ABSTRACT
Law and healthcare are different sciences. But due to the frequent cases that occur related to the practice of medicine, the law contributes by providing solutions for both physicians and patients as consumers of health, although medicine has a code of professional ethics as well as standard operations as a basis for doctors in carrying out their work. Legal tools are still needed because in practice there are many medical malpractices. This study focuses on two important things: first, how judges assess express consent in the implementation of informed consent, and second, 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, because it is based on health law and the health minister’s regulation as the main benchmark in analysis, and then integrated with court decisions relating to medical practices that have occurred in Indonesia.
The results of the discussion illustrate that the main point for doctors and health workers in carrying out their duties is the implementation of concrete agreements, both written and oral. Empirical facts show that doctors often do not carry out this procedure because the patient is unconscious during a medical action. The judex facti consideration is entirely based on information and documents made unilaterally by doctors without medical records; this is in violation of the provisions of Article 2 Paragraphs 3 and 4 of the Regulation of the Minister of Health Rl No. 585/Men. Kes/Per/IX/1989 concerning Medical Approval. In addition, 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, because the medical profession is able to explain. 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 by referring to Article 359 of the Criminal Code, is negligence also called error, lack of caution.
