Legal Uncertainty in Professional Disciplinary Council Recommendations for Patient Civil Claims Under Indonesia's 2023 Health Law

Vollständiger Abstract

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Law Number 17 of 2023 on Health introduced a Professional Disciplinary Council (Majelis Disiplin Profesi, MDP) recommendation mechanism for civil claims arising from medical and health services. Article 308(2) requires a recommendation where medical or health personnel are held civilly liable for conduct that allegedly harms a patient, while Article 308(4) provides that the recommendation is issued after the defendant, or an authorized representative, submits a written request. This study examines whether that procedural design satisfies the requirements of legal certainty, procedural fairness, and effective access to justice. It employs normative legal research using statutory, conceptual, and case approaches. Primary legal materials include Law Number 17 of 2023, Government Regulation Number 28 of 2024, Minister of Health Regulation Number 3 of 2025, and recent Constitutional Court decisions concerning Article 308. The analysis shows that the MDP mechanism has a legitimate protective rationale: professional standards should be assessed by a competent disciplinary body before medical conduct is treated as legal fault. Nevertheless, the allocation of procedural initiative to the defendant, the absence of an express consequence for failure to request a recommendation, and uncertainty regarding the recommendation's effect on judicial examination create a structural risk of inconsistent civil procedure. The article argues that the problem is not the existence of professional review itself, but the incomplete legal architecture governing its relationship with the court. It proposes a court-triggered referral mechanism, a strict time limit, a non-preclusive consequence for defendant inaction, and an explicit rule that MDP recommendations inform but do not bind judicial determinations of civil liability.