Medical Risk Boundary Principle in Indonesian Health Law -By Dr. Bella Agatha Fernando

On a Dangerous Delusion: Indonesia is constructing a health law regime under the illusion than it can punish every adverse medical result without first defining where risk leaves off and malpractice begins. The outcome is a climate in which physicians walk on eggshells to avoid violating the law, patients exist in an ocean of ambiguity, and the state operates from behind broad standards it will not refine. The curtain comes off, with the proposed Medical Risk Boundary Principle (MRBP),  one that readers will see is long needed in Indonesia, where a brutally clear line must logically be drawn between acceptable medical risk and punishable medical wrongdoing.

In a practical perspective, under Indonesian law, for doctors to be legally protected they belatedly need to adhere to formal standards of professional practice, service standard, SOP and ethics. Section 273 and 274 of the 2023 Health Law guarantees legal protection if doctors practice based on these guidelines regardless of negative results occured. But the law never states what constitutes as “medical risk” or “medical negligence.” It implies the need for protection but stops short of defining where the line ought to be drawn. This omission is not a technical one, it is political. It allows police, prosecutors, judges and media  as well as the general public to adjust justice on a case by case basis at will.

The outcome is predictable. From blindness following a cosmetic procedure to death encountering emergency intubation, every grave complication becomes soil in which suspicion can flourish. In the Makassar case, a filler procedure in which blindness is an inherent risk even when the product was injected correctly: Dr. Elisabeth Susana was acquitted of negligence; prosecutors had insisted he “violated” SPO but court ruled that even proper injection carries this risk. The necessity to carve out this distinction in a court of law rather than having it codified in statute demonstrates the core weakness of Indonesian health law: that it is reactive, rather than proactive.

This is just the argument that MRBP takes a provocative stance: outcomes matter less than standards when it comes to liability. And it asserts that adverse consequences must be classified as medical risk and not legal crime, provided doctors follows professional norms of conduct, through SOPs and discipline standards along with informed consent. The law should only draw the line of liability when there are concrete violations, willful or grossly negligent. In essence MRBP throws aside that siren song of logic, the seductive and dangerous one”bad outcome equals fault.” It is not simply doctors trying to protect their profession; it is a call for Indonesian law to cease complicating tragedy with crime.

It also goes after a silent hypocrisy in our existing system. Professional bodies and the Majelis Disiplin Profesi (MDP) sit in judgment of whether conduct fell short of standards, even offering a recommendation as to whether or not a criminal investigation is warranted. However, the truth is that anytime media pressure or public outrage surges in the name of non-existent “healthcare” there are still criminal provisions like section 474 until 475 National Criminal Code (KUHP Nasional) on negligent injury and death contending over doctors’ heads like Sord Excalibur. MRBP fights such a double game: if the state wishes to enforce criminal law against physicians, it must first concede that a finding by MDP regarding whether they complied with standards is more than decorum; it determines the entrance into a world of criminalization.

More provocatively still, MRBP can demonstrate that the health law in Indonesia views hospitals as bureaucratic scenery rather than genuine legal actors at producing risk. Now in practice, bad outcomes often result from systemic deficiencies; something you will need to do research on: under-staffed offices/ departments, lack of appropriate equipment for workers, ridiculous SOPs, management driven by price. The 2023 Health Law already has laid the groundwork for corporate liability, by creating liability on hospitals who lose control over their agents. MRBPs really throw open the door to that possibility: If risk arises from institutional decisions, then liability should rest with the institution. It is not only unfair to blame the doctor alone; it is legally dishonest.

The principle also calls for a change in an informed consent. While current regulations acknowledge an element of consent and risk explanation, practice turns these into mere bureaucratic theatre: reams of dark print on paper, fast-moving cull and sign imprints preceding a cursory exploration. MRBP argues that consent must be based on risk classification to determine whether a minimal risk (that does not give rise to the need for full disclosure) or a more serious risk (that could reasonably affect a person’s decision). It also confronts an uncomfortable truth with which Indonesian medicine must grapple, informed by comparative law experience from the UK and Germany, that if not disclosing a risk is serious enough to alter the choice of a rational patient, then it is not practicing medicine but engaging in manipulation.

MRBP will not be viewed by critics as a creative means of evading responsibility, they say  rather it is a protection racket for the medical establishment. Actually it would have been the reverse. MRBP imposes explicit, codified differentiation between risk and negligence, limiting liability to clear deviation from standards and shifting a portion of the burden toward hospital corporate responsibility so that selective, emotionally driven punishment is supplanted with hard, testable criteria. The reason that it is brutal, of course, is precisely because it refuses to let either doctors or the state hide behind a veil of ambiguity.

Now, Indonesia’s health law is presented with a dilemma. It can remain in the grey zone, where on any given day spectacular crimes, political pressure, and institutional self-interest determine where the line is drawn. Or it can follow the Medical Risk Boundary Principle and formally accept that not every harm is blame, no every tragedy a crime and not every risk is one which should be taken on by the individual doctor standing alone in the operating theatre. Indonesian law would no longer simply respond to medical controversies, it would finally govern them.

Faculty of Law University 17 August 1945 Surabaya and Member of Law Firm Victorious Indonesia