accessed on 5 January 2018.
3Law No. 36 of 2009 concerning Health LN-2009-144. Hereinafter referred to as the Health Law 2009.
4 Promotive health care is an activity and / or a series of activities of health care prioritizing health promotion activities. See Article 1 point (12) of the Health Law 2009.
5Preventive health care is a preventive activity against a health problem / disease. See Article 1 point (13) of the Health Law 2009.
6Curative health care is an activity and / or a series of activities of treatmentaimed at the cure of disease, relief of disease- related suffers, disease control, or control of deformity so that the quality of the sufferer can be maintained optimally. See Article 1 point (14) of the Health Law 2009.
7Rehabilitative health careis anactivity and / or a series of activities to return the former sufferer backto the community that he/she can resume his/her functions as the member of the community who is useful for him/herself and the community to the best he/she is capable. See Article 1 point (15) of the Health Law 2009.
8This concept is especially followed by those who embrace the positiveism and legism ideology, which strongly holds to the normative content of the text of the law. The positiveism ideology holds that what becomes law is what is established as law by the legislator. Meanwhile, legism ideology holds that what constitutes as law is what is governed by the law.
9 P.S. Atiyah, The Rise and Fall of Freedom of Contract, (Oxford: Clarendon Press, 1979), p. 398. Atiyah deeply discusses the philosophical aspect of this principle of freedom of contract. See pages 219 – 304. Part II (The Age of Freedom of Contract) from the book mentioned above. The role of individualism ideologygreatly affects the formation of legal norms.
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2What is interesting is that in Burgerlijk Wetboek (BW), such concept is not explicitly stated as a freedom from the parties to formulate a contract. The formulation used, among others, is as mentioned in Article 1321:
“there is no valid consent if such consent is given by mistake. or is obtained by violance extortion or by fraud”.10 In other words, BW does not explicitly state that one of the conditions for a legitimate contract is not the freedom to contract of the parties, but its negative formulation, that in the prepation of a contract there should be no mistake, violance extortion, and fraud.
Furthermore, the formulation of Article 1338 of BW which has so far been wrongly concluded, as if this article is the embodiment of the doctrine of freedom of contract, also not mentions a single word that states that the parties have the freedom to form a contract. The formulation of the article is somewhat revolving, i.e.
that “All vallid agreements apply to the individuals who have concluded them as law”.11 Meanwhile, all valid agreements refer to what is stipulated in Articles 1320 to 1337 of BW.
Article 1338 of BW is an affirmation that if a contract has been legally prepared, in the sense of fulfilling the conditions prescribed by law, then such contract is enforceable by the law. Instead, this article affirms that there is a limitation of freedom in its formation, that is, it must meet the requirements prescribed by law.
According to the Law, an agreement is valid if :12
(1) It is prepared by persons having legal capacity and authority to make an agreement. Elements of this legal capacity include : age (adults according to law), an ability to understand the legal consequences of an act (among others marked by mental health), and authority according to law.13
(2) In preparing such agreement there are no elements of fraud, mistake, and violance extortion. It means that there must be free will from the parties preparing the agreement. Any elements of fraud, mistake, and violance extortion will result in the disability in free will.14 This article specifically tries to formulate the doctrine of freedom of contract into a law.
(3) The object contracted must be a freely tradable, and clearly identifiable object, either in terms of type (goods or service) or size (quantity, volume, length, weight, etc.).15
(4) The agreement is not contrary to law, morals, and public order.16
The latter refers to the law, morals, and public order as elements that limit the freedom of the parties in making a contract. In other words, freedom becomes very conditional (being relative) because it must not violate the law, morality, and public order. In the context of a contract in the field of health care, such provision is very good considering the object of such contract is something related to health, safety, and even the lives of others. Agreements on health care, especially those that are curative, should not be built on the principle of freedom of contract alone, but they must meet the standards of safety and quality of care, in fact they should prioritize more on the safety of patients.17
In general, health care contracts are performed orally. Patients only come to the hospital or to a doctor they „know‟. They come to complain about their pain in the hope of getting an accurate diagnosis and getting a proper treatment. In the academic realm, the form and nature of such contracts are usually identified as informal and implied contracts. They are said to be informalbecause the law does not require certain formal or written forms. It is said implied because the contracted achievement clause is not expressed explicitly by the parties.18
10See the Civil Code, which is a translation of Burgerlijk Wetboek by Prof. R. Subekti and Tjitrosudibio. In the Dutch language is as follows: “Geene toestemming is van waarde, indien dezelve door dwaling is gegeven, door geweld afgeperst, of door bedrog verkregen”. SeeDe Wetboeken, Wetten en Verordeningen, Benevens de Grondwet van de Republiek Indonesie, (Jakarta: Ichtiar Baru – Van Hoeve, 1989), d/h/ Engelbrecht, p. 326.
11Article 1338 of BW: “Alle wettiglijk gemaakte overeenskomsten strekken dengenen die dezelve hebben aangegaan tot wet”. Engelbrecht, p. 327.
12Article 1320 to Article 1337 of Burgerlijk Wetboek.
13Article 1329 of Burgerlijk Wetboek expressly states that all persons are deemed to have the authority or ability (legal capacity) to perform a legal act, unless the law otherwise provides. BW itself states that an immature person and a person who is placed under the capability otherwise can not perform a legal act. Furthermore, in the Limited Liability Company Law, it is expressly stated that the Board of Directors has the authorisation to represent the company. This means that any persons who are not members of the Board of Directors do not have the legal capacity to conduct legal actions on behalf of the company. Similarly, the CooperativesLaw, the Foundation Law, and even the Book of Commercial Law (KUHD) with respect to Firms, CV, and so forth..
14See Articles 1321 to 1328. These articles explain at length what the free will means. This term means that the word
“agree”does not necessarily means that the agreement becomes legitimate. Agree means that there is no element of mistake, violance extortion, and fraud. Even if a person has puttheir signature in the agreement document, not necessarily the agreement is valid and binds those who make it. Company Law addresses this issue at length.
15See Articles 1332 and 1333 ofBurgerlijk Wetboek.
16See Articles 1335 to 1337 of Burgerlijk Wetboek.
17See Articles 53 and 54 of the Health Law 2009.
18 Agus Sardjono, et al., Pengantar Hukum Dagang, (Jakarta: Rajawali Pers, 2014), p. 8-9. This book discusses various contracts, among others from Ralph C. Hoeber, et al., Contemporary Business Law, Principles and Cases, 3rd ed.,
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3Specific achievements in curative health care contracts are generally more common in the part of doctors or hospitals. While the patients usually do not have too specific achievements. Patients‟ most important achievement is paying for medical expenses or treatment. In addition, they also provide correct and true information about how they feel, although this is not very significant, because there are also patients who have been unable to provide information because of their condition. Later on, in fact, the doctors who are obliged to diagnose what the illness suffered by the patient also unable to provide sub information. In addition, patients are also obliged to follow instructions, information, or procedures for the use of drugs or medical devices.19
In contrast, the obligations of Doctors and Hospitals are widely regulated, not only in the Code of Medical Ethics, but also in some laws relating to curative health care.20 Article 58 paragraph (1) of the Health Law 2009 explicitly states the rights of patients, include to demand compensation from any party providing health care which due to their mistake or negligence the patients suffer losses. To determine the mistake or negligence of health care providers, especially doctors, there are rules in the Medical Law 2004 regulated this matter, in particular Articles 44 and 45. In addition to those articles, the magnitude of such mistakes or negligence may also be determined by the Code of Medical Ethics. That is, if there are cases that cause harm to the patients, especially due to curative health care provided by the doctors, then if the mistakes can be proven, it can be determined that such doctors violate the Code of Medical Ethics in carrying out their profession.
Just for example, Article 14 of the Code of Medical Ethics states: “A doctor must be sincere and use all his knowledge and skills for the benefit of the patient, that when he is unable to perform an examination or treatment, upon the consent of his patient / family, he shall refer the patient to a doctor who has the expertise to do so”. This provision is very closely related to the issue of competence. A doctor in carrying out his profession must be based on his own scientific standards and skills (competence). If, in conducting curative health care, he was struck by the fact that he did not have the knowledge or skills related to the illness suffered by the patient, he should refer his patient to another more skilled doctor. There should be no elements of try and error.
Competence of doctors even become a major element that must be proven in advance by „prospective doctors‟ before they get a practice license. Article 44 of the Health Workers Law 2014 requires a Registration Certificate or Surat Tanda Registrasi (STR) for a doctor or other health worker who wishes to provide health care. To obtain such STR, a Certificate of Competence or a Certificate of Profession is required. These requirements are stipulated to further ensure that health care is actually performed by a competent doctor or healthcare provider.
In principal, the contract law, particularly the one relating to curative health care contracts, is not only governed by the principle of freedom of contract as is the doctrine of contract law itself. Contract law in the field of health care is heavily colored by the rules of the relevant law, the primary objective of which is the inner and outer health of the related parties, especially the patients. To better understand how legislative regulations in the field of health affect any contracts in the field of curative health care, the following describes how the State stipulate the provisions of law concerning health care.
Health Care According to Law in the Field of Health
There are at least three laws directly related to the health care system in Indonesia. The first is the Health Law 2009. Second, the Health Workers Law 2014, and the Medical Practice Law 2004. These three laws are followed by implementing regulations, and are still supplemented by the Code of Medical Ethics that is directly related to the standard of health care itself.
The Health Law 2009 regulates more about the State policy in the national health system, including with regard to health care systems that fall into two categories: individual health care and public health care. 21In the context of this article, the individual health care system set forth in this law more or less relates to individual health care contracts, that governs the relationship between a doctor or hospital with a patient. This is evident from the regulations set about the patient rights in relation to doctors and hospitals. At least this law becomes one of the legal sources governing contractual relations between patients and doctors and between patients and hospitals.
(McGraw-Hill Book Company, 1986), p. 148 – 149. We can also see in F. William McCarty & John W. Bagby, The Legal Environment of Business, (Irwin, 1990), 215.
19 Titik Triwulan Tutik & Shita Febriana, Perlindungan Hukum Bagi Pasien, (Jakarta: Prestasi Pustaka Publisher, 2010), p.
30.
20Some of the laws in question are Law no. 36 Year 2009 concerning Health (Health Law 2009), Law no. 29 of 2004 concerning Medical Practice (Medical Law 2004), and Law no. 36 of 2014 concerning Health Workers (Health Workers Law 2014).
21Article 52 paragraph (1) of the Health Law.
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4When contractual relationships between doctors and patients are more likely to arise through implied contracts, this law becomes an important source for determining essential clauses,22that should be stated in curative health care contracts, but not expressly stated by both parties. Furthermore, the Health Workers Law 2014, among others, regulates the competence and authority of doctors in conducting curative health care practices. For an example, about the Registration Certificate (STR) and Practice License (SIP) for health workers, including doctors.23 Competence of a doctor is an important element with regard to the contractual relationship between patients and such doctor. When a patient has placed so much confidence in the doctor to be able to cure his illness, without having to ask himself whether the doctor has the ability to do so, there should be a rule that ensures that the doctor really has the competencies required by such patient.
Meanwhile, the Medical Practice Law 2004 seeks to provide a regulatory basis for patient protection, quality improvement of medical services, and also to provide legal certainty for the community and for the doctors themselves.24 It is important to provide certainty to the doctors in the context of their roles in the field of curative health care. One of the most important is the standard of medical education, including for dentists, and regulations on the conduct of medical practice.25 Both are very important to be regulated, so that the doctors themselves understand what their rights and responsibilities are.
By the three laws as mentioned above, the contractual relationships between doctors and patients have sufficiently been regulated. At least to the aspect of the rights and obligations of both, which in practice have never been formulated explicitly in the curative health care agreements. In other words, in the context of curative health care, the relationship between doctors and patients is more likely to be regulated in health legislation than on the terms of the agreement between the two. It may be argued that the principle of freedom of contract does not entirely work in the contractual relationships in the field of curative health care. Even if there is a freedom, then such freedom is more prevalent in the patients, especially the freedom to choose certain doctors to whom they will seek treatment. Furthermore, after they choose, their position then becomes inferior to the doctors, since the specific achievements are then more prevalent in the doctors. That is why the law on consumer protection also talks a lot in relation to the relationship between doctors on the one hand and the patients as the customers.
Consumer Protection
As mentioned above that when patients comes to a hospital or to a doctor, they only think how to cure the illness they suffer. They never questions whether the hospital has the means and infrastructure to take care of them. They also never questions whether the doctorthey come to or who is appointed by the hospital really has the skills in doing the treatment for the illness they suffer.26
In curative health care practice, treatment service contracts have never been made in writing. Similarly with regard to what should be done by the doctors that was never beenpromised in such contracts. In the perspective of contract law, the understanding of “certain things” in the contractual relationships in the field of health care have really never been specifically agreed upon. The doctor's achievement known to the patient is simply “cure” the illness. It's very common. About what to do, how to do, how long it takes, even the measurable results are never promised. There was never a doctor who promised that the patient would be healed with the treatment he was taking. Even if there are doctors who promise so, it can be qualified as violating ethics, especially if it is associated with the amount of service payments concerned.
This “not certain” condition makes the patients‟ position a healthcare customers become very vulnerable.
That is why consumer protection laws are becoming highly relevant in the context of healthcare contracts.
Although health laws have been very helpful with the normative preconditions for curative health care, the enforcement process still requires some legal efforts. One of these legal efforts is by enforcinga consumer protection law. Patient is a curative health care consumer. While hospitals and doctors are “business actors”27 who provide services.
Although somewhat controversial and appears to beforcing the qualify doctors as “business actor”, but if the review is based on the relationship between curative health care providers and patients, it is not wrong to state that doctorsar service providers. Moreover, taking into account Article 4 point (a) stating that consumers
22Essence of contract means any condition or stipulation in a contract which is mutually understood and agreed by the parties to be a such of vital importance that a sufficient performance of the contract cannot be had without exact compliance with it is said to be „of the essence of the contract‟. See Black’s Law Dictionary, p. 546.
23Articles 44, 45, and 46 of the Health Workers Law 2014.
24Article 3 of the Medical Practice Law 2004.
25See Chapters IV, V, and VII the Medical Practice Law 2004.
26In the Code of Medical Ethics it has also been stated that patients fully believe in the doctors. See the Preamble of the Code of Medical Ethics of 2012.
27It is somewhat controversial to qualify doctors as business actors, since the definition of business actors may not be applicable to the doctors. Article 1 point (3) of the Consumer Protection Law 1999 states that: “Business actor is an individual person or a company, in the form of a legal or non-legal entity established and domiciled or engaged in activities within the legal territory of the Republic of Indonesia, conducting various kinds of business activities in the economic sector through contracts, both individually and collectively”.
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5have “the right to comfort, security and safety in consuming goods and / or services”, it is clear that a doctor is a party who, according to the Consumer Protection Law 1999, should provide services conveniently andsafely, and should ensure the patients safety.
On the other hand, doctors also have the right to obtain legal protection in their efforts to provide curative health care.28 This protection is, among others, regulated through arrangements on standard procedures to be complied with, for example about STR, SIP, informed consent, exceptions in life-saving efforts, and so on.29 STR and SIP are associated with the authority that doctors have in providing curative health care. Prior informed consent relates to the procedures for certain actions which, when approved by the patient or the patient's family, in some way relieve or reduce the burden of liability on the doctor's shoulders. These may affect the enforcement of consumer protection, when patients experience certain events related to the implementation of curative health care.
The Consumer Protection Law 1999 affirms that business actors, who in this context may be doctors and hospitals, have the following obligations :30
1. to act in good faith in conducting the business;
2. to provide correct, clear end honest information with regard to the condition and warranty of the goods and/or services and provide explanation on the use, repair and maintenance;
3. to treat and serve the consumers properly and honestly and nondiscriminatively;
4. to guarantee the quality of goods and/or services produced andor traded based on the prevailing quality standard provisions of the goods and/or services;
5. to provide the opportunity to the consumers to test and or/try on certain goods and/or services and provide warranty and/or guarantee on the produced and/or traded goods;
6. to provide compensation, indemnification and/or substitution for the damages caused by the use, consumption and application of the goods and/ or services;
7. to provide compensation, indemnification and/or substitution if the goods and / or services received or used do not accord with the agreement.
Items (1) and (3) are closely related to ethics. Doctors must be ethical. One form of ethical manifestation is that doctors in providing services should not be affected with bad or reprehensible motives. The main intention is to cure. Item (2) requires the doctors to be honest and provide clear information to the patients about their illness and treatment measures. This relates to the patients‟ right as mentioned in Article 4.c of the Consumer Protection Law 1999, and Article 56 paragraph (1) of the Health Law 2009, which reads :
“Everyone shall be entitled to accept or reject part or entire aid measures to provide to them after receiving and understanding the information concerning such measures completely”. This article also deals with the prior informed consent doctrine.31
Item (4) relates to the competence of the doctors. While it is not possible to ensure that the doctors‟
actions can cure the patient's illness, at least the doctors must be confident that they have the competence and authority to provide the intended health care. The beliefs here relate to both administrative and substantive aspects. The administrative aspect refers to administrative requirements such as STR and SIP and the like, i.e.
whether or not the doctors have fulfilled them. While the substantive aspect refers to the competence the doctors have, whether or not they can make a diagnosis and medical treatment correctly to patients who seek treatment.
Item (5) relates to the standard of curative health care concerned. Among other things, the selection of certain drugs that should be consumed by patients. Of course, it is not the patients who have to prove whether or not the drugs are suitable, but on the basis of science or any known research findings, is it appropriate for such certain drugs to be consumed by the patients? Sometimes there is a doctor who immediately gives the harshest drug for a particular type of illness, so that in time even the patient is unfavorable, for example, the patient becomes immune to more “low” drugs.
Items (6) and (7) relate to the possibility of mistakes or negligence by the doctors concerned. In practice, it is rare that anyone directly admits his mistakes or negligence. This article is an important basis for enforcing the law, especially in protecting patients from a doctor‟s mistakes or negligence in providing curative health care.
The provisions concerning patient protection drawn from the above mentioned Consumer Protection Law are important legal sources in relation to vulnerable or weak patient positions. These rules provide a basis for a patient to do something (legal actions) when he suffers a loss due to curative health care not as it should be.
However, it does not mean that all consumers will take legal action when they are harmed by a doctor. There
28See Article 27 paragraph (1) of the Health Law 2009, Article 58 paragraph (2) of the Health Law 2009, andhttps://www.ncbi.nlm.nih.gov/pmc/articles/PMC2840885/, particularly related to the informed consent. See also Tutik &Febriana, Perlindungan Pasien, h. 32-33.
29See Articles 29, 30, and 36 of the Medical Practice Law 2004.
30Article 7 of the Consumer Protection Law 1999.
31Refer tofootnote 27, supra.
