Conditions for the Validity of a Therapeutic Agreement

It has been explained that a therapeutic agreement is an agreement between a patient and a doctor who treats his illness, for this reason it must also meet the conditions for the validity of the agreement in general as stated in article 1320 KUHper. namely

  • There must be a match of will or agreement between the patient and the doctor, the agreement on the therapeutic agreement in the event that the doctor requires certain medical actions, there must be what is called informed consent", namely the patient's consent for the doctor to be able to take certain medical actions, after the patient receives information about the diagnosis of his disease and what medical actions are taken to treat his disease;
  • The parties must be capable of performing legal acts, in the Civil Code a person is considered legally capable if the person concerned is 21 years old or has been married before the age of 21 and is not under guardianship. However, in therapeutic agreements there are also special rules governing "competence", these rules are contained in the Regulation of the Minister of Health No. 290/2008 concerning Approval of Medical Actions, In article 1 number 7 it is explained that those who can give approval for medical actions are competent patients, the definition of competent in this case is an adult patient or not a child according to the prevailing laws or has/has been married, their physical consciousness is not disturbed, can communicate reasonably and does not suffer from mental illness.
  • There is a specific object, in this case health services or healing efforts for patients and honor for doctor's services
  • There is a lawful causa or reason, namely that this therapeutic agreement must not conflict with laws and regulations, morality and public order, for example a doctor cannot perform an abortion (termination of pregnancy or fetus), because this action is against the law, another example is that a doctor cannot perform medical actions using marijuana, because the use of marijuana in Indonesia is still prohibited.

Doctor's Information Provision in Therapeutic Agreements

When a patient comes to a doctor and conveys his illness, the doctor will then convey his wishes containing a diagnosis of the patient's illness and medical actions. Doctors are basically required to provide information, whether requested or not, regarding medical actions that may need to be taken to the patient for his illness, honestly and completely, especially those containing high risks, unless the doctor assesses that the information conveyed may cause harm to the patient's health interests or the patient refuses to be given information (therapeutic exception).

In reality, it is not easy to assess that information can harm the patient's health interests, because it depends on many factors, especially regarding the patient's level of education. This is what often causes disputes in therapeutic agreements. In order to avoid lawsuits on the basis that the doctor did not provide information to the patient, the doctor must be able to provide proof that the loss caused if information is given will be greater than if information is not given.

If the doctor needs operative action on the patient, this information must be given by the doctor who performs the operation himself, while in the case of non-operative action, information is permitted to be given by another doctor or nurse on the instructions of the doctor in charge. The doctor's obligation to provide information to the patient arises as the patient's right to health services. The information provided by the doctor becomes the patient's right to give appropriate approval for medical action.

Doctor's Information to Patients Regarding Medical Actions

Doctor's information to patients regarding medical actions that the doctor needs to take on the patient, includes:

  • What type of operative action is performed and its purpose;
  • Benefits of medical action;
  • Risks that can occur to the patient;
  • Possible alternative medical actions;
  • Prognosis of the disease if medical action is not taken.

If there is a dispute regarding whether information has been given or not to the patient regarding medical action, then the proof is borne by the doctor.

Information does not need to be conveyed if:

  • The patient is still under 21 years old (not legally capable) or has memory loss;
  • There is a conflict of interest in the doctor;
  • Patient refused to be given information in writing;
  • The doctor assesses that the information will harm the patient.

Legal consequences if the patient is not given information about medical actions by the doctor, the patient can demand termination of the therapeutic agreement with or without compensation.

Source

  1. Mertokusumo, Sudikno. 2019. Perkembangan Hukum Perdata Di Indonesia. Genta Publishing: Yogyakarta
  2. Civil Code
  3. Regulation of the Minister of Health No. 290/MENKES/PER/III/2008 concerning approval of Medical Actions