CHAPTER III

CASE ANALYSIS AND DISCUSSION

A. Legal Arrangements on the Protection of Poor Patients

1. Case Position
The poor were again experienced discriminatory treatment to obtain medical
care from the Hospital. Tuesday February 23, 2010 in one area of Tangerang
Hospital, two compounded poor patients to get medical treatment.The names of the
patients was Aswanah and Asmiah, they are owners of the Community Health
Insurance (Assurance) and Certificate of Disadvantaged (SKTM) complained about
the poor service Tangerang District Hospital to the Ministry of Health officials. But
instead responded by Hospital, two people this would not also get action from the
Tangerang District Hospital. One senior researcher Indonesia Corruption Watch
(ICW) Febri Hendri responded "When the poor make the complaint on poor hospital
care, the manager blamed and treat patients in a discriminatory manner" he said in a
release received on Detik.com news info.
2. Analysis of The Case in Terms of Setting The Law on Protection of Poor
Patients
Referring to the above case, it appears that both patients were complicated by
economic status (poor) and the hospital does not provide health care to patients as
JAMKESMAS owner and the Certificate of Disadvantaged (SKTM), Though
medical care is the right of all patients regardless of economic status or racial
intolerance. In accordance with the Regulation of the Minister of Health No. 69
2014 Obligations and Liabilities Hospital Patients are (1) Obtaining the services
humane, fair, honest, and without discrimination; and (2) Obtaining quality health
services in accordance with professional standards and standard operating
procedures;
Seeing this, the Hospital should refer to the regulations for the field of health
care, patient’s rights is very important. The patient's right to be met with good
considering patient satisfaction become one barometer of the quality of services,
whereas patient dissatisfaction can be the base of the lawsuits. Based on the
dimensions of the health care quality patient expectations as consumers of medical
services include: (1) Provision of the service promised to promptly and
satisfactorily; (2) Assist and provide responsive service with no distinguishing
 SARA (ethnic, religious, racial and inter-group); (3) Guarantees of security, safety,
and comfort; and (4) Good communication and understanding the needs of the
patient.
Actually, the rights of patients is very important to discuss because the reality
shows that their ignorance hospital or health facility is about rights and obligations,
causing a tendency to ignore the rights of the patient so that the legal protection of
patients become increasingly faded. In addition there is generally a presumption
whereby a lower position than the position of the patient's doctor, so the doctor
thought to make their own decisions on the patient regarding what actions need to be
done in an attempt to cure the patient.
This assumption was wrong, if viewed from the perspective of agreement or
informed consent because of the relationship between doctor and patient arising under
the agreement of both parties to enter into an agreement in the medical world is called
the therapeutic agreement. Under the agreement therapeutic, standing between doctors
and patients is the same or equivalent. By law, the patient is considered as
independent legal subjects can make his own decisions for the benefit of himself.
Patients still able to make their own decisions with regard to their own interests even
in conditions of pain. Thus, while in a state hospital, legal position remains the same
as healthy people.
Patients are also entitled to take decisions to health care that will be performed
on it, because it is closely linked with fundamental rights as human beings. Unless it
can be proved that his mental state is not conducive to take the necessary decisions.
The above case is basically already included into the realm of criminal law,
according to the authors, a hospital patient is a consumer, so in general the patient is
protected by Act No. 8 of 1999 on Consumer Protection (Law No. 8/1999). According
to Article 4 of Law No. 8 of 1999, consumer rights are:
a. The right to comfort, security, and safety in consumption of goods and / or
services;
b. The right to choose the goods and / or services and obtain goods and / or services
in accordance with the exchange rate and conditions and guarantees promised;
c. The right to information is correct, clear, and honest about the condition and
guarantee of the goods and / or services;
d. The right to be heard opinions and complaints on the goods and / or services used;
e. The right to advocacy, protection and dispute resolution efforts should consumer
protection;
f. The right to receive guidance and consumer education;
g. The right to be treated or serviced properly and honestly and not discriminatory;
h. The right to compensation, restitution and / or compensation, if the goods and / or
services received are not in accordance with the agreement or not as it should be;
Law Number 29 Year 2004 on the Practice of Medicine also is legislation that
aims to provide protection for patients. Patients' rights stipulated in Article 52 of Law
No. 29 of 2004 are:
a. Getting a full description of the medical procedure referred to in Article 45
paragraph (3);
b. Ask the opinion of a doctor or other;
c. Getting services in accordance with medical needs;
d. Refused medical treatment;
e. Getting the contents of the medical record.
Protection of patients' rights are also mentioned in Article 32 of Law No. 44
Year 2009 on the Hospital, namely:
a. Obtaining information on the rules and regulations of the Hospital;
b. Obtain information about the rights and duties of patients;
c. Obtaining the services humane, fair, honest, and without discrimination;
d. Obtain quality health services in accordance with professional standards and
standard operating procedures;
e. Obtaining the services effectively and efficiently so that patients avoid physical
and material damages;
f. Filing complaints against the quality of service obtained;
g. A doctor and a nursing class in accordance with the wishes and regulations of the
Hospital;
h. Ask for a consultation about the disease to another physician who has a Permit
Practice (SIP) both inside and outside the hospital;
i. Get the privacy and confidentiality of the illness, including medical data;
j. Received information that includes diagnosis and procedures for medical
treatment, the purpose of medical treatment, alternative measures, risks and
possible complications, and prognosis of the actions taken and the approximate
cost of treatment;
 k. Approve or reject the actions to be carried out by health personnel against the
disease;
l. Accompanied by his family in a critical condition;
m. According to practice religion or belief espoused for it does not disturb the other
patients;
n. Obtaining security and her safety during hospitalization;
o. Submit proposals, suggestions, improvements to the treatment hospital against
her;
p. Rejecting spiritual guidance service that is incompatible with religion and belief
espoused;
q. Sued and / or require hospital when the hospital suspected of providing services
that are not in accordance with the standards either civil or criminal; and
r. Complained Hospital services are not in accordance with service standards
through print and electronic media in accordance with the provisions of laws and
regulations.
The existence of discriminatory treatment in the provision of health services
and discriminate against the poor and complicate the service is a form of human rights
violations. As explained by the author of the above it can be concluded that health is a
basic human need, regardless of a person's health will not be able to acquire his rights
of others. Someone who is not healthy by itself will diminish her right to life, can not
be obtained and undergo a proper job, could not enjoy the right to association and
assembly and expression .. As in the cases of discrimination of patients above, as a
result of their neglect and complicated the ministry of Hospital to poor patient results
in loss of the right to life, in addition, The act also violated Article 5, paragraph (2) of
Law No. 36 Year 2009 on Health explained that everyone has equal rights in
obtaining health services safe, quality, and affordable. In Article 58 paragraph (1) of
Law No. 36 of 2009 on Health states that everyone is entitled to claim damages
against a person, health personnel, and / or the provider to incur losses due to errors or
omissions in the health service received.
3. Alternative Dispute Resolution
Disputes that occur between health workers to patients is a problem arising
from the relationship in order to perform the recovery efforts which caused
dissatisfaction of patients is generally caused by the alleged error or negligence in
implementing the obligations of professional duty, this happens because of the lack of
 information that should be the right and obligations of both. Thus the chances of
alternative dispute resolution is necessary a measurable problem solving and
credibility are able to accommodate the dispute in health care while maintaining or
consensus agreement that is beneficial to both parties.
Efforts settlement of civil disputes can be done outside the State court
through arbitration or alternative dispute resolution in accordance mentioned in
Article 58 of Law No. 48 Year 2009 concerning Judicial Authority. Mediation is
better known as alternative dispute solution (ADS). Alternative dispute resolution is
one of the solutions to solve the problems in the health care law to the exclusion of
domestic court litigation settlement. According to Law No. 30 of 1999 concerning
Arbitration and Alternative Dispute Resolution is done through a procedure agreed by
the parties that settlement out of court by way of consultation, negotiation, mediation
and expert judgment.

B. Implementation Of Service Poor Patients Based Legislation Provisions

1. Case Analysis in terms of the Implementation of the Provisions Under the Poor
Patient Services Legislation
Healthy living is one of human rights. According to Article 28A of the 1945
Constitution and Article 9 paragraph (1) of the Law of Human Rights, everyone has
the right to live and to defend life and livelihood. Another article concerning the rights
of a person to live a healthy life is Article 28H paragraph (1) of the 1945 Constitution
which reads: "Everyone has the right to live physical and spiritual prosperity, reside
and obtain a good living environment and healthy and receive medical care."
In accordance with the Regulation of the Minister of Health of the Republic of
Indonesia Number 4 Year 2018 regarding Obligations and Responsibilities Patient
Hospital paragraph 1e of Article 2 states that "Every hospital has an
obligationproviding tools and services for poor people or poor. "Health services
according to Law No. 36 of 2009 that in providing better health services that
individuals and society is guaranteed in Law Number 36 Year 2009 on Health in some
article very clearly affirmed that in order to ensure public health, the government
sought health services to the community in an effort to achieve a healthy Indonesia.
Health services provided by the government whether it be the provision of health care
facilities, the provision of drugs, as well as the health service itself.
 Health care facilities provided by the government in an effort to ensure public
health. HCF according to the type of service consists of individual health care and
public health services. Individual health care is carried out by a doctor's office or
health workers helped by both local government and private sectors. In the individual
health care must still obtain permission from the government in accordance with Law
No. 36 Year 2009 on Health, as referred to in Article 30 paragraph (1), (2) and (3),
namely:
a. Article 30 paragraph (1): Health Care Facility, according to the type of service
consists of individual health care and public health services.
b. Article 30 paragraph (2): Health service facilities referred to in paragraph (1)
covers the first level of health care, health care second level and third level health
services.
c. Article 30 paragraph (3): Health service facilities referred to in paragraph (1)
shall be implemented by the government, local governments and the private
sector.
Health service facilities required, providing wide access to the needs of
research and development in the field of health, as the case of health care facilities
will provide health services to save the lives of patients and the prevention of
disability in advance, in case of emergency health care facilities, both private and
government is obliged to serve patients regardless of who the patient is. It is written in
the law that prohibits for anyone involved in the give away the nature of health care in
an emergency patient to refuse a patient or ask for an advance as a guarantee.
In 2011, published Law No. 24 of 2011 on the Social Security Agency, and
one of them is the Social Security Agency (BPJS) Health, as stated in Article 5 (1), a
legal entity of public (Article 7, paragraph 1 ) and serves as the organizer of the health
insurance program (Article 6, paragraph 1 and Article 9, paragraph 1).
Institutionally BPJS directly responsible to the President. This is a form of
transformation of PT. Askes, and efforts to improve health services to the entire
population. Due to the birth of the Act as stated in Article 14, states that membership
is mandatory for all Indonesian citizens and foreign nationals who have worked at
least six months in Indonesia. Thus, there is no longer any reason to refuse to be part
of the health BPJS.
Because the real health BPJS implement the kinds of cross-subsidies in
practice, because if we look further be seen that the fund participants who are not (yet)
sick, used first for those in need and does not eliminate our right as members BPJS. In
this condition, indirectly, our social function as social beings have dilaksakan by
BPJS without our intervention as a member.
And in executing his responsibilities as mandated by law, the responsibility of
Health BPJS quite heavy, in addition to social responsibility has become a major
spirits, BPJS have to run some other tasks, so that continuity and professionalism will
be maintained, including:
a. Perform and / or receiving Participant registration;
b. Levy and collect dues from participants and the Employer;
c. Receiving Aid Contribution from the Government;
d. Managing the Social Security Fund on behalf of Participants;
e. Participants collect and manage the Social Security program, Paying Benefits and
/ or pay for health services in accordance with the provisions of the Social
Security program;
f. Provide information regarding the conduct of the Social Security program to the
participants and the public.
However, does not mean that the entire cost of the treatment will be covered
by BPJS Health, there are limits that are not covered and should be a serious concern
of participants BPJS Health, is intended to avoid blaming each other between the
participants and the organizers. Based on Presidential Decree No. 111 of 2013 Article
25 (a) (b) (c) (d), it says that health care is not guaranteed / borne BPJS, are:
a. Health services are performed without going through the procedures as stipulated
in the regulations;
b. Health services are performed in health facilities that do not cooperate with BPJS,
except in emergencies;
c. Health services have been guaranteed by the program of work injury insurance
against illness or injury due to accidents or employment relationship;
d. Health Services secured by traffic accidents program mandatory until value is
borne by the traffic accident insurance program.
There are restrictions in the service of the Jamkesmas program based on the
Ministry of Health No. 125 / Menkes / SK / II / 2008 as a cost containment eye
glasses, hearing aids, canes / walkers for those who are paralyzed, in addition to the
program jamkesmas does not cover the field promotive and preventive services as
well as there are restrictions in the field of curative and rehabilitative services. Based
 on the analysis of the relationship between the criteria of an ideal health efforts based
Health Law No. 36 of 2009 Section 47 and the contents of the program
JAMKESMAS then cause the violation of the rights of poor people to live a healthy
life.
The hospital has become a societal expectations for medical care. Basically, in
an emergency, health care facilities both public and private, are required to provide
health services to save the lives of patients and the prevention of disability first.
Health care facilities, both public and private are prohibited from rejecting the patient
and / or ask for money upfront. This is confirmed in Article 32 of Law No. 36 Year
2009 on Health. This means the hospital as one of the health care facilities are
prohibited from rejecting patients in emergency situations and are obliged to provide
services to save the lives of patients.
2. Judging from the Discipline Case Analysis and Legal Violations
The above case is a violation of Human Rights (HAM) as incompatible with
Article 28H paragraph (1) of the 1945 Constitution attitude towards Aswanah and
Asmiah Hospital is a human rights violation because it is contrary to Article 62 of
Law No. 39 of 1999 on Human Rights which states that: "Every child has the right to
obtain medical care and social security as appropriate, in accordance with the physical
and mental spiritual needs".
BPJS Health is a Health Security Agency which there are the JAMKESMAS,
Askes, and other Government Health Insurance merged together into the National
Health Insurance. The discriminatory treatment has been violated human rights which
every person has the right to live and to defend life and livelihood.
3. Judging from the Ethics Case Analysis
Case Aswanah and Asmiah not in accordance with the Regulation of the
Minister of Health No. 4 of 2018 on Liability RS and Obligations of Patients, Article
2 (b) and (e) of the obligations of RS include: provide health care that is safe, quality,
anti-discrimination and effective with the interests patients according to standard
hospital care; providing tools and services for poor people or poor.
Hospitals are also obliged to provide correct information about Hospital
services to the public. Poor people can lose the right to health care caused by certain
elements who do not want to lose because of concerns about the cost of health care
can not be paid or incurred losses because too little is paid by the insurer / guarantor.
 Everyone has equal rights in obtaining access to health services that are safe,
quality and affordable. To protect the rights of every citizen to get health services,
especially the poor, the Government has allocated a budget for the health of the State
Budget (APBN) and Regional Budget (APBD). The funding allocation should be used
for the benefit of public services (health care) that is expected to remain humane
health care to the poor because they are also entitled to health services. In Act No. 44
Year 2009 Article 6 states that the Government and local government is responsible
for guaranteeing the financing of health care in the hospital for the poor or people can
not afford.
In addition, the legal protection of people's rights to health care the same,
safe, quality and affordable has been regulated in Law No. 44 Year 2009 on Hospitals,
Law Number 36 Year 2014 on Health Manpower and Ministry of Health Regulations
No. 4 of 2018 Duties and Obligations of Patients RS. Limit the authority and
responsibility of ethics, health workers in hospitals must be in accordance with the
standards of the profession, as any medical treatment that do have a legal relationship
between hospitals, physicians, and patients. Patients are also entitled to safety,
security, and comfort to the health services received. With these rights, the patient will
be protected from the practice of the profession that threaten the safety or health.
4. Solutions
For guidance and supervision of health services in health facilities / Faskes
(Hospital) Ministry of Health and the Department of Health as an arm of the Ministry
of Health in the region should play an active role and provide a rebuke to the Hospital
violated. BPJS as a public legal entity which guarantees health care for participants
JKN-BPJS also entitled to give warning to hospitals that cooperate, which provides
health services that do not comply with the agreement, ie services that are not
qualified and their cost sharing / surcharge on service which is in accordance with the
rights of participants.

Reference
Constitution of the Republic of Indonesia Year 1945
Law Number 44 Year 2009 About Hospital
Law Number 36 Year 2009 on Health
Law No. 8 of 2009 on Consumer Protection
Regulation of the Minister of Health of the Republic of Indonesia Number 28 Year 2014 on
Guidelines for Implementation of Health Insurance Program
Regulation of the Minister of Health of the Republic of Indonesia Number 4 Year 2018
Obligations and Liabilities Hospital Patients