Wednesday (15/06) Center for Bioethics and Medical Humanities again held a virtual discussion forum entitled Raboan Discussion Forum. On that occasion, the topic was entitled Efforts to Achieve Restorative Justice: Strategies in Facing Medical Disputes. The title was presented by the speaker, dr. Gregorius Yoga Panji Asmara, S.Ked., S.H., M.H., C.L.A. Meanwhile, the moderator was dr. Galuh Dyah Fatmala.
Neither doctors nor patients want a medical dispute to occur. However, a doctor has rights and obligations that must be carried out. Likewise, with patients, they have the right to get maximum health services from doctors. A patient has the right to file a criminal complaint when he feels he has received inappropriate services. So legal disputes between doctors and patients are things that can happen in the practice of health services.
According to dr. Gregorius said that current law in Indonesia still tends to use the retributive paradigm. The retributive paradigm is one of the legal paradigms that emphasizes providing a deterrent effect to perpetrators. Whereas the retributive paradigm has been criticized by legal experts abroad because it is considered to ignore the long-term aspects of a sentence.
Gregorius said that abroad there has been a paradigm shift from retributive to restorative. The restorative justice paradigm puts forward alternative solutions in a legal case. Restorative justice encourages the process of conciliation between patients and doctors. The parties involved will be asked to gather and consult to resolve the problem collectively to prevent negative consequences in the future.
“Encouraging efforts to heal rather than punish,” said dr. Gregorius
Article 29 of Law Number 36 of 2009 concerning Health reads “If a health worker is suspected of negligence in carrying out his profession, the negligence must be resolved first through mediation”. The article indicates that the resolution of health disputes in Indonesia seeks a deliberation process carried out by both parties before the dispute is brought to court. In addition to mediation, there are several other non-litigation Alternative Dispute Resolutions such as negotiation and arbitration.
Gregorius hopes that restorative justice can become a modern legal paradigm that is developing in Indonesian society. “Medical disputes in the form of alleged ethical, disciplinary, and legal issues have their respective enforcement/handling procedures. “Justice” can be fought for until the end, by fully understanding the process taken,” said dr. Gregorius.
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