Hospitals, Living Wills, and the Law...

This is a slightly edited version from what was posted here at hukumonline.com's English website.

The Bill on Hospitals was always destined to be. Simply, the regulatory framework for such an important and critical component of Indonesian life needed to be regulated in the form of a law. The deficiencies of the current regulatory regime in the modern era highlighted that there were insufficient provisions to govern matters such as malpractice, discrimination in the provisions of medical services, poor safety procedures, and even poorer procedures for patient complaints to be heard.

Perhaps if the hospital bill had been passed earlier in the year Prita Mulyasari would have had an avenue to complain about the service she received as a patient, rather than resorting to telling her friends about it, and then being sued for defamation.

It was clear that the government was keen to see the hospital bill passed before the end of the current parliamentary session.

The bill is pro-patient in many respects. The Health Minister, Siti Fadilah Supari, has gone to great lengths to highlight this fact. However, it is also important to note that the bill focuses on four key medical practices, namely: promotion, prevention, cure (treatment), and rehabilitation. The bill is comprehensive in that it also sets out specifications for hospitals with respect to buildings and facilities that must be provided to satisfy minimum standards. For example, hospitals must have an emergency room, operation theatre, radiology room, and a morgue, among others.

Hospitals can employ foreign staff. However, this is premised on need. Generally, it is expected that Indonesian hospitals will utilize Indonesian expertise where the expertise exists. Foreign medical staff will need to prove that they are qualified and licensed in their country of origin. It is also expected that any foreign medical staff engaged will transfer their skills and knowledge to local doctors and staff.

The bill also sets out the types and classifications of hospitals. Public hospitals are to be classifies across four levels, A to D. Article 29 of the bill deals explicitly with the obligations incumbent upon hospitals. The idea that the bill is pro-patient finds support in this article. Hospitals are required to provide medical treatment to the level of their capabilities without discrimination.

Furthermore, all hospitals must provide services to those who are unable to pay or who are poor and cannot pay set rates for services. The services must be provided to the poor and unable to pay in emergency situations without a requirement to pay any upfront fees. It would seem that the days of emergency treatment only being rendered after a down payment is made have passed.

The bill also sets out the obligations and rights of patients. As was noted earlier this Charter of Rights for both the hospitals and the patients may have allowed Prita Mulyasari and Omni International Hospital to avoid the defamation litigation that they continue to find themselves in. Patients have a right to a second opinion, either from another hospital doctor where they are or to get another doctor from outside the hospital to provide that opinion.

Patients also have explicit rights to their complete medical records. Patients also have the right to sue hospitals either as a civil or as a criminal matter if they believe the services provided to them breach any of the prevailing laws ans regulations in this sector.

Hospital fees will be set out in a national fee document. It is expected that the fee pattern will provide guidelines for fees based on actual cost of the services provided. And, hospitals are required to set their fees at levels commensurate with what is stipulated in the fee pattern as determined by the Minister.

The bill also sets out a new independent body called the National Hospital Supervisory Agency to maintain and supervise hospitals. The Agency is set up by the Health Minister in order to guarantee any matters relating to hospitals. It has the function to not only maintain and supervise the rights and obligations of patients and hospitals, but also receive complaints, and to settle disputes.

However, it must be noted that the bill includes a provision in Article 44 for the hospital to breach doctor / patient privilege and confidentiality where the patient sues the hospital and then goes public with their claim. Any patient that goes public is to be deemed to have released the hospital and relevant doctors from any confidentiality obligations regarding a patient’s medical records.

Furthermore, Article 45(1) absolves a hospital and doctors from responsibility for a patient’s death in care if the patient or the patient’s family refuses treatment or medical care. However, the provision requires that the hospital explains the consequences of refusing any such treatment or care. This is the concept of a living will. A living will allows people to set out whether or not they want to be treated or resuscitated by medical staff and doctors.

There is currently an interesting case in the United Kingdom. Doctors refused to treat a suicidal woman who had a living will. The woman drank poison in order to kill herself. The woman was still conscious and called an ambulance. Medical staff and doctors refused to treat her because they believed that if they did treat her and save her life, then they could be sued for assault.

The Elucidation to this provision states that treatment and care cannot be stopped for financial reasons alone. If a patient or the patient’s family is no longer able to afford treatment or care, then the government will guarantee treatment and care.

Article 45(2) states that hospitals, and presumably doctors, cannot be sued or prosecuted for attempting to save the life of a person, if that person is to later die.

All current hospitals are given a two-year grace period to come into compliance with the provisions of the bill once it is enacted into law.

The bill comes into immediate force once it is enacted. Enactment requires the signature of the President. If the President fails to sign the bill into law then the bill will self-enact after 30 days pursuant to the 1945 Constitution.