Vol. 5, No. 5, May 2024

E-ISSN: 2723-6692

P-ISSN: 2723-6595

http://jiss.publikasiindonesia.id/

Journal of Indonesian Social Sciences, Vol. 5, No. 5, May 2024 1150

Legal Protection of Health Workers on the Installation of

Mechanical Ventilation of Covid-19 Patients in Hospitals

Suwito, Puguh Aji Hari Setiawan, Gradios Nyoman Tio Rae

Universitas Bung Karno, Jakarta, Indonesia

Email: suwito_enk@yahoo.co.id

Correspondence: suwito_enk@yahoo.co.id

KEYWORDS

ABSTRACT

Legal Protection;

Health Personnel; Covid-19

Corona Virus Disease-2019 (Covid-19) is a disease that causes an epidemic

with a high number of deaths and morbidity in Indonesia. Covid-19

sufferers often experience respiratory failure, so they need to receive

mechanical ventilation assistance. This research aims to find out the rules

for legal protection for health workers in the act of installing mechanical

ventilation for Covid-19 patients in hospitals and to find out the

implementation of legal protection. This type of research is normative

juridical based on a legal approach. Data collection is based on literature

study, taken from legislation, research results and literature books. The

results of the research found that the provision of health services was

carried out responsibly, safely, of good quality and evenly and non-

discriminatory. The position faced by medical personnel or health workers

is sometimes problematic because installing mechanical ventilators for

Covid-19 patients from a criminal law perspective is a mistake if it is done

outside of their authority, even though the medical personnel or health

workers are dealing with the function and task of carrying out actions. for

patient safety which is of course tied to the Hippocratic Oath as an ethical

and moral basis. The suggestion in this research is that the government

must provide legal protection to medical personnel whose rights are not

fulfilled by policy organizers, even though their obligations have been

fulfilled by health personnel.

Attribution-ShareAlike 4.0 International (CC BY-SA 4.0)

1. Introduction

Severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) which is the seventh

coronavirus found in Wuhan of China's Hubei province spread worldwide, and as of May 20, 2020 has

infected 4,806,299 people and caused 318,599 deaths (Ciotti et al., 2020). Severe acute respiratory

syndrome coronavirus 2 (SARS-CoV-2) was officially named Coronavirus Disease-2019 (Covid-19) by

the World Health Organization (WHO) on February 11, 2020 (Wu et al., 2020). Covid-19 transmitted

through droplets has broad clinical manifestations, ranging from asymptomatic, acute respiratory

diseases, respiratory failure that requires support in the Intensive Care Unit (ICU), to multiple organ

dysfunction syndrome (Multiple Organs Disfunction) Syndrome/MODS). 81% of patients had a CFR

of 2.3%, 5% of patients had respiratory failure, septic shock and MODS resulting in a CFR of 50%.

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Some patients have symptoms of happy hypoxia, a condition in which the patient's oxygen saturation

is low (SpO2 < 90%), but do not experience significant respiratory distress and usually have good

clinical symptoms. The results showed that 9%-11% of Covid-19 patients required support in the ICU

with a CFR of 26%, and only 16% were discharged from the ICU. Of the patients admitted to the ICU,

99% required breathing assistance, including 88% required mechanical ventilation and 11% received

noninvasive ventilation (Widysanto et al., 2020).

The severity of Covid-19 is related to age and underlying comorbidities (hypertension, DM,

cardiovascular disease, etc.). The final cause of death in Covid-19 patients is likely to be due to acute

respiratory distress syndrome (ARDS). Respiratory failure is the main cause, which was also the cause

of death in the previous pandemic, the Spanish flu of 1918 (Vincent & Taccone, 2020).

People of any age, whether with or without prior immunity, can progress to a critical stage of

ARDS. The Berlin criteria define ARDS with acute hypoxemia respiratory failure after an acute

infection such as a respiratory viral infection, which appears as an X-ray image of bilateral lung

infiltrates in the absence of cardiogenic and hydrostatic causes. A cohort study reported as many as

85% of ICU patients with Covid-19 met the definition of ARDS according to Berlin criteria and by

providing an established supportive intervention for ARDS, resulted in significant improvements in

oxygenation and lung capacity(Huang et al., 2020; Torres Acosta & Singer, 2020; Vincent & Taccone,

2020). Coronavirus Disease-2019 (Covid-19) with ARDS shows different clinical manifestations from

other ARDS patients, where symptoms of lack of oxygen (hypoxia) are more prominent and in some

studies it appears that the use of mechanical ventilation is 2 times longer in Covid-19 patients than

other ARDS patients (Wicky et al., 2021).

The results showed that after Covid-19 patients were hospitalized, some patients developed

into MODS especially elderly men who were often associated with underlying diseases such as

hypertension, heart disease and other diseases at the same time. During laboratory examination, the

patient showed abnormalities in inflammatory indicators, electrolytes and D-Dimers, low absolute

values of lymphocyte counts, elevated troponin T and low oxygenation index are risk factors for

multiorgan failure that make patients need treatment in the ICU (Cui et al., 2021).

A patient with ARDS can be treated with mechanical ventilation, which aims to provide oxygen

to the patient during the disease. Proper oxygen delivery is needed in critical conditions such as

Covid19 which if it is at the ARDS stage it will risk causing death, so this mechanical ventilation is

needed. When a patient requires mechanical ventilation and is not available, the patient's life can be

at risk (King et al., 2020). Corona virus Disease-2019 (Covid-19) with ARDS shows different clinical

manifestations from other ARDS patients, where symptoms of lack of oxygen (hypoxia) are more

prominent and in some studies it appears that the use of mechanical ventilation is 2 times longer in

Covid-19 patients than other ARDS patients (Wicky et al., 2021).

The need for mechanical ventilation is increasing in hospitals and ICU rooms worldwide as a

result of the increase in Covid-19 cases with ARDS, but unfortunately, there is not enough ventilation

available in hospitals. A report from Imperial College London estimates 30% of patients are

hospitalized with Covid-19 and require mechanical ventilation. In a recently published study, Yang et

al. described their experience in Wuhan China of Covid-19 patients admitted to the ICU, where 56%

of them required non-invasive ventilation upon hospital admission and of those patients, 76%

required invasive ventilation (Iyengar et al., 2020).

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On March 2, 2020, the first case of Covid-19 in Jakarta was announced by the Government of

Indonesia. The government through the Ministry of Health has made efforts to optimize 100 referral

hospitals stipulated in the Decree of the Minister of Health number 414 of 2007 concerning the

Determination of Avian Influenza Prevention Referral Hospitals. Furthermore, the government re-

established 132 referral hospitals through the Decree of the Minister of Health number 169 of 2020

concerning the Determination of Referral Hospitals for the Management of Certain Emerging

Infectious Diseases (Kementerian Kesehatan RI, 2020).

With an increase in the number of confirmed cases of Covid-19, the Ministry of Health of the

Republic of Indonesia issued Circular Letter number HK 02.01/Menkes/11/2021 concerning

Increasing the Capacity of Covid-19 Patient Care at Covid-19 Service Provider Hospitals. The number

of hospitals in Indonesia is 2,979, with the number of beds prepared for Covid-19 patients totaling

81,032 used for isolation rooms and ICU rooms.

Health laborers are the cutting edge who treat Covid-19 patients each day with a really tall

chance of transmission of the infection. Lawful assurance for wellbeing laborers is frequently

overlooked, as in case individuals are unconcerned and contend that it is as of now a obligation, and

duty as therapeutic staff. And in case we look closely at the flare-up, to supply security, the state has

issued a approach in Article 1 letter a of Law Number 4 of 1984 concerning Flare-ups of Irresistible

Infections. Moreover, Article 9 passage (1) has moreover explicitly stipulated that certain officers who

carry out episode control endeavors as alluded to in Article 5 can be remunerated for the dangers

borne in carrying out their obligations. Article 9 of the Irresistible Infection Episode Law is without a

doubt reasonable and commensurate with the risks confronted by wellbeing laborers.

Legitimate security for wellbeing laborers can moreover be given through criminal

arraignment to individuals who are still jumbled to execute conventions for taking care of irresistible

malady episodes that have an affect on the transmission of wellbeing specialists or indeed result

within the passing of wellbeing laborers and other individuals who are uncovered. The jumbled usage

of standard wellbeing conventions for dealing with Covid-19 can be said to meet the components of

purposely discouraging the usage of dealing with the Covid-19 infectious illness flare-up. Typically

expressed in Article 14 of the Irresistible Malady Flare-up Law.

The emergence of relationships between patients and doctors and patients with community

health centers can be because patients are very urgent to get help. In this situation, the community

health center (puskesmas), especially doctors, directly conducts what is called zaakwaarmeming,

which is where a person voluntarily without getting an order to represent the affairs of others until

the person represented by his interests can solve his interests, in addition to the relationship between

doctors and patients, the role of puskesmas in implementing legal protection for patients is also very

necessary.

In the developing medical world, the role of puskesmas is very important in supporting public

health. The progress or retreat of the puskesmas will be determined by the success of those who work

at the puskesmas, in this case doctors, nurses and people who are in the place. The puskesmas is

expected to be able to understand the recipients of health services as a whole and be able to

implement protection for patients. In health services, puskesmas must also pay attention to the

professional ethics of health workers who work at the puskesmas concerned. However, professionals

who work in puskesmas in giving decisions professionally are independent. The decision must be

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based on awareness, responsibility and high morals in accordance with their respective professional

ethics. Health workers who are given full trust by patients, and who are employed at the puskesmas

must pay attention to the good and bad actions and always be careful in carrying out medical actions,

with the aim that protection of patients can be realized and from these medical actions do not rule

out the possibility of errors and omissions. Mistakes or negligence made by health workers in carrying

out their professional duties can have fatal consequences both on the body and soul of the patient and

are very detrimental to the patient.

The relationship between doctor and patient shows that the doctor has a dominant position,

while the patient only has a passive attitude. Such a position has historically lasted for many years,

where the doctor played a leading role, both because of the special knowledge and skills he possessed,

and because of the authority he brought because he was a small part of society that for many years

had a position as an authority in the health sector to provide medical assistance based on the full trust

of patients.

Patients as recipients of health services feel happy if they write a piece of paper to him. From

the prescription implicitly has shown recognition of the authority of the field of science possessed by

the doctor concerned. The authority of the field of science that arises and the complete trust of the

patient is due to the patient's ignorance of what he suffers, and what medicine is needed, and here

only the doctor knows, coupled with the closed and secret atmosphere that covers the doctor's

position guaranteed by the code of medical ethics. Such a position is getting stronger because coupled

with the factor of scarcity of health workers/doctors so that his position is a monopoly for him in

providing health maintenance services so that patient protection is guaranteed. Moreover, because

the nature of this health service is a psychological party that binds each other and is not equal.

From the description stated above, the issue of legal protection for patients contains very

complex and interesting problems to be researched and encourages the author to examine more

deeply about legal protection for patients who grow and develop in the medical world, especially in

the context of health services. Based on the above, researchers encourage researchers to conduct

research with the following title: "Legal Protection of Health Workers in the Installation of Mechanical

Ventilation of Covid-19 Patients in Hospitals”.

2. Materials and Methods

Types of Research

The type of research used in this study is normative juridical, namely legal research conducted

by examining library materials or skunder sources as a basis for research by conducting searches on

regulations and literature related to the problems studied with a statutory approach (stature

approach), and a decision approach. With this approach, researchers will get information from

various aspects about the issues raised, therefore the suggestions generated from the research must

be applicable or possible (Soejono & Mamudji, 2011).

Research Approach

The approach method used in writing this thesis is juridical sociological because in this study

in addition to using a legal science approach, it also seeks to apply other social sciences. This means

that in determining data is focused on the juridical aspect, while social science is used as an auxiliary.

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The normative juridical understanding is to approach legal principles and principles by reviewing

and viewing and analyzing existing problems. While the sociological understanding is to approach

directly to some people who occupy certain positions in accordance with the object of research.

Juridical sociological approach in addition to using legal principles in reviewing and seeing,

analyzing the problem, this study also conducts direct respondent approaches.

Sources of Legal Materials

Primary Legal Materials, primary book materials are legal materials that are directly related to

the problem, namely the legal protection of health workers in the act of installing mechanical

ventilation of COVID-19 patients in hospitals based on Law No. 39 of 1999 concerning Human Rights.

Secondary Legal Materials, secondary data are legal materials in the form of literature books:

Constitution of the Republic of Indonesia 1945, Law No. 39 of 1999 concerning Human Rights (HAM),

Law Number 36 of 2009 concerning Health, Law Number 44 of 2009 concerning Hospitals,

Government Regulation No. 47 of 2016 concerning Health Service Facilities.

Tertiary legal materials in the form of legal dictionaries and encyclopedias.

Techniques for Collecting Legal Data/Materials

Data collection techniques / legal materials carried out by researchers are focused on literature

research or can be said to be literature studies. Data obtained from literature studies are studying

legal books related to the problem under study, laws and regulations, legal views, and newspapers

that are also related to research materials.

Legal Material Processing and Analysis Techniques

The process of analyzing legal materials is carried out based on the results of data processing

sourced from secondary data. Secondary data in this study has three parts that become research legal

materials, namely 1) primary legal materials; 2) secondary legal materials; and 3) tertiary legal

materials. These three legal materials support the process of analyzing data in research so that the

data used can provide accuracy and assist researchers in conducting further research.

Previous Research

Until now, there has been no similar research with the title of this study, but previous research

that has approached this research includes: :

1) Legal Protection of Health Workers during the Covid-19 Pandemic by Gerardus Gegen and Aris

Prio Agus Santoso, published in the Scientific Journal of Legal Sciences QISTIE Vol. 14 No. 2.

November 2021.

2) Legal Protection of Health Workers Implementation of Vaccination at Puskesmas Karang Malang,

Mijen District, Semarang City During the 2019 Corona Virus Disease Pandemic" by Tri Susilowati,

Postgraduate Program of Darul Ulum Islamic Center Sudirman Guppi (Undaris) Ungaran.

Research Location

The location of this research was carried out at the Karno University Campus Library which is

located at street. Pegangsaan Timur Number 17A, Menteng, Jakarta, Balikpapan University Library on

street Pupuk Raya Gunung Bahagia, South Balikpapan District, Balikpapan City, East Kalimantan.

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3. Results and Discussions

Criminal Liability and Legal Protection of Medical and Health Workers

1. Consequences of Criminal Law,

Criminal law can be understood based on the understanding of criminal law and the functions

and objectives of Criminal Law. Didik Edro Purwoleksono summarized the understanding of Criminal

Law put forward by several experts, as follows: (Purwoleksono, 2014)

a. According to Van Hamel, the Criminal Law is the whole basis and rules followed by the State in

its obligations in law enforcement, by prohibiting what is contrary to the law (onrecht) and

causing suffering to those who violate the prohibition;

b. According to Simons, Criminal Law is divided into three criteria, namely the entire prohibition

or order by the State threatened with suffering if not obeyed, all regulations stipulated by the

conditions for imposing a crime, and all regulations that provide a basis for imposing and

determining the crime;

c. according to Soedarto, Criminal Law is a legal rule that binds an act that meets certain conditions

as a result of a crime, so that criminal law is based on two things, namely actions that meet

certain conditions and criminal; According to Moeljatno, the Criminal Law is part of the overall

law in force in a country with the basis of rules to determine how criminal imposition can be

carried out if there are people suspected of violating the prohibition, determining when and

under what conditions violators in violating the prohibition can be charged or sentenced to

crime as threatened, and determining which acts are not allowed to be done that are prohibited

accompanied by threats or sanctions in the form of certain crimes for those who violate the

prohibition.

Based on the above opinion, it can be concluded that in Criminal Law, what is meant by criminal

law consequences is a series of threats or sanctions that cause suffering to parties who violate

something that is prohibited. The consequences caused by this become important as an effort to be

able to prevent people from carrying out these prohibited actions. The functions of Criminal Law are

numerous, including: (Purwoleksono, 2014)

a. to provide protection against legal interests that are considered reprehensible, which based on

the explanation of Satochid Kartanegara and Hermen Hadiati Koeswadji, these legal interests are

divided into human life, human body or body, one's honor, one's independence, and the price of

property;

b. According to Andi Hamzah, the Criminal Law serves as the moral code of a nation.

2. Legal Protection of Medical and Health Workers,

a. Legal Protection Derived from Autonomous Law

Legal protection for Medical Personnel and Health Workers comes from autonomous law.

Autonomous law is a type of justice model based on procedures that give strong legitimacy to law

enforcement agencies, but in the process of enforcement is constrained by standard or standard

processes. The characteristics of autonomous law were outlined by Philippe Nonet and Philip

Selznick, namely: (Nonet & Selznick, 2017)

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1) The separation of law from politics, a distinctive feature of this legal system entails in the

independence of judicial power and contains a fine line between legislative and judicial

functions;

2) Legal order supports the "regulatory model", focusing on helping to implement regulations in

measures for accountability of officials while limiting the creativity of legal institutions and the

risk of interference by legal institutions in the political sphere;

3) Procedure as the heart of law, order and justice are not only for substantive justice, are the main

objectives and competencies of legal order;

4) Observance of the law is understood as perfect adherence to positive legal regulations, whereas

criticism of applicable laws must go through a political process.

Legal protection in autonomous law for medical personnel and health workers is contained in

the Health Law, Eleventh Section, Enforcement of Discipline of Medical Personnel and Health Workers

and Dispute Resolution. Article 304 of the Health Law regulates:

“(1) In order to support the professionalism of Medical Personnel and Health Personnel, it is

necessary to implement enforcement of professional discipline.

(2) In order to enforce professional discipline as masked in paragraph (1), The minister

establishes an assembly that carries out duties in the field of professional discipline..."

In addition, the protection of medical personnel and health workers can be seen that there is

an assembly that will conduct periodic monitoring in terms of the implementation of health

administration. In carrying out their duties, medical personnel or health workers resolving disputes

prioritize as referred to in Article 310 of the Health Law:

“In the event that Medical Personnel or Health Workers are suspected of making mistakes in

carrying out their profession that cause harm to Patients, disputes arising from such errors

are resolved first through alternative dispute resolution outside the court.”

Legal protection as stipulated in autonomous law is a right obtained by medical personnel and

health workers with the requirements as in Article 273 paragraph (1) letter a of the Health Law,

which reads:

“.... obtain legal protection while carrying out duties in accordance with professional

standards, professional service standards, standard operational procedures, and

professional ethics, as well as the health needs of patients.”

b. Legal Protection Derived from Heteronomous Law

Bambang Sutiyoso argues that Indonesia adheres to heteronomous legal findings because so

far judges are bound by laws and regulations (Sutiyoso, 2015). At the time of making legal discovery,

this is also closely related to the autonomous element because often judges have to use their own

views. The understanding of heteronomous law can also be interpreted by positivism in the context

of analogy. H.L.A. Hart explains that legal positivism is: (Prasetyo & Baitullah, 2007)

1) Laws that have been criticized in the form of positive laws must contain commandments;

2) The link between law and morals does not always have to be created (there is no necessary

connection between law and morals or law as it ought so be).

Legal protection provided to health workers and medical personnel in the context of

heteronomous law can be seen in various prohibitions in the Health Law. This protection aims to

protect the public as well as medical personnel and health workers, because their authority

becomes clear on what is allowed and prohibited,

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Table 1 Prohibition to Health Workers

Article

Prohibition

Article 60

prohibition of abortion, except with permissible criteria in

accordance with the provisions of the Criminal Code

Article 76

prohibition of shackling, neglect, violence, and/or instructing

others to carry out shackling, neglect, and/or violence against

people at risk or with mental disorders

Article 111

paragraph (2)

prohibition of refusing patients and/or asking for advances in

advance

Article 111

paragraph 119

prohibition of trading human blood

Article 124

prohibition of trading organs and/or body tissues

Article 135

prohibition of unproven safe stem cell and/or stem cell-based

therapies for reprobduction

Article 138

paragraph (2)

prohibition of procuring, reproducing, storing, promoting,

and/or distributing pharmaceutical preparations that do not

meet standards and/or safety

Article 138

paragraph (3)

prohibition of procuring, reproducing, storing, promoting,

and/or distributing Medical devices that do not meet standards

and/or safety

Article 139

prohibition of narcotic and psychotropic abuse

Article 147

Prohibition of trading food and beverages with incorrect

and/or misleading information on product information

The problematic position of medical and health workers from the point of view of criminal law

is associated with providing services beyond their authority regarding the use of mechanical

ventilators

The level of pressure on the health worker profession the author took during the COVID-19

pandemic at the Belitung Regency Health Center as an example, which is illustrated from the results

of the study as follows: (Priyatna et al., 2021)

Table 2 The level of pressure on the health profession

Anxiety Level

Frequency

Normal Anxiety

130

83,3

Mild Anxiety

5,8

Moderate Anxiety

7,7

Severe Anxiety

2,26

Very Anxiety

0,6

Work Sress Level

Mild work stress

31,4

Low work stress

35,3

Moderate work stress

27,6

Work Sress Level

Heavy work stress

5,8

Total

156

100

Based on the study, it was concluded that health workers were found to experience anxiety by

16.7% and work stress by 68.7%. This finding indicates that health workers are at risk of mental

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health disorders due to the COVID-19 pandemic situation (Priyatna et al., 2021).

This psychological condition is important because it will affect the actions of health workers

and medical personnel, not least related to the use of mechanical ventilators, which may be

categorized as actions outside their authority. However, criminal liability for actions outside the

authority carried out on the grounds of being in a state of crisis is certainly important to maintain

legal certainty.

1. Priority of Patient Safety or Legal Certainty for Medical and Health Workers.

a. Hippocratic Oaths in the Exercise of the Medical Profession and Medical Personnel.

Moral standards as the core of the medical and health profession as enunciated by

Hippocrates from the beginning became a good and important guideline. Although many

historians have not found a consensus that can be said to be the beginning of the Hippocratic

Oath, it is widely believed that the oath appeared in the Fourth century BC by a famous

physician named Hippocrates who is also called the "Father of Western Medicine". Along the

way there were still some changes to the version of the text of the Hippocratic Oath, for

example in the Middle Ages there were modifications made to conform to Christian doctrine.

The first recorded use of the oath outside Greece was at the University of Wittenberg,

Germany, in 1508 (Priyatna et al., 2021).

b. Principles in the implementation of the Medical Profession and Health Workers,

Article 2 of the Health Law mentions several principles that must be considered in health

administration, all of which aim to know the ontological and axiological aspects of health

administration, as follows:

Table 3 Ontological and axiological aspects in health administration

Ontological aspects

Aspek Aksiologis

• Balance

• Benefit

• Scientific

• Protection and Safety

• Participatory

• Alignment

• Legal Awareness

• State sovereignty

• Environmental Sustainability

• Cultural wisdom

• Order and legal certainty

• Humanity

• Equitable

• Ethics and Professionalism

• respect for rights and obligations

• justice

• nondiscriminatory

• Considerations of Morals and Religious Values

• General Importance

c. Ethical Aspects and Legal Aspects in Patient Management

Medical personnel, in this case the medical profession, have the Indonesian Code of

Medical Ethics (KODEKI) issued by the Executive Board of the Indonesian Medical

Association. KODEKI aims to be more affirmative in terms of fiduciary relationships. KODEKI

structurally consists of 21 articles that provide ethical guidelines in carrying out the

profession.

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Article 17 of the Code on Emergency Relief states in essence that every doctor is

obliged to realize humanitarian duties by providing emergency assistance for people in need.

This obligation can be fulfilled only if the doctor concerned believes that someone else is

willing and able to perform emergency assistance. Associated with the installation of

mechanical ventilators which is the topic of this study, from an ethical point of view, that

doctors are in principle obliged to perform emergency assistance associated with

humanitarian principles which are axiological elements, Article 17 of the Code covers three

main scopes, namely:

a. The doctor must assess whether or not basic life support is needed for each patient

when receiving emergency calls in the surrounding environment;

b. If the patient needs basic life support, the doctor must be willing to carry it out

immediately at the scene according to applicable standard operational procedures;

c. If there is an emergency event that does not require basic life support, the doctor must

play a role according to his clinical authority to treat the condition.

Article 286 of the Health Law is regulated as follows:

“(1) Under certain circumstances, Medical Personnel and Health Workers may provide

services beyond their authority.

(2) Certain circumstances as referred to in paragraph (1) shall at least include:

a. the absence of Medical Personnel and/or Health Personnel in an area where Medical

Personnel or Health Personnel are on duty;

b. Government Program Needs;

c. medical emergency management; and/or

d. Outbreaks, and/or disaster emergencies.

Furthermore, using a systematic interpretation, in the Regulation of the Minister of

Health of the Republic of Indonesia Number 47 of 2018 concerning Emergency Services

(Permenkes 47/2018), Article 1 point 3 states:

"An emergency is a clinical condition that requires immediate medical action for

lifesaving and disability prevention.”

The criteria for determining emergency situations based on Article 3 paragraph 2 of

Permenkes 47/2018 are life-threatening, endangering themselves and others/the

environment; the presence of disorders of the airway, breathing and circulation; the presence

of a decrease in consciousness; the presence of hermodynamic disorders; and/or require

immediate action.

2. The Link Between Criminal Responsibility and Professional Administration of Medical and

Health Workers,

This research specifically discusses if at one time, the installation of mechanical

ventilators is carried out by medical personnel or health workers who actually do not have the

authority to do so, which is due to the situation that there are no authorized medical personnel

or health workers while the patient really needs it, and it turns out to cause harm to the patient

concerned. The provision of services outside the authority is regulated under Article 286 of the

Health Law.

More detailed specifications regarding this matter have not been regulated more and Article

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289 of the Health Law only mentions that its authority will be regulated in a Government Regulation.

The installation of mechanical ventilators to patients in ICU in crisis is guided by the Decree of the

Minister of Health of the Republic of Indonesia Number 1778 / MENKES / SK / XII / 2010 concerning

Guidelines for the Implementation of Intensive Care Unit (ICU) Services in Hospitals (Kepmenkes

1778/MENKES/SK/XII/2010).

a) Willfulness or Negligence as an Element of Fault,

Intentionality or negligence in Criminal Law is a crucial thing that must be understood

because it is related to criminal liability and its sanctions. Negligence in history is expressed by

Rowe and Silver quoted by Peter F. Lake, (Silver & Rowe, 1995)

“As the eighteenth century gave way to the nineteenth, the word negligence assumed legal

significance and began to forge an action destined to replace trespass on the case. But the word made

its debut without overt connection to anything called "duty." Toward the mid-nineteenth century, the

word "duty" sounded its first cries”

Ketika abad ke-18 beralih ke abad ke-19, kata kelalaian mempunyai arti hukum dan mulai terbentuk

sebagai suatu tindakan yang bertujuan untuk memperbaiki pelanggaran yang dilakukan dalam

perkara tersebut. Namun kata tersebut dimulai tanpa kaitan apa pun dengan apa pun yang disebut

“seharusnya”. Sekitar pertengahan abad ke-19, kata “tugas” mulai terdengar. Konsep kelalaian di

Indonesia dapat diliat dari sudut pandang Wirjono Prodjodikoro, yaitu kelalaian atau culpa sama

dengan kesalahan pada umumnya, tetapi dalam Ilmu Hukum tidak memiliki arti teknis, karena dalam

tindak pidana kelalaian tidak seberat kesengajaan atau ketidakhati-hatian sehingga menyebabkan

akibat yang dilarang itu terjadi (Prodjodikoro, 1989). Terhadap ciri-cirinya kelalaian dapat

diidentifikasi sebagai: (Prodjodikoro, 1989)

a. deliberately doing an act that turns out to be wrong, because using his wrong memory/brain,

He should have used his memory as well as possible, but He did not use it, in other words, He

did the action without doing caution;

b. The perpetrator can foresee what might happen, but he believes he can prevent it, and if this

effect occurs, the perpetrator will not want to take any action that leads to the effect, but the

perpetrator does not cancel the action which is then condemned for breaking the law.

The fundamental difference between negligence and intentionality lies in the

consequences caused as is an expression of the will and real actions of the perpetrator. Criminal

liability for a criminal act committed intentionally is certainly more severe than a criminal act

due to negligence. If consequential dolus is likened to gross negligence (bewuste schuld or culpa

lata), then consequential dolus requires awareness of the possibility of something happening,

even though one can do something else, but prefers to complete the action even though the

perpetrator knows the risks. Conversely, in the case of culpa lata, the perpetrator must be able

to estimate (voorzien) the likelihood of an effect occurring.

Regarding the degree of negligence, the Criminal Code has no rules or explanations at all.

Based on legal cases, for criminal acts, the highest level of negligence is used, namely culpa lata

or grove schuld. Negligence should be classified as gross negligence or flagrant negligence, thus

crimes caused by minor negligence (culpa levis), the perpetrator is not responsible. In contrast to

intentionality, intention (opzet) in Indonesian Criminal Law includes three types, namely:

(Prodjodikoro, 1989)

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a. The intention to commit actions that are prohibited and threatened with crime for certain

purposes, in the sense that the perpetrator does want to achieve a certain result, this is the

main reason for the threat of punishment;

b. Definite consideration, in the sense that the intention exists if the perpetrator through his

actions does not aim to achieve the consequences on which the crime is based, but the

perpetrator knows and realizes that the consequences will inevitably arise from the actions

he commits;

c. The consideration of realizing this possibility, in the sense that the intention is clearly not

accompanied by the shadow of certainty that the intended effect will occur, but only by

imagining the possibility of the occurrence of the effect.

c. Criminal Indication of Willfulness or Negligence Caused by Providing Health Services Beyond

Authority

Actions committed by medical personnel or health workers outside their authority from

a legal point of view can potentially lead to allegations of intentional or deliberate occurrence

that are threatened with criminal sanctions. Although in principle, Article 286 of the Health Law

has regulated the provision of health services outside the authority, the problem lies in the legal

risks that may occur, which then demand accountability as stipulated in Article 440 of the Health

Law which reads:

“(1) Every Medical Worker or Health Worker who commits negligence that results in serious

injury shall be punished with a maximum imprisonment of 3 (three) years or a maximum

fine of Rp250,000,000.00 (two hundred fifty million rupiah;).

(2) If negligence as referred to in paragraph (1) results in death, each Medical Worker or

Health Worker shall be loaned with a maximum imprisonment of 5 (five) years or a

maximum fine of Rp. 500,000,000.00 (five hundred million rupiah)."

Actions committed beyond his authority so as to cause as stipulated in Article 440 of the Health

Law to be criminalized. However, to be able to give or impose the crime, several mechanisms need to

be taken as stipulated in the health Law. Based on Article 308 paragraph (1) regulated:

“Medical Personnel or Health Workers who are suspected of committing unlawful acts in the

implementation of Health Services that can be subject to criminal sanctions must first be

asked for recommendations from the panel as referred to in Article 304”

If you look at Article 304 of the health Law, the assembly carries out duties in the field of

professional discipline that determine whether there are violations of professional discipline

committed by medical personnel and health workers, whose membership can be permanent or ad

hoc, whose duties and functions are regulated by Government Regulations. The provision provides

protection for the actions of medical and health workers with mechanisms before the alleged

criminal act as follows:

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d. Use of Mechanical Ventilators by Medical and Health Workers in Health Law Perspective

Referring to the Permanent Procedures of the National University Nursing Laboratory

published on August 1, 2017, a mechanical ventilator is a mechanical aid that is "mandatory" in

the intensive care unit that functions to provide breathing assistance to patients by providing

positive air pressure to the lungs through an artificial airway. The purpose of installing a

mechanical ventilator includes reducing respiratory work, increasing the patient's comfort level,

providing an accurate amount of air given in one minute, overcoming ventilation imbalances and

melagir oxygen flow to the lungs for blood circulation (perfusion), and ensuring oxygen delivery

to tissues.

In the point of view of Health Law specifically for COVID-19 conditions, the use of

mechanical ventilators is regulated in the Decree of the Minister of Health of the Republic of

Indonesia Number HK.01.07/MENKES/5671/2021 concerning Clinical Management of Corona

Virus Disease 2019 (COVID-19) Management in Health Service Facilities (Kepmenkes Clinical

Management of COVID-19 Management in Health Service Facilities). Conditions intended for

mechanical ventilator use include respiratory failure, shock or multiorgan failure requiring ICU

treatment, and preventing ventilator associated pneumonia/hospotal acquired pneumonia.

The use of mechanical ventilators, of course, must pay attention to special matters related

to breathing which are divided into several degrees of symptoms that need professional

assessment in determining them, which are also regulated in the Ministry of Health Decree on

Clinical Management of COVID-19 Management in Health Service Facilities, Chapter III Degrees

of Symptoms and Clinical Management of Adult Covid-19 Patients.

e. Justifying Reasons and Forgiving Reasons in Providing Health Services Beyond Authority,

The reasons for abolishing crime are based on the opinion of Achmad Soema, as follows:

R. Achmad Soema (1982) in (Hadzil et al., 2019)

a. A justifiable reason is a reason that eliminates the unlawful nature of an act so that what

the defendant does then becomes an appropriate and righteous act;

b. Reason for forgiveness, which is a reason to eliminate the guilt of the defendant even

Alleged criminal

offences

Recommendatio

ns of the

Professional

Assembly

Recommendatio

ns are given no

later than 14

working days

from receipt

More than the

considered

period of time

recommendation

s have been

given

Begins criminal

tracing process

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though the defendant's actions are still unlawful so that they are still a criminal offense, but

are not punished because there is no guilt;

c. the reason for the revocation of the prosecution is for legitimate reasons based on its

usefulness or benefit to society.

If it is related to Article 286 of the Health Law, what is meant by "certain circumstances" in the

author's view includes justifying reasons, namely holding oaths and professional ethics,

especially the reason for saving patients' lives, even though unfortunately the mandate of Article

289 of the Health Law which basically states that the regulation of "certain circumstances" in

more detail that should be regulated by Government Regulations, currently does not exist.

4. Conclusion

Based on the research that has been done, the author concludes as follows: 1) The

implementation of health services is very important in supporting patient satisfaction and needs to

be considered by health workers, this has been regulated in article 54 of the Health Law concerning

the provision of health services, namely: the implementation of health services is carried out

responsibly, safely, of equitable quality and non-discrimination. Legal protection by using statutory

instruments, namely in Law No. 44 of 2009 concerning Hospitals, namely: obtaining information

about the rules and regulations applicable in the Hospital, obtaining information about the rights and

obligations of patients, obtaining humane, fair, honest, and non-discriminatory services, obtaining

quality health services in accordance with professional standards and standard operational

procedures, Obtain effective and efficient services so that patients avoid physical and material losses.

2) The phrase "certain circumstances" in Article 286 paragraph (1) of the Health Law has fulfilled

legal certainty by regulating the provisions in paragraph (2) which states that certain circumstances

at least include the absence of medical personnel and/or health workers in an area where medical

personnel or health workers are on duty; the needs of government programs; medical emergency

management; and/or extraordinary circumstances, outbreaks, and/or disaster emergencies. 3) The

position faced by medical personnel or health workers is sometimes problematic because the

installation of mechanical ventilators for Covid-19 patients from the point of view of the Criminal Law

is a mistake if done outside the authority, even though the medical personnel or health workers are

faced with the function and duty of carrying out actions for patient safety which are certainly bound

by the Hippocratic Oath as an ethical and moral foundation. If it is related to Article 286 of the Health

Law, what is meant by "certain circumstances" according to the author includes justification reasons

that can exempt medical personnel or health workers from criminal liability, namely holding oaths

and professional ethics, especially reasons for saving patients' lives, even though it is unfortunate that

the mandate of Article 289 of the Health Law basically states that the regulation of "certain

circumstances" in more detail that should be regulated by Government Regulations, currently does

not exist.

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