Legal Literacy - In an agreement, there is a legal relationship between one party and another to agree to carry out something or not to carry out something. Without the word "agreement", the agreement cannot be said to be valid. One of the agreements known in the health sector is a therapeutic agreement which generally has characteristics that are different from agreements in general.
Understanding Therapeutic Agreements
In the Civil Code Civil Law (KUHper), a therapeutic agreement is categorized as an agreement to perform services as regulated in Article 1601 of the Civil Code. A therapeutic agreement is an agreement made between a doctor and a patient, with the aim of giving the doctor the authority to carry out health efforts to the patient based on the expertise of the doctor concerned.
It can be said that in a therapeutic agreement, the patient entrusts himself, who is ill and requires healing efforts, to a doctor who has experience and knowledge about the patient's illness. Because of this relationship of trust, both the doctor and the patient must be honest and detailed in providing information, unless information from the doctor will only have a negative impact on the patient's health. Healthcare efforts in a therapeutic agreement can be carried out through preventive (prevention), promotive (improvement), curative (healing) and rehabilitative efforts.
The Position of Doctors and Patients in Therapeutic Agreements
In essence, the position of both parties between the doctor and the patient in a therapeutic agreement is not balanced. Because the doctor has adequate understanding and experience about the patient's illness and how to treat it, while the patient who comes to the doctor generally does not recognize the illness he is suffering from and is in an unhealthy condition, this places the patient in a weak position.
Considering his weak position, it is appropriate that the doctor is obliged to do his best for the patient. In a therapeutic agreement, the patient has the right to determine for himself what should be treated on him (right of self determination), while the doctor must do his best for the patient. This is a consequence of the patient's right to health services. A therapeutic agreement gives rise to an engagement called ispanningverbintenis, which is an engagement whose performance is a healing effort, not necessarily a cure.
If the patient is still not cured after receiving healing efforts from the doctor, the patient cannot immediately demand compensation from the doctor. The patient is permitted to claim compensation if the doctor in the healing process does not make the best efforts in health services or acts outside the standards of the medical profession.
Conditions for the Validity of Therapeutic Agreements
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 fulfill the legal requirements of an agreement in general as stated in article 1320 of the Indonesian Civil Code, 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 take certain medical actions, after the patient receives information about the diagnosis of his illness and what medical actions are for the effort to cure his illness;
- The parties must be capable of performing legal acts. According to the Civil Code, a person is considered legally capable if they are 21 years old or married before the age of 21 and not under guardianship. However, in therapeutic agreements, there are also specific rules governing "capacity," as outlined in the Regulation of the Minister of Health No. 290/2008 concerning Approval of Medical Actions. Article 1, point 7, explains that those who can give consent to medical actions are competent patients. Competent in this context means a patient who is an adult or not a child according to applicable laws or has been/is married, whose physical consciousness is not impaired, can communicate reasonably, and does not suffer from mental illness.
- There is a specific object, in this case, healthcare services or efforts to heal the patient and fees for the doctor's services.
- There is a lawful causa or reason, meaning 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 such an 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.
Provision of Doctor Information in Therapeutic Agreements
When a patient comes to a doctor and explains their illness, the doctor will then convey their intentions, which include a diagnosis of the patient's illness and medical actions. The doctor is fundamentally obligated to provide information, whether requested or not, regarding medical actions that may need to be taken for the patient's illness, honestly and completely, especially those involving high risks, unless the doctor assesses that the information provided could harm the patient's health interests or the patient refuses to be given information (therapeutic exception).
In reality, it is not easy to assess whether certain information is deemed detrimental to the patient's health interests because it depends on many factors, especially the patient's level of education. This is what often causes disputes in therapeutic agreements. To avoid claims based on the doctor not providing information to the patient, the doctor must be able to provide proof that the harm caused if the information is given would be greater than if the information is not given.
If the doctor requires operative action on the patient, this information must be given by the doctor performing the operation itself, whereas in the case of non-operative action, the information may be given by another doctor or nurse under the direction of the responsible doctor. The doctor's obligation to provide information to the patient arises as the patient's right to healthcare services. The information provided by the doctor becomes the patient's right to give appropriate consent to medical action.
Doctor Information to Patients Regarding Medical Actions
The doctor's information to the patient regarding the 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;
- The risks that may occur to the patient;
- Possible alternative medical actions;
- Prognosis of the disease if medical action is not taken.
In the event of a dispute regarding whether information has been provided or not to the patient regarding medical action, the burden of proof lies with the doctor.
Information does not need to be conveyed if:
- The patient is under 21 years of age (not yet legally competent) or has memory impairment;
- There is a conflict of interest on the part of the doctor;
- The patient refuses to be given information in writing;
- The doctor assesses that the information will be detrimental to the patient.
The legal consequence if the patient is not given information regarding medical action by the doctor is that the patient can demand termination of the therapeutic agreement with or without compensation.
Source
- Mertokusumo, Sudikno. 2019. Perkembangan Hukum Perdata Di Indonesia. Genta Publishing: Yogyakarta
- Civil Code
- Regulation of the Minister of Health No. 290/MENKES/PER/III/2008 concerning approval of Medical Actions
Comments (0)
Write a comment