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American Interdisciplinary Journal of Business 

and Economics 
ISSN: 2837-1909| Impact Factor : 4.6 

Volume. 9, Number 1; January-March, 2022; 

Published By: Scientific and Academic Development Institute (SADI) 

8933 Willis Ave Los Angeles, California 

https://sadipub.com/Journals/index.php/aijbe 

 

 

  

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MEDICAL SERVICES AND STANDARD OPERATING PROCEDURES: 

THE IUS CONSTITUENDUM FRAMEWORK FOR LEGAL 

RESPONSIBILITY 
 

 

Muhammad Sulbadana 

Tadulako Universitas University, Indonesia 

 

Abstract:  This study explores the legal responsibility of medical personnel towards their patients in the 

context of their obligation to provide adequate care and adhere to standard operating procedures (SOP). The 

authors argue that negligence or malpractice can result in harm to patients and should have legal consequences. 

Through a normative research method supported by empirical research data, this study discusses the concept 

of negligence and the conditions that must be met for a doctor to be held accountable for their actions. An 

unlawful act that causes harm must be proven, and the doctor must be found guilty of gross negligence. The 

study advocates for restorative justice as a solution to medical malpractice, which takes into account the needs 

and perspectives of both the victim and the perpetrator. The study concludes by emphasizing the need for legal 

reform to ensure that doctors are accountable for their actions, and that patients' rights are protected. 

Keywords: medical personnel, legal responsibility, negligence, standard operating procedures, restorative 

justice, legal reform. 

 

Introduction:  

The relationship between medical personnel and patients is one that relies heavily on trust and responsibility. 

Doctors have a considerable responsibility to provide adequate care for their patients and adhere to standard 

operating procedures. However, negligence or malpractice can result in harm to patients, which has legal 

consequences. The aim of this study is to explore the legal responsibility of medical personnel towards their 

patients, focusing on the conditions needed for medical staff to be held accountable for their actions. The 

study discusses the concept of negligence (culpa) and how it relates to the actions of medical personnel, 

emphasizing the need for doctors to provide medical services in accordance with professional standards and 

standard operating procedures. The study also considers the role of restorative justice as a means of addressing 

medical malpractice, which can take into account the needs and perspectives of both the victim and the 

perpetrator. The study concludes by proposing legal reform to ensure that doctors are accountable for their 

actions and that patients' rights are protected. Through a normative research method supported by empirical 

research data, this study provides an insight into the legal responsibility of medical personnel towards their 

patients and the need for reform to uphold the values of social justice and equity. 

Errors in the form of negligence/omissions in the Criminal Code are stated in the term “aan zijn schuld te 

wijten” which is contained in Article 344, Article 359 and Article 360 ??of the Criminal Code. Negligence 

(Culpa), Simon and Van Hamel argue:  

1. Simon,requires two things for negligence (culpa):  

2. Lack of caution (het gemis van voorzichtigheid);  



  

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3. Lack of attention to the consequences that might occur (het gemis van de voorzienbaarheid van het 

gevolg)  

4. Van Hamel, also gives two conditions for negligence (culpa):  

5. No estimators are needed  

6. The absence of the necessary caution (het gemis van nodige voorzichtigheid).  

The study of ordinary crimes lies in the consequences of criminal acts, while in medical crimes (medical 

malpractice) studies on the causes of criminal acts. In medical crimes, in relation to negligence (culpa), 

accountability must be proven in relation to professional errors, for example misdiagnosis or medication 

errors. Errors in medical action generally occur due to negligence committed by doctors, where the standard 

for errors in carrying out the duties of the medical profession in the form of negligence in criminal law is 

gross negligence (culpa lata), not minor negligence (culpa levis).   

But what needs to be known, negligence (culpa) does not include unlawful acts if it does not cause harm to 

other people. In the legal doctrine: “de minimus non curat lex” (the law does not interfere in trivial matters), 

however, the exception is for gross negligence (culpa lata) which is regulated in article 359 of the Criminal 

Code.  

Almost certainly, article 359 of the Criminal Code, is always charged with death allegedly caused by a doctor’s 

mistake (Adami Chazawi, 2007). Besides the mental attitude of the culpa there must be three more elements. 

The three elements referred to are the details of the sentence “cause another person to die”, namely:  

1. There must be a form of Action;  

2. There is a consequence in the form of death;  

3. There is a causal verband between the form of action and the consequences of death.  

Equality before the lawfound in almost all state constitutions. This is the norm that protects the human rights 

of citizens. “If this is included in the constitution, then the logical consequence is that the authorities and law 

enforcers must carry out and realize this principle in the life of the state”.  

Doctor’s negligence or negligence is not the same as malpractice, but negligence is included in the meaning 

of malpractice, meaning that in malpractice there is not always an element of negligence. Negligence is any 

action taken and can violate standards resulting in injury/loss to others (Sampurno, 2005). It can be concluded 

that negligence is doing something that should be done at a scientific level but not being done or taking action 

below a predetermined standard.  

Forms of negligence according to Sampurno, are as follows:  

1. Malfeasancenamely taking actions that violate the law or are inappropriate/proper, for example: 

carrying out nursing actions without adequate/proper indications.  

2. Misfeasancenamely making the right choice of nursing action but implemented inappropriately, for 

example: carrying out nursing actions by violating procedures.  

3. Nonfeasance, namely not carrying out nursing actions which are their obligations, for example: the 

patient should be put on a bed guard but this is not done.  

The impact as a result of the criminal justice system being offender oriented, thus providing a rationale for 

legal renewal with the need for the concept of settling cases outside the criminal justice system in the context 

of Restorative Justice. The concept of the Restorative Justice approach is an approach that focuses more on 

conditions for creating justice and balance for victims and perpetrators (Afthonul Afif, 2015).  

The concept of Restorative Justice is a critique of the system conceptcriminal justice system that sees crime 

as a violation of state regulations. So that related to renewal in the field of legal aspects, of course the 

Indonesian people have an ideal in which the legal aspect becomes something noble with the concept that not 

always a legal problem for the perpetrator becomes a way out by means of being criminalized as a form of 

final accountability for an act committed. but the concept of restorative justice is the main solution to solving 

legal problems between fellow citizens in order to achieve the goals of the law itself.  



  

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METHOD  

The step to identify this type of research is to use Normative Research Methods supported by Empirical 

Research data, whichThis research method focuses on the relationship between the object of health sociology 

(the relationship between medical personnel and patients) andexamines problems from the perspective of 

social aspects, health aspects and cannot be separated from legal concepts.  

The approach in this writing is carried out in normative law research which includes:  

Philosophical approach (philosophical approach)  

This approach is applied because it examines valuesThe legal basis is related to the actions of medical staff 

so that they find a new concept in the renewal of the country’s law which is aspired to.  

Approach to Legislation (statute approach)  

It is an approach used to study and analyze:  

1. All Laws; and  

2. Regulations related to existing legal issues.  

3. Conceptual Approach  

The conceptual approach departs from the views that have developed in the science of law by studying these 

views in the science of law  

The case approach  

The case approach is carried out by examining cases related to the issues at hand which have become court 

decisions that have permanent legal force.  

The sources of legal materials used in this dissertation are as follows:  

1. Primary legal material is legal material that is authoritative, meaning it has authority or binding legal 

material  

2. Secondary legal materials namelySecondary legal material in this case consists of books on law / 

Social and Health or relevant to the topic of study, legal journals, legal papers or views of legal experts 

contained in the mass media, legal dictionaries and encyclopedias, as well as sources of legal material. that 

comes from the internet.  

3. Tertiary Legal Materials, namely legal materials which are complementary in nature to provide 

additional instructions or explanations to primary and secondary legal materials  

RESULTS AND DISCUSSION  

The Relationship between Medical Personnel and Patients in the Perspective of Health Law  

Health services are efforts carried out by the Government together with the community in order to improve, 

maintain and restore the health of the population which includes preventive, curative and rehabilitative 

promotions. In a narrow sense this effort is carried out by institutions that provide treatment to someone who 

is sick, in this case is a hospital (Sri Paptianingsih, 2006).  

Patient Rights and Responsibilities  

The patient’s right to receive medical services is regulated in detail in Article 45 paragraph (3) of Law Number 

29 of 2004 concerning Medical Practice, namely:  

1. Get a complete explanation of medical procedures  

2. Ask for the opinion of another doctor or dentist,  

3. Get services according to medical needs,  

4. Refusing medical action  

5. Get the contents of the medical record.  

patients also have The obligations referred to in RI Law No.29 Article 53 of 2009 concerning Medical  

Practice, namely;  

1. Provide complete and honest information about their health problems.  

2. Follow the advice and instructions of a doctor or dentist.  



  

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3. Comply with the provisions that apply in health care facilities.  

4. Provide compensation for services rendered.  

5. Fulfill the things that have been agreed / agreements that have been made  

Doctor’s Rights and Obligations  

Doctor’s rights as contained in Article 50 stipulates that doctors in carrying out medical practice have the 

right: 

1. Obtain legal protection as long as carrying out duties in accordance with professional standards and 

standard operating procedures.  

2. Providing medical services according to professional standards and standard operating procedures  

3. Obtain complete and honest information from patients or their families; and  

4. Receiving service fees.  

Obligations as Article 51 explains that doctors and dentists in carrying out medical practice have the obligation 

to:  

1. Providing medical services in accordance with professional standards and standard operating 

procedures as well as the medical needs of patients  

2. Referring the patient to a doctor or dentist who has better expertise or ability, if unable to carry out an 

examination or treatment.  

3. Keeps everything he knows about the patient a secret, even after the patient dies.  

4. Carry out emergency aid on the basis of humanity, unless he is sure that someone else is on duty and 

does it.  

5. Providing medical services according to professional standards and standard operating procedures  

6. Obtain complete and honest information from patients or their families; and 7. Receiving service fees  

Standard Operating Procedures  

According to Article 29 Paragraph (1) of the Republic of Indonesia Law no29 of 2004 concerning Medical 

Practice, it is mandatory to have authority, namely having a registration certificate (STR), whereas according 

to article 36 of the Republic of Indonesia Law number 29 of 2004 concerning Medical Practice, it is mandatory 

to have a Practice Permit (SIP). Violating either or both of these obligations can pave the way for medical 

malpractice.  

Informed Consent  

PERMENKES 290 / MENKES / PER / III / 2008 concerning Approval of Medical Actions, namely that before 

carrying out a medical action, it must be preceded by explanations regarding the actions, risks, that will be 

carried out on the patient. If this is not done by the doctor, the doctor is considered negligent in carrying out 

his profession and law. Informed consent cannot negate or prevent the holding of a claim before the court or 

release the doctor/hospital from their responsibilities if there is negligence. According to Sumaryono, the 

function of the professional code of ethics has 3 meanings (a) as a means of social control; (b) as a deterrent 

to interference from other parties and (c) as a deterrent to misunderstanding and conflict (E. Sumaryono-

1998).  

Responsibility for Negligence of Medical Personnel in the Perspective of Criminal Law  

In this context, law is qonditio sine quanon, an absolute requirement for society (Hendrojono Soewono, 

2007). The view of legal sources is seen from a philosophical, standard objectivelaw can create justice and 

prosperity which must be preceded by ideal conditions, namely law users are always principled, everyone 

must obey the law, so that justice and prosperity can be created (Mudakir Iskandar, 2017)  

Basically the practice of a doctor is the provision of assistanceindividually by doctors to patients in the form 

of medical services. If someone comes to a doctor to take advantage of available medical services, then a legal 

relationship occurs between the doctor as a medical worker and the patient which is called a therapeutic 

transaction. This kind of legal relationship that does not promise any healing or death is called 



  

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inspanningsverbintenis, which is different from the legal relationship that normally applies in agreements in 

general that promise a certain result (risk verbentenis / resultaatsverbentenis).  

There is a similarity between ethics and law, that is, both require humans to do good and right in society. 

Besides that, in ethics and law to regulate sanctions that can be imposed.  

The forms of violations committed by medical servants, in this case the medical profession, can be classified 

as follows:  

1. Medical Responsibility in Professional Ethics Medical  

2. Medical Responsibility in Medical Discipline  

3. Medical Responsibility in Administrative Law  

4. Medical Responsibility in Civil Law  

5. Medical Liability in Criminal Law  

Draft The Idea of ??Doctor’s Negligence Liability for Patients as an Idea for Legal Reform (Ius 

Constituendum)  

Development of Legal Materials is an assessment of regulatory legal norms (Regeling-Recht) which aims to 

carry out Regulatory Reform which aims (finally) can be in the form of recommendations in the form of 

Change (Revision), Replacement (Revocation-Revocation) or indeed maintaining (Preservation) the existing 

regulatory norms.  

Development of National Law, in this case through the Analysis and Evaluation of the Development of the  

Criminal Law System is directed at a Restorative Justice approach that benefits the Community (Social 

Welfare) (Idriyanto Seno Adji,2016).  

The restorative justice approach is assumed to be the most recent shift from the various models and 

mechanisms that work in the criminal justice system in dealing with criminal cases at this time, even though 

this movement began in the 1970s in North America and Europe which was marked by the presence of the 

Victim Offender Reconciliation Program. in Ontario, then discovery in Indiana and England (Muladi, Paper, 

2012). Restorative justice policy is both a response and a critiqueagainst the implementation of the criminal 

justice system (general) with the prison system which so far has been proven to be ineffective in resolving 

legal issues. In Marian Leibmann’s view, the concept of solving criminal problems with a restorative justice 

approach is more (Marian Leibmann, 2007): (1) prioritizing support and healing for victims, both physically 

and psychologically; (2) encourage perpetrators to be accountable for their actions to victims; (3) prioritizing 

dialogue or deliberation between victims and perpetrators to reach mutually beneficial agreements for the 

parties, so that the dispute resolution process brings benefits, especially for victims and perpetrators; (4) put 

in a correct and proportionate manner the losses suffered by the victim arising from the aforementioned legal 

event; (5) awaken the perpetrators and prevent the emergence or recurrence of new crimes of the same kind; 

and (6) involving the community in the process of integration between victims and perpetrators after an 

incident where there is generally disharmony, even grudges against each other, including the occurrence of 

disharmony of values ??in society.  

According to Howard Zehr; Restorativejustice is not a particular program or a blueprint: Various 

programs embody restorative justice in part or in full. However, there is no pure model that can be seen as 

ideal or that can be simply implemented in any community. We are still on a steep learning curve in this field. 

The most exciting practices that have emerged in the past years were not even imagined by those of us who 

started the first programs, and many more new ideas will surely emerge through dialogue and experimentation 

(Howard Zehr, 2001)  

restorative justiceis an alternative in the criminal justice system withput forward an integral approach between 

perpetrators and victims and society as a unit to find solutions and return to patterns of good relations in 

society where this is a concept of legal expectation that every citizen dreams of so that they think that not all 

criminals must be punished in imprisonment as a last resort (Ultimum remedium)¸ but expect a rule/legal 



  

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system that makes mediation in a family manner the first or last resort as a form of settlement (Ius 

Constituendum).  

In connection with criminal cases involving medical personnel, throughrestorative justice policies can be 

applied to deal with medical crimes effectively by:  

1. Non-litigation, namely by applying the concept of a restorative justice approach through dialogue and 

deliberation between the parties involved.  

2. Quasilitigation, i.e. by involving law enforcers as usual litigation process, but ends with peace in a 

dialogical manner (non-litigation)  

3. Linvestigation, namely using a pure criminal law approach.  

Of the three ways mentioned above it can be seen thatBathat restorative justice policies have good prospects 

in efforts to combat medical crime because empirically they are in line with socio-cultural values ??that exist, 

grow and develop in society, and are also in line with the Indonesian nation’s philosophy, Pancasila. So, the 

restorative justice policy is the law of the future (ius constituendum) whose application can be carried out by 

the following methods: construction, codification, and unification.  

Awareness of the importance of the concept of restorative justice as a soul and personality(volkgeist) of the 

Indonesian people has made the government make legal breakthroughs, even though these legal breakthroughs 

are still partial Regardless of the matter referred to, by considering the importance of legal settlement by 

means of restorative justice, three legal institutions namely the police, the Attorney General’s Office and the 

Supreme Court have made and issued regulations related to restorative justice in the concept of settlement of 

criminal cases as a form of breakthrough for the renewal of Indonesian law as desired. ideal (Ius 

Constituendum), among others:  

1. Republic of Indonesia Police  

Based on the Chief of Police Regulation Number 8 of 2021, regarding the Handling of Crimes Based on 

Restorative Justice, according to the contents of Chapter I Article 1 3 that Restorative Justice is the settlement 

of a Crime by involving the perpetrator, victim, perpetrator’s family, victim’s family, community leaders, 

religious leaders, traditional leaders or stakeholders to collectively seek a just settlement through peace by 

emphasizing restoration to its original state.  

2. Republic of Indonesia Attorney.  

Based on Prosecutor’s Regulation Number 15 of 2020 concerning Termination of Prosecution Based on 

Restorative Justice, in accordance with the contents of Chapter I Article 1 1 that Restorative Justice is the 

settlement of a Crime by involving the perpetrator, victim, family of the perpetrator/victim, and other related 

parties to jointly seek a fair solution by emphasizing restoration to its original state and not retaliation .  

3. General Court (RI Supreme Court).  

Based on the Decree of the Director General of the General Judiciary Agency of the Supreme Court of the  

Republic of Indonesia Number: 1691 / DJU / SK / PS.00 / 12 / 2020, December 22 2020 concerning 

Enforcement of Guidelines for the Implementation of Restorative Justice in the General Court Environment 

as contained in Chapter I letter D 2 which is contained in the Guidelines referred to the settlement of Crimes 

by involving the perpetrator, victim, family of the perpetrator/victim, and other related parties to jointly seek 

a fair solution by emphasizing restoration to its original state and not retaliation.  

CONCLUSION  

1. Legal protection for the community as an object or part of services in the health sector (patients) 

carried out by doctors, especially related to medical actions taken as well as protection for the medical 

profession, especially doctors themselves, can apply Restorative Justice as a concept for solving legal 

problems faced by both  

2. Unlawful acts committed by medical personnel / doctors from a medical action carried out against the 

community if an action is found outside the rules / SOP or the action is considered risky but the medical staff 



  

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/ doctor makes an error in the practice carried out, so of course accountability The law that is carried out must 

have a concept that represents a sense of justice for the patient.  

3. Renewal of state law is something that is coveted by the community, inseparable from the existence 

of legal regulations that lead to the concept of justice. Restorative Justice (restorative justice)has good 

prospects in efforts to combat medical crime because empirically it is in line with the socio-cultural values 

??that exist, grow and develop in society, and are also in line with the Indonesian nation’s philosophy, 

Pancasila. So, the restorative justice policy is the law of the future (ius constituendum) which is in line with 

the concept of reforming state law.  

ACKNOWLEDGMENTS   

Praise be to the presence of Allah SWT, for all His blessings so that the Author can complete the dissertation 

article entitled “Accountability of Medical Personnel Negligence to Patients in the Perspective of Ius 

Constituendum”, in which the Author realizes that this article can be completed because of the prayers of the 

Author’s parents, Ayahnda Ilham Jafar, S.Pd and Ibunda Hj. Zahra, S.Pd and the support of the three authors’ 

children namely Muhammad Rezky Yudistiawan, Muhammad Ilham Ghazali and Ananda Nurindah Ebtawan 

and to Prof. Dr. Ir. H. Muhammad Basir, SE, MS, IPU, ASEAN Eng as Promoter and Dr. H. Sulbadana, SH, 

MH who has contributed a lot in terms of guidance and assistance as well as directions during his busy time 

and including the parties, in this case the Head of the Health Office, Central Sulawesi,  

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