Legal Literacy - Compared to other fields of legal studies, health law is not very familiar to Indonesian society. This may be due to the exclusivity of health law, which is more familiar among academics and health practitioners. Health law is compulsory for medical students throughout Indonesia in the Medico-legal course, but health law is not compulsory for law students.

The rapid development of the national health insurance system requires every Indonesian citizen to be registered as a member of the Social Security Agency (BPJS) Kesehatan. This is intended to ensure that the practice of health insurance is in line with the provisions of Article 28 H of the 1945 Constitution, which states that "everyone has the right to live in physical and spiritual prosperity, to have a place to live, and to obtain a good and healthy environment, and has the right to obtain health services, and the state is obliged to provide them."

In carrying out this constitutional mandate, every citizen needs to understand the rights related to health and the state's obligations to fulfill them. Therefore, knowledge of health law should be possessed by everyone.

Definition of Health Law

Prof. H.J.J. Leenen formulates that health law includes all legal provisions that are directly related to health maintenance and the application of civil law, criminal law, and administrative law in that relationship. Also, international guidelines, customary law, and jurisprudence related to health maintenance, autonomous law, science, and literature become sources of health law (Fred Ameln, 1991, 14).

The above definition provides an overview that health law focuses on all provisions relating to health maintenance (health care), both directly and indirectly. Legal provisions that are directly related to health maintenance include, for example, provisions regarding immunization procedures and provisions for the eradication of infectious diseases. Meanwhile, indirect provisions are based on rules that have civil law dimensions, criminal law, and administrative law that are applied in relation to health maintenance.

Civil Law Dimension in Health Law

In health maintenance, there are two parties that need to be distinguished:

  1. Health Receivers, namely recipients of health services, including patients, namely people who are sick, and people who want to maintain or improve their health.
  2. Health Providers, namely health service providers, namely doctors and other health personnel such as nurses, pharmacists, midwives, laboratory technicians, nutritionists, and others.

Application of civil law in health maintenance can be seen from the relationship between Health Receivers and Health Providers. The relationship between a doctor and a patient, for example, is not only a medical relationship, but also a legal relationship contained in a medical agreement or, if it relates to healing/curative, is called a Therapeutic Agreement.

The agreement between a doctor and a patient in health maintenance is not always curative, but also preventive (disease prevention), rehabilitative (health recovery), and promotive (improving health quality). The agreement itself is regulated in the Civil Code in the law of obligations. Article 1320 of the Civil Code regulates the conditions for the validity of an agreement and if there is a party who is harmed - according to Article 1365 of the Civil Code, the party that causes the loss is obliged to pay compensation.

Criminal Law Dimension in Health Law

Referring to the Criminal Code, the criminal provisions that may be applied to the scope of health law include:

  1. Article 359 of the Criminal Code: Anyone who through negligence causes another person to die shall be punished with imprisonment for a maximum of five years.
  2. Article 360 of the Criminal Code: Anyone who through negligence causes another person to be seriously injured shall be punished with imprisonment for a maximum of five years or confinement for a maximum of one year.

These two articles can be imposed on doctors or other health service providers if in carrying out their duties they are negligent and cause the patient to die or result in serious injury. This happened to Dr. Setianingrum, a doctor in Pati Regency in the 1980s, who was prosecuted using Article 395 of the Criminal Code and found guilty at the first level and appeal. Although in the end she was acquitted at the cassation level, the threat of criminal sanctions still applies to doctors or other health service providers who are negligent in carrying out their work on patients.

Administrative Law Dimension in Health Law

Licensing is the most crucial administrative instrument in health law. Because health services cannot be carried out without permission from the authorized party. The establishment of hospitals, clinics, pharmacies (SIA), doctor's practices (SIP), nurses (SIPP), pharmacists (SIPA), and other health professions requires a series of procedures regulated by laws and regulations to be able to operate or carry out their profession. In general, this licensing is intended for controlling certain activities, preventing hazards to the environment, and directing by selecting people and activities (Ridwan HR, 2016, 209).

Other Guidelines in Health Law

In addition to being based on existing laws and regulations, in practice health law also adheres to international law, customary law, and jurisprudence relating to health services. The existence of autonomous law within the scope of health professional organizations is also a guideline in the practice of health services. For example, within the scope of the medical profession, the Medical Code of Ethics (Kodeki) and the Medical Ethics Honorary Council (MKEK) are known, which act like internal judicial bodies.

Enactment of a Health Law

Previously, the three dimensions of law in health law above were also partially regulated by a special law, including:

However, since August 8, 2023, the government has harmonized health laws through Law No. 17 of 2023 concerning Health. This is done in order to increase health capacity and resilience which requires adjusting various policies to strengthen the health system in an integrative and holistic manner in one law. Article 454 of the latest Health Law states that the laws mentioned above are revoked and declared no longer valid.

The enactment of Law No. 17 of 2023 concerning Health as a comprehensive health law has more or less changed the landscape of the existing health system. This also affects the development of Indonesian health law in the future.

References:

  • Criminal Code
  • Civil Code
  • Law Number 17 of 2023 concerning Health
  • Fred Ameln, Selected Topics in Medical Law, Jakarta: Grafikatama Jaya, 1991
  • Ridwan HR, State Administrative Law, Jakarta: Rajawali Press, 2016