Health Bill Controversy
Legislation does not need to be rushed. There is currently no element of urgency to accelerate the enactment of the health law.
The model of omnibus legislation is being used not only for job creation, but also health.
The draft of the omnibus bill on health has recently been circulated. It regulates various health issues, from medical practices to health care provided by the Social Security Agency (BPJS), or BPJS Kesehatan. The bill has drawn rejection from various circles.
Several professional organizations, such as the Indonesian Doctors Association (IDI), the Indonesian Dentists Association (PDGI) and the Indonesian Nurses Association, held a press conference and expressed their objection to the bill. Among the many reasons was that the drafting of the bill did not involve them as professional representatives of doctors, dentists and nurses. They are the ones who will be subject to many of the legislation’s effects.
Minimal urgency
Until now there has been no affirmation of who formulated the draft. Was it the House of Representatives, the Health Ministry or other health stakeholders?
House legislation body (Baleg) chairman Supratman Andi only said the bill was being drafted to be passed into a law. This bill has been included in the 2022-2023 National Legislation Program (prolegnas), which means it will undergo deliberation soon. Several existing health laws, including the Nursing Law, Midwifery Law and Medical Practice Law, will be incorporated into this omnibus law. The reason is that those health laws are too complex and prone to misinterpretation when used as references.
Many questions are arising from the bill. One of them is concerning its urgency. Is the omnibus law really needed at this time and what is the urgency for it to be included in the prolegnas list?
Those questions have appeared out of several arguments. First, the omnibus law aims to incorporate, streamline and rearrange overlapping regulatory provisions. Expected to be the regulatory thread, an omnibus law model will be effective if applied to fix complex and excessive regulations that stifle the sector with a plethora of rules that overlap or contradict one another. Roughly speaking, there is regulatory complexity, heterogeneity and contradiction.
In the employment domain, for example, there were many and varied rules, which led to concern. Thus, the Job Creation Law was introduced as a synthesis of 78 laws. On the other hand, the background to the emergence of the proposed omnibus law on health has not been as complex as the Job Creation Law. The proposed health law only incorporates nine laws, most of which are homogeneous because they largely carry health themes. So far, no fuss has been heard regarding contradictions between those laws. It means that the elements of complexity, heterogeneity and contradictions that should be the trigger of the omnibus health legislation are not clear.
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Second, some of the health laws that will be merged into omnibus law are still short in the enactment period. The Nursing Law and Health Workers Law were enacted in 2014, while the Health Quarantine Law and Midwifery Law were passed in 2018 and 2019, respectively. Currently, stakeholders of those laws are striving to implement and promulgate the binding legal provisions, as well as creating the derivative regulations. Given all these, why are these existing laws suddenly going to be rescinded and replaced with new ones?
Before initiating this omnibus bill, the House should carry out intensive communication with relevant stakeholders. There should ideally be empirical discussions and rational explanations as to why the existing laws need to be repealed, replaced or merged. Are there serious contradictions between these laws? There should be philosophical, juridical, social and health-related reviews, which are justifiably related to the urgency of the omnibus law. The arguments about “having potential to create concern” are not enough to justify the making of a new law.
The involvement of the community and professional organizations must also be sought in formulating a law. Public participation has to be built as early as the proposal for a new law is initiated. The formation of a law must fulfill a set of principles, including a clearly defined purpose, detailed formulation stages and transparency. If these principles are not fulfilled, the bill will become flawed and potentially come short of being passed on.
Marginalization and “super body”
Regarding medical practices, there are at least two crucial issues in the proposed health bill. The first is the marginalization of professional organizations. The bill carries provisional articles that are indicative of fragmentation and amputation of the role of professional organizations. Article 296 Paragraph 2 states that each specified group of health workers can only form one professional organization. This ruling is actually good. Unfortunately, there are paradoxical stipulations in other articles that appear to be stifling the ruling on professional organizations.
Article 184 Paragraph 1 classifies health workers into 12 groups, such as medical personnel and nursing personnel. Each group of health workers is further split into several sub-groups. The medical personnel group, for example, consists of sub-groups of doctors, dentists, specialists and specialist dentists. In the end, there are 48 classifications of health workers.
Which option will apply: one professional organization for each group of health workers (first option) or for each sub-group of health workers (second option)? Ironically, either option will fragmentize professional organizations. Regarding medical personnel, for example, if the first option applies, there will only be one professional organization for the professions of doctors, specialists, dentists and specialist dentists. All these professions will be under one umbrella. This option would create ambiguity because doctors and dentists are two different professions. The vision, mission and aspirations of the two cannot be incorporated.
The bill carries provisional articles that are indicative of fragmentation and amputation of the role of professional organizations.
The second option would make the professional organizations of general practitioners and specialists separate from each other. Likewise, dentists would be separated from specialist dentists. This is not an appropriate choice because it will separate two elements that actually have the same duties, responsibilities, as well as ethical and professional standards. Specialist doctors are a continuum and an integral part of the medical profession.
If the second option applies, there will be 48 professional organizations. Having too many organization will contradict Article 296, which seeks to minimize the number of professional organizations.
In this bill, the IDI and PDGI, which are recognized by the government as a doctors association and dentists association, respectively, will also disappear, with the government seeking to claim the authority to determine a recognized professional organization for each health worker group. This condition will provoke the emergence of various professional organizations that beg for government recognition.
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Inter-organizational competition will ensue, and the bargaining position of professional organizations will be weakened. The bill should explicitly state that recognition is only for one professional organization of doctors, one organization of dentists and one each for other health workers, such as nurses, midwives and pharmacists. Multi-professional organizations will only lead to prolonged conflict. The government should learn from the conflict in the radiology society, where dozens of radiologists did not obtain a Registration Certificate (STR) due to divisions in the radiology collegium.
In addition, the bill revokes the role of professional organizations. To apply to practice, a health worker will only need to include an STR, practice domicile and competency document. A health certificate and recommendation letters from professional organizations are no longer needed. Without a health certificate, how will the physical and mental shape of the practice-proposing health workers be screened? Without recommendation letters from professional organizations, how do we know that a health worker has never committed administrative, ethical or moral violations?
Second, ministers and ministries would become super bodies under the bill. They would determine all health domains, from upstream to downstream. They would be authorized to initiate, create and ratify educational, competency and service standards. Article 235 states that health education standards are prepared by the minister, although the collegium, which is an overseeing body established by the professional organization, may be involved in its preparation.
The roles of professional organizations and collegium now disappear. In fact, in Law No. 29/2004, educational standards are jointly formulated by associations of educational institutions, collegium, associations of educational hospitals, the Education and Culture Ministry and professional organizations. Competence standards in the bill are also set by the minister (Article 197 Paragraph 3). In fact, competence is a technical and professional domain belonging to the collegium.
The collegium, not minister, determines whether a health worker is competent or not. The change has been brought about to such an extent that the management of more specialized education or training through professional credit units will also be carried out by the ministers and local governments. This is strange. In other countries, the authority to provide more specialized education is carried out by professional organizations or work providers, not the government.
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Another thing, in Article 239 of the bill, the Indonesian Medical Council (KKI) is responsible to the minister, whereas its is currently an autonomous and independent body that is directly responsible to the president. The placement of the minister as the KKI's superior made this important institution less independent and its bargaining position weaker.
The role of ministers in the bill is too broad and beyond professional boundaries. With this super body ministerial role, the bill will leave healthcare services in a centralized power system. In fact, in the current era, the centralization system should be abolished because it has proven to be less effective and efficient. In many other countries, the powers and role of the health sector are shared proportionally among professional organizations and other stakeholders. The pie of responsibility is split in order to create a balance of participation. This will ultimately induce the collaboration and inclusion that characterizes public participation in the modern world.
This bill is moving backward because the minister has intervened too far in the role of professional organizations and civil society, which should be an integral element of the country's health development.
‘Red flag’
The outcry against the health bill is a signal of irregularities in the legislation process. Instead of giving the prospect of common thread, the bill has become a “red flag” that signifies irregularities and problems and has the potential to degrade the health system.
Legislation that will affect the lives of many people, especially in relation to health, should actively involve the existing stakeholders. Their opinions and concerns need to be heeded and considered. Communication cannot be partial, engaging only those deemed to be under “one flag”. The principles of impartiality and objectivity must be upheld so that the law produces positive, objective and equitable values. The greater the participation of community and professional organizations, the more easily the law will be accepted.
Legislation does not need to be rushed either. There is currently no element of urgency to accelerate the enactment of the health law. These principles need to be heeded. If not, it is very likely that the health bill will turn to have the same fate as the Job Creation Law, which is now considered formally flawed and unconstitutional by the Constitutional Court.
Iqbal Mochtar
Iqbal Mochtar, Board member of the Indonesian Doctors Association (IDI) and the Indonesian Public Health Experts Association (IAKMI), chairman of the Middle East Indonesian Doctors AssociationThis article was translated by Musthofid.
