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Protection Model and Fulfillment of Patient Rights on the

Implementation of Informed Consent in Indonesia

Syafruddin

and Arif Rohman

Law Faculty, University of Borneo Tarakan, Kalimantan, Indonesia

Keyword: Model, Protection, Patient Rights, Informed consent

Abstract: Due to the cases that occur related to the practice of medicine, the law contributes in providing solutions for

both physicians and patients as consumers of health, although medicine has a code of professional ethics as

the basis of doctors in carrying out their work. This study focuses on, how judges assess the express consent

on the implementation of informed consent and secondly, how the model of protection and fulfillment of

patient rights in the implementation of informed consent in Indonesia. The research method used is normative

legal research, based on health law and the health minister’s regulation as the main benchmark in analyzing.

The results of the discussion illustrate that, the main point of doctors and health workers in carrying out their

duties is the implementation of concrete agreements both written and oral. Second, the model for protecting

patient rights in law enforcement is applying reverse evidence to doctors as defendants of malpractice in

relation to the fulfillment of informed consent. From several cases, it appears that the judge’s decision is not

fundamental to informed consent, but tends to the negligence aspect of the doctor or medical personnel use to

Article 359 of the Criminal Code.

1 INTRODUCTION

The existence of a medical code-ethics is one of the

non-penal efforts for medical profession in carrying

out medical practice. The effort shows that the

protection of professions is very important that based

on science (Faden & Beauchamp, 1986). This is not

sufficient for society as well as health consumers,

thus it needs a regulation to be a legal device as a

legitimacy for patients to fulfil their basic needs.

Eventually, the existence of the health law and several

health minister regulations not only affect the

community as consumers of health services, but also

a strong legal basis for the implementation of medical

practice. Notwithstanding, there are still violations

committed by doctors and medical personnel, both

based on mistakes and negligence, so that it gives

negative impact to the patient (Muhammad, 2004).

Some cases were entered the realm of law and

handled by courts related to medical malpractice are

Judgment Number 46 K / Pdt / 2006, Judgement

Number 90 / Pid.B / 2011 / PN.MDO and Judgement

Number 1110 K / Pid.Sus / 2012. Some of these cases

are representatives of the implementation of health

law enforcement in Indonesia. Meantime, 2

investigations of this research, namely how is the

judge assesses the express consent on the

implementation of informed consent and how is the

model of protection and fulfillment of patient rights

in the implementation of informed consent in

Indonesia (Teguh, 1992).

The importance of this research is to find out the

model of legal protection for patients in the

framework of implementing informed consent in

Indonesia (Budianto, 2012).

2 METHODS

The study reviewed is a study with document study

categories, namely court decision analysis on medical

malpractice based on the judge's decision text

(Budianto, 2012). To achieve the desired results, the

way is done is to construct a case, identify the parties

to the conflict, sit down the case, the parties'

arguments, the judge's judgment and the decision.

Syafruddin, . and Rohman, A.

Protection Model and Fulﬁllment of Patient Rights on the Implementation of Informed Consent in Indonesia.

DOI: 10.5220/0009939520852092

In Proceedings of the 1st International Conference on Recent Innovations (ICRI 2018), pages 2085-2092

ISBN: 978-989-758-458-9

2085

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3 RESULTS AND DISCUSSION

3.1 Judge Appraisal of the Expressed

Consent on Implementation of

Informed Consent

Basically, law enforcement contains: (1) legal

material (regulations / legislation); (2) law

enforcement officers (judges, prosecutors, police,

lawyers and correctional institutions); (3) legal

facilities and infrastructure and (4) legal culture. The

process of law enforcement itself is closer to the

general adage, which is like a currency that has 2

(two) sides. Whereas between quality instruments and

legal instruments must not prioritize one thing in line

with the concept of the legal mind (justice) (Emanuel,

1999).

The process of law enforcement actually does not

occur at the application / law enforcement stage, but

can be started at the formulation stage (the law-

making stage). Meanwhile, law enforcement is an

effort to bring ideas and concepts into reality. Law

enforcement is a process to realize legal desires into

reality. Legal desires are the thoughts of the

legislature that are formulated in legal regulations

(Afandi, 2009).

Regarding law enforcement in the settlement of

criminal cases, there is an invalidity of the principle

of legality, even though, the principle of legality is

recognized as a fundamental principle by countries

which is using criminal law as a media of countering

crimes, but the enactment is not absolutely, in the

sense, the actor can equate an act that has occurred as

a criminal offense and can be punished as long as such

acts are contrary to written law which in international

criminal law is called the principles of general law

that recognized by nations (Jaya & Serikat, 2004).

To facilitate on understanding of the judge's

assessment of the Expressed Consent, several cases

are described as follows (Satjipto, 2009):

a. Judgement-number; 90 / PID.B / 2011 / PN.MDO

This case is a criminal act due to negligence that

caused the death of someone, Siska Makatei (Article

359 of the Criminal Code Jo. Article 361 of the

Criminal Code, Article 55 paragraph (1) of the 1st

Criminal Code. Defendant from Dr. Dewa Ayu

Sasiary Prawani (Defendant I), Dr. Hendry

Simanjuntak (Defendant II) and Dr. Hendy Siagian

(Defendant III) and Plaintiff of the Public Prosecutor.

At the Manado District Court Number 90 / PID.B /

2011 / PN.MDO dated September 22, 2011 the

complete amendments are as follows: 1. Declare

Defendant I Dr. Dewa Ayu Sasiary Prawani,

Defendant II Dr. Hendry Simanjuntak and Defendant

III dr. Hendy Siagian, was not proven legally and

convincingly guilty of committing a crime in the First

Primary and Subsidies indictment, Second Indictment

and Third Primary and Subsidiary’s indictment. The

primary indictment charged to the Defendants

violates Article 359 of the Criminal Code Jis Article

361 of the Criminal Code Jo article 55 paragraph (1)

to the Criminal Code which is a weighting article of

the article charged in the first subsidiary charge which

violates Article 359 of the Criminal Code Jo Article

55 paragraph (1 ) to the 1st Penal Code of Jis, the

acquittal of the defendants from the first primary

indictment is violating Article 359 of the Criminal

Code. Article 361 of the Criminal Code Jo Article 55

paragraph (1) to the Criminal Code, then the

Defendants must also be released from the first

subsidiary charges, namely violating Article 359 of

the Criminal Code Jo Article 55 paragraph (1) to the

Criminal Code. Release Defendant I, Defendant II

and Defendant III therefore of all charges, and

Recover the rights of the Defendants in their abilities,

position and dignity.

Furthermore, at the level of appeal at the Supreme

Court based on Decision Number 365 K / Pid / 2012,

stated that the Defendants were respectively Dr.

Dewa Ayu Sasiary Prawani (defendant I), dr. Hendry

Simanjuntak (defendant II) and dr. Hendy Siagian

(defendant III), was proven legally and convincingly,

was guilty of criminal acts as referred to in article 359

of the Criminal Code in conjunction with article 55

paragraph (1) of the 1st Criminal Code, sentenced the

defendants, respectively. Dewa Ayu Sasiary Prawani

(defendant I), dr. Hendry Simanjuntak (defendant II)

and dr. Hendy Siagian (defendant III), with

imprisonment for 10 (ten) months, with consideration

of the judge, namely:

 Judex Fact misappropriates the law, because it

does not properly consider juridically relevant

matters, namely based on the results of

medical records Number 041969 which has

been read by expert witnesses dr. Erwin

Gidion Kristanto that when the victim entered

the General Hospital (General Hospital) Prof.

R. D. Kandou Manado, the general condition

of the victim is weak and the victim's status is

severe;

 The Defendants before carrying out the cito

section cesarean operation against the victim

were carried out, the defendants without

conveying to the victim's family the possibility

that could occur to the victim;

 The actions of the defendants carried out an

operation against the victim Siska Makatey

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which then occurred an air embolism that

entered the right ventricle of the heart which

prevented blood from entering the lungs and

then failed lung function and subsequently

resulted in heart failure;

 The actions of the defendants have a causal

relationship with the death of the victim Siska

Makatey according to the Certificate from the

General Hospital Prof. Dr. R. D. Kandou

Manado Number 61 / VER / IKF / FK / K / VI

/ 2010, dated April 26, 2010. Based on the

review returned to the Supreme Court in the

Judgment Review No. 79

PK / PID / 2013, dr. Ayu and friends were released

from the indictment. Decision of the judicial review

chaired by Mohammad Saleh and consisting of Prof.

Surya Jaya, Syarifuddin, Margono, Maruap Pasaribu.

However, this decision was not taken unanimously.

One member of the assembly, Prof. Surya Jaya, gave

a dissenting opinion. Ridwan cited the consideration

of the decision that the applicant reviewed again did

not violate the Standard Operating Procedure in

dealing with caesarian cito surgery. The Judicial

Review considers the judex factie (district court)

consideration to be correct and correct. "Ordering that

the convict be expelled from the correctional facility

and restore the good name of the convicts in the

verdict. The decision handed down against Dr. Ayu et

al, both the first level, appeal, and cassation were to

do negligence. The acts of the Defendants as

regulated and threatened with Article 76 of the

Republic of Indonesia Law Number 29 of 2004

concerning Medical Practices Jo. Article 55

paragraph (1) of the 1st Criminal Code, it is fulfilling

other inter-elements. The element of “person” is a

personal pronoun, which is usually used in each

formulation of the articles of a criminal act from the

relevant legislation or in other words can also be

interpreted as the subject of the offender. The offense

subject was Defendant I Dr. Dewa Ayu Sasiary

Prawani, defendant II dr. Hendry Simanjuntak and

defendant III dr. Hendry Siagian where the identity of

Defendant I, Defendant II and Defendant III.

2. The element “due to his/her error becomes caused

of the death of another person”

At the time before the cito section cesarean

operation against the victim was carried out the

defendants had never told the family about the worst

possibilities including death that could have occurred

to the victim if the cito section surgery was carried

out on the victim and the defendants as doctors who

carried out the cito surgery section sesaria on the

victim does not conduct investigations such as chest

photorontgen heart examination and other

investigations, etc. Hence, this is the negligence of

defendants.

In medical action carried out by Dr. Ayu there are

several things, namely:

 Julia was declared in an emergency at 6:30

p.m., even though it should have been declared

an emergency since she was hospitalized in the

morning.

 Some of the medical actions of Ayu and her

colleagues were not included in the medical

record.

 Ayu did not know the infusion and the type of

infusion drug given to the victim.

 Although Ayu assigned Hendy to inform the

patient and his family of the action plan,

Hendy did not do it. He instead handed over

the approval sheet of the action that Julia had

signed to Ayu, but it turned out that the

signature on it was fake.

 There is no good coordination in Ayu's team

when taking medical action.

 There is no preparation if the victim suddenly

experiences an emergency.

Some of the court decisions above are related to

informed consent which has implications for medical

malpractice on medical action, in patient relations and

doctors / health personnel. The position of the patient

in a condition that is very weak, helpless, and does

not get legal protection, specifically the Health Act,

the Law on Health Workers, the Medical Practice

Law, and the Law on Hospitals, clearly places the

patient in the object that needs care, so there is no

legal gap to claim their rights, related to procedural

errors, permanent disability and disability, even death

due to medical action. Here, the informed consent that

is the basis for approval in medical action has been

ignored.

Sanctions contained in the legislation in the health

sector itself do not appear to be strict, because the

judge refers more to the provisions in the Criminal

Code article on negligence. Judges should be able to

refer to the informed consent arrangement in the

Minister of Health Regulation No. 290 / MENKES /

PER / III / 2008 concerning Approval of Medical

Actions, even though this regulation is the

implementation of Article 45 of the Medical Practice

law. All parties involved in the allegation of medical

malpractice always ignore the provisions in this

article.

However, in the Judicial Review of the Supreme

Court of the Republic of Indonesia Number: 76 PK /

Pid / 2013, on behalf of defendants Dewa Ayu Sasiary

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Prawani, Hendry Simanjuntak and Hendy Siagian,

the Supreme Court declared and ruled that the

convicted were not proven legally and convincingly

guilty committing a criminal act that is charged,

therefore the panel of judges at the Judicial level

cancels the Supreme Court Decision Number: 365 K

/ Pid / 2012 dated 18 September 2012 which cancels

the Manado District Court Decision Number: 90 /

Pid.B / 2011 / PN.MDO.

The above case shows that aspects of informed

consent are ignored by doctors. This can be proven in

the form of the signature of the victim in the special

action approval letter and the surgical and anesthetic

approval submitted by Dr. Hendy Siagian to be signed

by the victim is different from the signature of the

victim who is in the Identity Card (KTP) and the

Askes Card. Then after being examined by the

Makassar Branch Forensic Laboratory and based on

the results of the Criminal Laboratories examination

on June 9, 2010 NO. LAB: 509 / DTF / 2011 Criminal

Laboratory stated that the signature on behalf of Siska

Makatey aka Julia Fransiska Makatey on the

document was an autograph signature / "Spurious

Signature".

From this evidence, the aspect of informed

consent and the existence of therapeutic transactions

are the basis for a doctor to take medical action. With

the ignored aspects of informed consent and

terepeutik transactions, the criminal law teachings are

included in negligence on medical action. To be able

to get a doctor, a doctor who performs a medical

action without being preceded by the informed

consent aspect and the related transaction, the

authorized party must be able to prove it. Without the

aspect of informed consent in a medical action, it can

enter the element of error in accordance with Article

359 of the Criminal Code.

Juridically, the binding basis of the Regulation of

the Minister of Health No. 290 / MENKES / PER / III

/ 2008 for which there are no sanctions against

ignorance of informed consent is detrimental to the

patient. In medical action, patients and doctors /

health workers should be in a balanced position,

namely the legal relationship between patients and

doctors / health workers is contractual with each other

in the law. This must be understood in medical action,

so that actions that are suspected to be malpractice of

medicine to patients can be avoided. Keep in mind

that approval in medical action that contains high risk

must obtain written approval signed by the right of

consent. Whereas if a medical action that is not at risk

can be given with verbal consent. Essence of approval

from informed consent in medical action between

patient and doctor / health worker.

For this reason, informed consent by looking at

the facts of the court decision which is allegedly

malpractice conducted by medicine can be

minimized, by placing an informed consent

arrangement for everyone's rights (Kansil, 1991). By

placing informed consent as a right inherent in a

person, whether patient, doctor / health worker, a

balanced relationship pattern will be maintained,

parallel to each other. Appreciation of patient rights

by placing informed consent rights on patients' rights

that must be respected, respected, and given strict

sanctions if not done (Sudra & Pujihastuti, 2016).

This places informed consent on the pillar of the

essence of the recognition of the right to health for

everyone. There has been a fundamental change in the

informed consent perspective in the health sector as

part of the patient's rights that are protected, valued,

and safeguarded for the benefit of all, as well as

improving health status in Indonesia (Mulyo, 2006).

3.2 Model of Protection and

Fulfillment of Informed Consent in

Indonesia

Building a concept in the form of a law enforcement

model related to informed consent, the Decision

Number 46 K / Pdt / 2006 must first be elaborated.

The Siloam Gleneagles Hospital malpractice case on

circumcision without the consent of the patient. In

this case the Plaintiff is Abraham Lodewyk Phaseary,

residing in the Binong Permai Blok EE 11/13

Housing, Curug Tangerang, and the Defendant is

PT.Siloam Healthcare, cq. Siloam Gleneagles

Karawaci Hospital, having its address at Jalan Siloam

Number 6 Lippo Karawaci, Tangerang consisting of

dr. Rudi Hartanto, dr. Nanda Romli, dr. Rizal s.

Pohan. In consideration before total anesthesia is

carried out, the Plaintiff gives oral and written

approval by signing an informed consent letter

offered by the nurse only to undergo surgical removal

of the pen above the left ankle which will be carried

out by Defendant IV as a bone surgeon.

Before the total anesthesia was carried out, the

Plaintiff had never discussed, never requested, and

never gave oral or written approval for circumcise

surgery (circumcision surgery on the penis) against

the Plaintiff in Defendant I by Defendant II,

Defendant III, Defendant IV. Because the Plaintiff as

an Ambonese Protestant Christian has never had the

intention and plan to be circumcised by anyone,

anywhere and anytime.

After the Plaintiff gave oral and written approval

by signing the informed consent referred to in point 3

above, then Defendant III as the anesthetist carried

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out a total anesthesia of the Plaintiff, so that due to the

total anesthesia the Plaintiff lost consciousness and

did not remember anything else; Whereas when the

Plaintiff was unconscious and did not remember

anything due to the general anesthesia of item 5

above, in addition to the operation of pen extraction

in the ankles carried out by Defendant IV as a bone

surgeon, it turned out that Defendant II had carried

out invasive actions ( medical which can directly

affect the integrity of body tissue) illegally against the

Plaintiff, which is to perform circumcise surgery

(circumcision surgery on the penis) against the

Plaintiff's penis without giving an explanation to the

Plaintiff, and without written or oral approval from

the Plaintiff to the Defendants, both before and after

the circumcise operation, the Defendant II's action

was known and approved by Defendant I, Defendant

III and Defendant IV.

The act of circumcise operation without the

consent of the Plaintiff committed in Defendant I by

Defendant II which was known and approved by

Defendant I, Defendant III and Defendant IV has

been proven and recognized by Defendant I in Letter

Number 093 / RSSG / CS / XII / 98, dated 8

December 1998, which in essence Defendant I

acknowledged and apologized for having carried out

a circumcise surgery without the consent of the

Plaintiff; Whereas the actions of circumcise

operations without the approval of the

aforementioned Plaintiff have violated Article 2

paragraph (1), (2) and (3) of the Minister of Health

Regulation Rl Number 585 / Men.Kes / Per / IX /

1989 concerning Approval of Medical Measures. The

agreement based on Article 8 paragraph (1)

Regulation of the Minister of Health Rl Number 585

/ Men.Kes / Per / IX / 1989 must be given by adult

patients (Plaintiff) in a conscious and mentally

healthy condition. The act of circumcise surgery

without the approval of the Plaintiff also violated the

Code of Ethics of the Indonesian Hospital

(KODERSI) Article 2, Article 9, Article 10 and

Article 11, Chapter III of the Hospital Obligations

Against Patients.

In addition to the actions of circumcise operations

carried out illegally by the Defendants without the

consent of the Plaintiff, it turned out that Defendant I

was also not willing to provide a copy of the

Plaintiff's medical record requested by and be the

right of the Plaintiff based on Article 10 paragraph (2)

and Article 14 Minister of Health Regulation Rl

Number 749A / Men. Kes / Per / XII / 1989, regarding

medical records / medical records, where medical

records / medical records are required by the Plaintiff

in the interests of basic health maintenance and

treatment of the Plaintiff, as well as material for

verification in lawsuits.

Article 55 of Law Number 32 of 1992 concerning

Health regulates that: Every person has the right to

compensation due to errors or negligence committed

by health personnel Explanation of Article 55 of Law

Number 32 of 1992 concerning Health expressly and

clearly regulates that "The granting of rights to

compensation is a efforts to provide protection for

every person for a consequence, whether physical or

non-physical due to errors or negligence of health

personnel ". This protection is very important because

due to negligence or error it may cause death or cause

permanent disability.

He actions of the Defendants who have carried out

circumcise operations without the Plaintiff's approval

and are not willing to provide a copy of the Plaintiff's

medical/ medical record which is the right of the

Plaintiff, is an unlawful act as referred to in Article

1365 BW which has caused a very large loss to the

material good Plaintiff/ physical or immaterial/ non-

physical. The plaintiff in person and through the

previous attorney, has repeatedly asked for

accountability and demanded compensation, but there

was no response and there was no good faith from the

Defendants, to compensate the Plaintiff.

The Tangerang District Court has taken the

decision, namely Number 221 / PDT.G / 2004 /

PN.TNG. dated March 3, 2005, the arguments are as

follows: IN THE EXCEPTION, the Defendant's

Exception cannot be accepted; in the principal case

(1) Refusing the Plaintiff's claim for the whole; and

(2) To sentence the Plaintiff to pay court fees in the

amount of Rp. 514,000 (five hundred and fourteen

thousand rupiahs). Then in an attempt to appeal, the

Plaintiff's District Court verdict was confirmed by the

Banten High Court with the decision Number 54 / Pdt

/ 2005 / PT. Banten, dated September 1, 2005.

Subsequently based on a special power of attorney

dated March 16, 2005 an application for an appeal

was filed orally on October 26, 2005 as evident from

the cassation deed No. 221 / Pdt.G / 2004 / PN.TNG,

made by the Court Clerk Negeri Tangerang, an

application accompanied by a memorandum of

cassation containing the reasons received at the

Registrar's Office of the District Court on November

9, 2005.

It was seen that throughout the evidentiary event,

the Plaintiff did not prove the act of general

anesthesia or the failure of local anesthesia by

Defendant III against the Plaintiff, according to the

Panel the assessment of this case which became the

starting point of the problem was the verification of

the new anesthesia action then there would be a truth

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assessment whether or not the permit granted by the

Plaintiff to Defendant III. Based on the denial

evidence from the Defendant in fact the Plaintiff did

not succeed in proving his claim, in which case the

Defendant III did not carry out general anesthesia but

local anesthesia.

The Judex Facti does not at all consider the fact

that the Cassation Appellant during medical

treatment, when anesthetized by the Cassation

Defendant III or while in the operating room, is a

patient in a helpless condition who entrusts himself to

the Cassation Defendants in full. All parties other

than the Cassation Appellant at that time were only

Cassation Respondents and nurses working for the

Cassation I Respondent so that all information from

the Cassation Defendants and existing documents

were made unilaterally by the Cassation Defendants.

Whereas the legal fact that occurs is that the

Cassation Petitioner is unconscious, even before

entering the operating room, so that it is not possible

for the Cassation Appellant to know whether any of

the Cassation Defendants really explained that they

would carry out the circumcise action, let alone to

give consent to circumcise actions that will be carried

out by the Cassation Defendants; So it is very unfair

and impossible to prove Judex Facti's legal

considerations which essentially argue that the

Cassation Appellant must prove that the Cassation

Appellant has been totally sedated.

Instead it was the Cassation Defendants who were

supposed to prove that the Cassation Appellant in a

conscious and fully understood condition would be

carried out by the circumcise action. For this reason,

the Cassation Defendants should prove their

argument by providing a Medical Record / Medical

Record of the Cassation Applicant requested by and

become the right of the Cassation Appellant, thus

violating Article 10 paragraph (2) and Article 14 of

the Minister of Health Regulation Number 749A /

Men.Kes / Per / XII / 1989, concerning Medical

Records.

Decision of the Supreme Court on March 15,

1972, Number 549K / Sip / 1971, stated: "Based on

jurisprudence, the Judge is free to give the burden of

proof, more precisely if the evidence is charged to

those who are better able to prove it". This is in

accordance with the theory put forward by R. Subekti,

the Judge should be able to share the burden of proof,

in the last level emphasizing the consideration of

justice R Subekti, 2001). Instead it must be

maintained not to let the Judge order proof of

something negative.

If the Judge absolutely follows these rules, namely

that the one who argues is burdened with proof, then

the author believes that it will cause a burden of proof

that is biased for him. Thus in the end it will not reach

a good goal or outcome, because on one side it is told

to prove something negative” (Teguh Samudera,

1992).

The Civil Law Renewal states that the judge who

is aware of the meaning of his position will not forget

that in dividing the burden of proof, he must act

honestly and sportsmanship, will not impose on a

party to prove things that cannot be proven. So, it is

wrong and contrary to the law of Judex Facti

consideration which states that the Cassation

Appellant cannot prove the existence of an act of

general anesthesia against the Cassation Applicant

because the Cassation Defendants should prove

otherwise by submitting a medical record / medical

record of the Cassation Appellant, which the

Respondents did not Cassation. Likewise, regarding

the granting of permits to carry out circumcise actions

that have never been conducted by the Cassation

Appellant, so what happens after the Cassation

Appellant is sedated is beyond the knowledge and

awareness of the Cassation Appellant (Teguh

Samudra, 1992).

Judex Facti has been mistaken in applying the law

and violating the applicable legal rules (schending

van het recht) by making a consideration: "that the

Defendant I is not available to provide a medical

record / medical record copy to the Plaintiff in the

opinion that the Assembly is given or not given a

medical record copy also does not cause Defendant I

to exist or not to commit unlawful acts in connection

with the Plaintiff's objection to the medical

record/medical record's actions"; "Circumcise action

is a medical action while not giving a copy of a

medical record is an administrative action, therefore

the objection or problem is not an act that qualifies as

an unlawful act in the sense of civilization"; Judgment

of Judex Facti has violated the law because Article 10

paragraph (2) Regulation of the Minister of Health Rl

Number 749A/ Men.Kes /Per / XII /1989, regarding

medical records / medical records explicitly regulates

that: "Fill in the patient's medical record. Medical

records can be used as: a. Basic health care and

treatment of patients; b. Material of evidence in law

cases, c. Material for purposes research and education

and d) the basis for payment of health service fees,

materials for preparing health statistics.

It turned out that the Cassation Defendant I was

not willing to provide a copy of the medical record /

medical record of the Cassation Applicant requested

by and be the right of the Cassation Applicant based

on and Article 14. Therefore it is not excessive if the

Cassation Appellant argued that the Petitioners'

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Cassation filed to provide a medical record / medical

record is to conceal the actual facts considering that

the medical record contains all records and

documents which include, among other things,

examination, treatment, actions and other services to

the Cassation Appellant while receiving medical

services from the Cassation Defendants, who cannot

/ are prohibited to be deleted, as regulated Article 6 of

the Regulation of the Minister of Health No.

749A/Men.Kes/Per/XII/1989, as follows:

 Correction of error of note is made on the

wrong writing and given initial by the officer

concerned;

 Abolition of writing in any way is not

permissible "; Then the Judex Facti

considerations which state that a copy of a

medical record is an administrative action are

therefore erroneous because the objection or

problem is not an act that qualifies as an

unlawful act in the sense of civilization,

because it is clearly regulated in the above

provisions that medical records are documents

that are very important for the basic interests

of maintaining the health and treatment of the

Cassation Appellant, as well as for evidence in

legal proceedings.

Errors or omissions of the Cassation Defendants

are strictly a violation of the law, namely:

 The previous Cassation Appellant had never

received an explanation, information from the

Cassation Defendants regarding circumcise

actions violating Article 2 paragraph (3) and

(4) Regulation of the Minister of Health Rl

Number 585 / Men.Kes / Per / IX / 1989

concerning Medical Agreements;

 The Cassation Appellant never gives consent

or permission in any form, to anyone to be

carried out circumcise action against the

Cassation Applicant violating Article 2

paragraph (1) and (2) Regulation of the

Minister of Health Rl Number 585 / Men.Kes

/ Per/ IX/1989 concerning Approval Medical;

 Until the Cassation Appellant is injected with

drugs, the Cassation Appellant is never given

an explanation and also gives approval for

circumcise action, which has been

acknowledged by the Cassation Defendants. If

it is true that quod non, the arguments of the

Cassation Defendants that there has been an

explanation and approval of the Cassation

Appellant before the circumcise, explanation

and approval actions for circumcise actions

are given under conditions of anesthesia or

unconscious, violating Article 8 paragraph (1)

of the Regulation of the Minister of Health Rl

Number 585 /Men.Kes/Per/IX/1989

concerning Medical Agreements;

 Doctors who carry out surgical / surgical

medical procedures (Respondent Cassation II)

have never provided any explanation or

information, while it is stipulated that

information must be given by the doctor who

will perform the operation violates Article 6

paragraph (1) of the Regulation of the Minister

of Health of the Republic of Indonesia

Number 585 / Men .Kes / Per / IX / 1989

concerning Medical Agreements;

 The Cassation Defendant III knew that there

was no approval from the Cassation Appellant

but still allowed the Cassation Defendant II to

circulate the Cassation Applicant in violation

of Article 12 paragraph (1) of the Regulation

of the Minister of Health Rl Number 585 /

Men.Kes / Per / IX / 1989 concerning Medical

Agreements;

 The Cassation Defendant I is also not willing

to provide a copy of the medical record /

medical record of the Cassation Applicant

requested by and becomes the right of the

Cassation Appellant and can prove the

unlawful conduct of the circumcise act

without permission to violate Article 10

paragraph (2) and Article 14 of the Minister of

Health Regulation Number 749A / Men.Kes /

Per / XII / 1989, regarding medical records /

medical records.

Thus, it becomes clear and clear that the Court of

Appeal has been mistaken by taking over the

consideration of the District Court which violated the

law and therefore the appeal petition of the Cassation

Appellant on this matter was considered reasonable

enough to be granted. So that the decision of the

Banten High Court, dated September 1, 2005 Number

54/Pdt/2005/ PT. Banten and Tangerang District

Court Decision March 3, 2005 Number, 221/ PDT.G

/2004/PN.TNG. must be canceled.

Considering, that for these reasons the Supreme

Court is of the opinion, objections cannot be justified

because the High Court ruling that upholds the

District Court's ruling has been correct and correct,

that is not wrong in applying the law, objection

regarding an award-proof evaluation of an the fact

cannot be considered in the examination at the

cassation level, because the examination at the

cassation level only relates to not being implemented

Protection Model and Fulﬁllment of Patient Rights on the Implementation of Informed Consent in Indonesia

2091



or there is an error in the implementation of the law

(Rahardjo, 2003).

4 CONCLUSION

Informed consent is the main door of doctors /

medical personnel in carrying out their duties, so the

role of informed consent is very important. From

several cases it was found that the informed consent

influence was made the main basis by the judge in

assessing the causality of an act. Approval in medical

actions that contain high risks must obtain written

approval signed by the right of consent (P. R.

Indonesia, 2004). Whereas if a medical action that is

not at risk can be given with verbal consent. Essence

of approval from informed consent in medical action

between patient and doctor / health worker.

The model of protection and fulfillment of patient

rights at the level of law enforcement (the court) is to

apply the principle of inverse evidence to doctors /

medical personnel, because it is more effective and

open opportunities for patients to obtain justice. Keep

in mind that, the application of this principle must be

balanced, and not a negative thing (R. Indonesia,

2009).

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