gratification and fraud in healthcare services from
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GRATIFICATION AND FRAUD IN HEALTHCARE SERVICES
FROM INDONESIAN CRIMINAL LAW PERSPECTIVE1
Aroma Elmina Martha2
ABSTRACT
Gratification and fraud in healthcare services began to be a concern since the
attention of the Corruption Eradication Commission (KPK) on information
alleged gratification by pharmaceutical companies, the fraudulent use of the
Healthcare and Social Security Agency (BPJS Kesehatan) abused in health
services. This paper was conducted with the aim to know the normative aspects of
gratification and fraud in healthcare services from the Indonesian criminal law
perspective and the role of the State in preventing gratification and fraud in the
context of deterrence principles. The nature of the law itself lies in the element of
that commandment. The superior determines what is allowed or not. The superior
power forces others to obey and direct others’ behavior as they expect, which may
be wise and just or otherwise. By using the normative juridical approach, it can be
concluded first, if studied from the perspective of Austin, regulatory aspects
through the efforts of deterrence which put forward by the state in healthcare
services has fulfilled the elements of command, duty and sanction in minimizing
the occurrence of gratuities and fraud. Second, as a regulator, the role of the state
is crucial to the settlement of gratification and fraud problems, and the deterrence
expected is that the criminal carries good, the criminal prevents the worse
incident, and there is no other alternative that can give an equally good result
should be sought to minimize the occurrence of gratuities and fraud in Indonesia.
As it is in the same line with the purpose of criminal law as ultimum remedium.
Key Words: Healthcare, Deterrence, Criminal Law
INTRODUCTION
Recently, Tempo magazine conducted a number of investigations of alleged
gratification of doctors from pharmaceutical companies which then get a response
from the KPK. Tempo found the recognition that the pharmaceutical company
issued bribes to doctors. The goal is that the drugs produced by the company
prescribed by the doctor to be given to the patient. 3 In the investigation in 2015, it
1 Paper presented at The International Conference on Fraud and Gratification in Healthcare Service
Across Jurisdiction. Postgraduate Program Faculty of Law, World Association for Medical Law
and Medical Faculty Islamic University of Indonesia, Yogyakarta Indonesia 6th November 2017. 2 Lecturer at Faculty of Law Islamic University of Indonesia, Tamansiswa 158 Yogyakarta,
[email protected] 3 (https://m.tempo.co/read/news/2016/09/15/078804482/kpk-curigai-perusahaan-farmasi-pasok-rp-
800-m-kepada-dokter)
2
was found the transaction of pharmaceutical trade through Rp 69 trillion.4 The
data indicated the existence of alleged gratification in health services in Indonesia.
The investigation is still limited and suggests three possibilities: first, this case
only indicates an allegation but has not yet entered the context of pro justicia.
second, still not got evidence that leads to gratuities and third, deterrence effort is
being pursued by the state (still limited to warning from KPK).
Generally, perception of gratification actually means neutral understanding.
Gratification is not a bribe but a gift. Especially in Indonesia giving a gift is an
ordinary eastern custom of society as a form of hospitality. Gratification is a form
of courtesy to respect each other and a reasonable action. Gratification is bribery
under criminal law when it relates to a position and is inconsistent with the
obligations and duties of the recipient. Some questions that arise in the context of
gratuities such as if viewed from the view of the behavior of propriety and
fairness, how to determine the criteria of civil servants or state officials who may
receive gratuities. In addition, what about the gratification giver, although there is
no transactional relationship, is there a causal relationship that has a banned
effect?
In contrast to Fraud, in fraud there are elements of greedy, the opportunity to
commit fraud, need to avoid losses and the effect of exposure has existed since
the fraud committed. For comparison in the United States, for example, the type
of fraud most often performed by providers is falsifying diagnoses and the date of
health services that reaches 43% of cases. In addition, fraud committed to increase
claims by making bills on services that are not given to reach 34%. 5 Although
gratification and fraud are different, but these two terms are a trend topic because
these irregularities are suspected to occur frequently in criminal law studies
related to health services.
This paper raises important questions, including:
1. What are the normative aspects of gratification and fraud in health services
from the perspective of Indonesian criminal law?
4 Ibid 5 afai.org/lafai-21112/index.php/berita-lafai/items/fraud-dalam-pelayanan-kesehatan-dan-
asuransi-kesehatan.htm
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2. How is the role of the state in preventing gratification and fraud in health
care services in the context of deterrence ?
LITERATURE REVIEW
This Essay will look further at the extent to which aspects of regulatory
arrangements and the role of states in settling gratification and fraud issues. In the
criminal law principles the starting point of the norms of a society law depends on
shared values or with respect to collective awards (sinngebungen) about what
interests and who wants to be protected based on what is good, right and therefore
worthy to be achieved.6 This relates to Wolfenden's idea that the function of the
law is to maintain public order and decency, to protect citizens from harmful
abuses and provide protection against exploitation and corrupt behavior.7 This
essay will also analyze from Austin perspective8 on the role of the state towards
settling gratification and fraud issues in health care. Therefore, deterrence9
becomes relevant in the context of seeking justification for criminal prosecution.
From this perspective, crime prevention is the main purpose of criminal
prosecution, assuming that a crime is a behavior (either actual or potential) that
results in a loss, then it is appropriate that the perpetrator bears a loss as well. This
should be done in order not to happen or cause greater losses in the future. This
school is instrumentalist and forward-looking, and emphasizes the principle of the
benefit of criminal imposition.
RESULTS AND ANALYSIS
1. NORMATIVE ASPECT OF GRATIFICATION AND FRAUD IN
HEALTH SERVICES FROM PERSPECTIVE OF INDONESIAN
CRIMINAL LAW
In the general context, the definition of gratification is "a voluntarily given
reward or recompense for a services or benefit; a gratuity.10 In the official
6 Jan Remmelink.2004. Hukum pidana. Gramedia pustaka utama, p.3 7 Bloy and Parry’s. 2000. Principles of Criminal Law. Cavendish Publising: Great Britain. P. 7 8 Llyod’s. 2001. Introduction to Jurisprudence. Sweet and Maxwell Limited: London. P. 2015 see
Theo Huijbers. 1982. Filsafat hukum dalam lintasan sejarah. Kanisius Publisher:
Yogyakarta.p.136- 137 9 Antony Duff dan David Garland. 1995. A reader on Punishment. Oxford university press: UK. p.
6 –7 10 Bryan A. Garner. (1999). Blacks Law Dictionary.ST. Paul Minn: USA p. 708
4
Indonesian dictionary, gratification is defined as giving money to employees
outside the prescribed salary. Gratuities are part of a criminal act of corruption
under certain conditions when civil servants and state apparatus receive gratuities
and do not report to Corruption Eradication Commissions within 30 days of
receiving gratuities. In the context of criminal law, especially with regard to
corruption, the notion of gratification is not exactly the same as contained in the
official Indonesian Dictionary or the Law Dictionary. Gratification issues are
specifically regulated in Law no. 31 of 1999 jo Law no. 20 of 2001 on article 12 B
on elements of gratification and the burden of proof and criminal sanctions and
article 12 C on the requirements of prosecution about the eradication of criminal
acts of corruption. Referring to the provisions above, then the element of
gratification of criminal act is: Any gratification for a civil servant or state
apparatus shall be considered as a bribe when it has something to do with his / her
position and is against his / her obligation or task.
This Article defines a criminal act by accepting a gift as a result of doing or
not doing something in his / her position. The term gift or promise is widely
interpreted includes something of value to the recipient (gift) and something to be
followed up in the future for the civil servant's purpose as the recipient.11 The
intended benefits can be money, goods or activities that are profitable, but can
also be immaterial goods such as jewelry.
In the explanation of the law, it is stated that Gratification "is payments or
gifts in broad sense, including money, goods, discounts, recompense, interest-tree
loan, travel ticket, lodging, tour, free medicine, and other facilities. Gratification
received at home or from broad and the gratification using electronic device or not
using electronic device.12
The gratifcations include elements of giving to civil servants and state
aparatus with elements:
1. The granting of such gratification relates to the position of the civil servant
or state apparatus receiving the gift, means that the grantor has a will or
interest relating to the position of the recipient.The granting of such
gratification is contrary to the obligations or orders of the civil servant or
11 Article 12 letter b Constitution No. 20 Year 2001 about Eradication of Corruption 12Ermansyah Djaja. (2010). Tipologi Tindak Pidana Korupsi. Mandar Maju: Bandung.p.184
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the state apparatus with the remuneration as reciprocity of the granting of
gratification which has been received, even if the gratuity recipient has no
direct or even contrary authority to his duty.
2. The element of the provision that: a. when the gratification amount is up to
Rp. 10.000.000 (ten million rupiahs) or more, it is the recipient of the
gratification who shall prove that the gratification is not a bribe; b. when
the gratification amount is less than Rp. 10.000.000 (ten million rupiahs),
it is the public prosecutor who shall prove that the gratification is a bribe.
The element of the provision that: a. when the gratification amount is up to
Rp. 10.000.000 (ten million rupiahs) or more, it is the recipient of the
gratification who shall prove that the gratification is not a bribe; b. when
the gratification amount is less than Rp. 10.000.000 (ten million rupiahs),
it is the public prosecutor who shall prove that the gratification is a bribe.
While the requirements of prosecution: 1. The provisions of criminal act
gratification shall not be valid if the recipient reports the gratification to KPK
(Corruption Eradication Commission). 2. The recipient of gratification shall
convey the report as referred to in conduct no later than 30 working days after
the gratification is received 3. The commission for corruption eradication shall
decide whether the gratification belongs to the recipient or the state within a
period of 30 (thirty) working days.13
Furthermore, the criminal act of gratification is different from the criminal act
of bribery corruption and extortion. Gratuities are passive bribes, in the criminal
act of gratification there is no agreement or deal how much the value of money or
valuable things are done, the delivery and who and when the money or valuables
were submitted, between the gratification with civil servants and legal apparatus
who received gratuities.
In the act of bribery there is a deal about how much the value of money or
valuables is done in the form of handover of money and valuables, and who and
when the money or valuables were handed over. In blackmail, despite the
13 A civil servant or state apparatus who is found guilty of the criminal offense as referred to
inparagraph (1) shall be sentenced to life imprisonment or a minimum of 4 (four) year's
imprisonment and a maximum of 20 (twenty) year's imprisonment and be fined a minimum of
Rp200,000,000 (two hundred million rupiahs) and a maximum of Rpl,000,000,000 (one billion
rupiahs).
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occurrence of the handover of money or precious objects the occurrence is caused
by compulsion. Thus, the gratification means a gift in the broad sense, where civil
servants or state apparatus are passive, while the gratification giver14 is more
active because in gratification there is no deal between civil servants or state
apparatus with the gratification giver.
In addition, in a bribe there is a transactional element between the giver and
the receiver of a bribe. There is a connection to personal promises and giving.
Unlike the gratification, the transactional element is not present at the time of
gratuity, so the gratification giver is not convicted. Only the gratuity recipient can
be convicted, if a bribe has occurred then the new bribe giver can be convicted.
Furthermore, the Ministry of Health has issued Regulation of the Minister of
Health (Permenkes) number 14 of 2014 on Gratification Control and Health
Minister Decree (Kepmenkes) number HK.02.02 / Menkes / 306/2014 on
Gratification Control Technical Directive In order to support gratuity reporting,
the Ministry of Health has developed a gratuity reporting application that can be
used by all apparatus within the health ministry. Minister of Health Decree
Number HK. 02.02 / MENKES / 306/2014 describes two categories of gratuities
considered to be bribes, i.e. gratifications received by the ministry of health
apparatus associated with the occupation and contrary to the obligations and
duties of the recipient 15such as marketing fee or transactional reward related to
marketing of a product, cashback received by agency used for personal benefit,
14 Article 5 of Corruption Law
(1) shall be imprisoned for a minimum of 1 (one) year and a maximum of 5 (five) years and or a
fine of at least Rp 50,000,000.00 (fifty million rupiah) and a maximum of Rp 250,000,000.00 (
two hundred and fifty million rupiah) any person who:
a. give or promise something to a civil servant or state organizer with the intention that the civil
servant or the organizer of the state undertakes or does not do anything in his or her position,
which is contrary to his obligations; or
b. giving something to a civil servant or state organizer because of or in connection with something that is contrary to the obligations, done or not done in his / her position.
(2) For civil servants or state officials receiving the gifts or appointments referred to in paragraph
(1) a or b, shall be subject to the same criminal punishment referred to in paragraph (1) 15 Article 4: Gratification which is considered as bribe includes acceptance which is not limited to:
1. Marketing fee or transactional rewards associated with marketing of a product. 2. Cashback or
return in any kind resulting from transaction, received by agencies and used for personal use. 3.
Gratuities related to the procurement of goods and services, public services, and other processes. 4.
Sponsorship related with marketing or research of a product. 5. Gratuities related to public
services. Regulation of the Minister of Health (Permenkes) number 14 of 2014 on Gratification
Control and Health Minister Decree (Kepmenkes) number HK.02.02 / Menkes / 306/2014 on
Gratification Control Technical Directive
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gratuities related to procurement of goods and services, public services and
sponsorship related to marketing or product research16, while gratification that is
not considered as a bribe is a gratification received by the ministry of health
apparatus that is not related to the position and not contrary to the obligations and
duties of the recipient 17 which has been determined in Kepmenkes no HK.02.02 /
Menkes / 306/2014 on the Gratification Control Technical Directive. In the
provisions of this Regulation of the Minister of Health also contains the
provisions of the Gratification Control Unit of the Ministry of Health (UPG) on
duty as a unit that performs analysis, reporting, monitoring and evaluation to the
KPK regarding the existence of Gratification.18
In gratification there is a relationship between three parties: the civil servant /
state apparatus that gains profit, the public organization, and the person who
causes the civil servants who benefit from his/her criminal conduct. In the subject
category of the offender in a gratification criminal act, this subject consists of civil
servants and state apparatus. 19 Health servants are included in the criteria of civil
16 Regarding sponsorship, there is Minister of Health Decree No. 58 year 2016 about Sponsorship
for Health Workers. Article 1 and 2: health personnel with civil service status may receive
sponsorship but must go through their institution see article 10: received sponsorship must be
reported to the KPK receiving no later than 30 (thirty) working days after receiving sponsorship 17 Gratification that is not considered as bribe is gratuities that is received by the apparatus of
Ministry of Health that is not related to the position and not contrary to the duties and obligations
and the receiver of gratuities which is not considered as bribe unrelated to the official. 18 Receiving gratification report from UPG Main Unit and UPG Technical Implementation Unit; b.
performing processing analysis of each gratification report received.; c. performing direct
confirmation of the gratification report to the complainant relating to the gratification; d.
determining and providing recommendation on the handling and utilization of gratification that is
not considered as bribe related to the official.; e. conducting coordiantion, consultation, and
correspondence with KPK on behalf of the Ministryof Health; f. monitoring the follow-up on the
recommendations and utilization of gratuities provided by UPG Main Unit and UPG Technimal
Implementation Unit or KPK; g. requesting data and information to certain work unit and
apparatus of Ministry of Health related to monitoring the implementation of the gratification
control program; h. providing follow-up recommendation to Inspectorate General, in case of
violation of Ministerial Regulation by Ministry of Health; and i. reporting the result of
gratification report handling in the Ministry of Health to Minister of Health and KPK.Article 8 Regulation of Minister of Health number 14 year 2014 about Gratification Control within the
health ministry 19 Article 1 number (2) Corruption Eradication Act, civil servants included in the definition of
public servants, i.e. all persons elected in particular election held under general rules, as well as all
persons who for any other matter than an election shall be members of legislature, government
body, or representative body of the people held by or on behalf of the government, as well as all
members of an irrigation council and all the leaders of the indigenous people as well as the leader
of foreign easterners who legitimately perform their power. (2) Included in the definition of civil
servants and judges, (3) all persons included in the Armed Forces are also regarded as civil
servants. c. persons who receive salaries or wages from the State or regional finances; d. persons
who receive salaries or wages from a corporation that receive assistance from the State of regional
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servants. The scope of civil servants includes those who receive salaries or wages
from other corporations that use capital or facilities from the state or society.
Based on these criteria, health ministry officials as well as doctors working under
government hospitals may include, including private doctors paid from
foundations should also report gratuities.20 In the context of gratification of health
services, first, it is important to mention that the definition of gratification is an
activity undertaken in the course of gifts to a person or corporation for the purpose
of obtaining a reward. Second, there is indeed a gratification relationship between
pharmaceutical companies and doctors.
The further specific issue like: In contexts gratification in transactional
relationship in case of acceptance of gratification in any form from the
manufacturer / distributor of the drug for prescribing the drug for prescribing the
drug both inside and outside the formulary. If referring to the Minister of Health
of the Republic of Indonesia Number 98 of 2015 on the provision of the highest
retail price information, there should be no gratification from the pharmaceutical
company to the health professional. Assumption is whatever gratuities the
pharmaceutical manufacturers have to be calculated officially by the government
and it is the policy of the government. Furthermore, if analyzed, the gratuities of
pharmaceutical companies / medical equipment procurement to medical doctors
are excessive benefits gained and given to doctors and other health care workers.
So if gratuities are to be granted this should be a legal policy of the government.
The consideration is in order to provide benefits for all parties including
pharmaceutical manufacturers, doctors and the public can obtain drugs at
reasonable prices.
The problem is: why is the regulatory system of drug prices and distribution
regulated by government but doctors burdened with gratification problems?
In addition to avoiding prohibited gratification, it is appropriate for the state
to consider awarding healthcare professionals/doctors in the form of performance-
finance; or e. persons who receive salaries or wages from other corporations that use capital or
facilities from the State of society. 20 Persons who receive salaries or wages from the State or regional finance; d. persons who receive
salaries or wages from a corporation that receive assistance from the State or regional finance; or
e. persons who receive salaries or wages from other corporations that use capital or facilities from
the State or society.
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based remuneration. The awards to the Doctor's profession should be given by the
state as a form of appreciation for the profession that protects humanity.
Furthermore, doctors or health care workers should not get negative
stigmatization because of alleged gratification criminal offense.
Unlike the term gratification, the terminology fraud is not known in
Indonesian criminal law. Although there are several categories of deeds covered
in the criminal act of fraud. 21 In fraud there are two parties involved; perpetrators
of fraud and other persons or institutions harmed.22 Fraud is knowing as a
misrepresentation of the truth or concealment of a material fact to induce another
to act to his or her detriment; a misrepresentation made recklessly without belief
in its truth to induce another person to act; a tort arising from a knowing
misrepresentation, concealment of material fact, or reckless misrepresentation
made to induce another to act to his or her detriment; unconscionable dealing 23
The term fraud is actually derived from the Regulation of the Minister of
Health of the Republic of Indonesia number 36 of 2015 on Fraud Prevention in
the Implementation of Health Insurance Program on the National Social Security
System.
BPJS deviation24 is committed by: a. participants; b. BPJS Health officer;
c. providers of health services; and / or d. providers of medicine and medical
devices.25 The most frequent frauds26 in BPJS are usually at the FKRTL stage
21 For instance, . Article 362 about Theft 2. Article 368 about Extortion and Threats, 3. Article 372
about Embezzlement (definition from KUHP: “deliberately and unlawfully possessed of goods of
wholly or partly which belongs to another, but which in his power not because of crime”);4.
Article 378 about fraud 5. Article 396 about Disadvantage Credit Giver in a state f Bankrupcy; 6.
Article 406 about Destroying or Damaging Goods 7. Article 209, 210, 387, 388, 415, 418, 419,
420, 423, 425, and 435 which is specifically regulated in the Corruption Eradication Act (Constituion Number 31 Year 1999). 22Henk Addink dan Gio ten Berge, dari Innovation of Legal Means for Eliminating Corruption in
the Public Service, translate by Aktieva Tjitrawati in Philipus M. Hadjon (et. all) .2012. Hukum
Administrasi dan Tindak pidana Korupsi Gadjah Mada University Press.: Yogyakarta. p.94 23 Bryan A. Garner. 1999. Blacks Law Dictionary.ST. Paul Minn: USA, p. 670 24 Law number 40 year 2004 National Social Security System 25 See article 2,3,4, 5 26 Law number 40 year 2004 National Social Security System,. In the case of fraudulent action of
administrative sanction on the health service can be followed by revocation of license of practice.
Administrative sanction does not eliminate the criminal sanction in accordance with regulatory
requirements legislation.
10
(Advanced Health Care Facilities), 27 this fraudulent behavior is most often done
by the health care provider.28
Upcoding and Readmission is the most common fraud committed in national
health insurance.29 Referring to the BPJS as the organizer, the development of the
JKN Fraud prevention culture is actually part of organizational management as
referred to in Article 13 paragraph (1) letter c based on the principle of: a.
transparency; b. accountability; c. responsibilty; d. independence; and e.
fairness..30 Furthermore, when analyzed through Wolfenden's idea of a holistic
regulatory understanding, it would be relevant to be used to maintain public order.
In the context of providing protection against corruption in society, the regulation
of gratification and fraud as a whole has been regulated in Indonesian criminal
law. However, it is important to discuss fraud in determining the appropriate fraud
criteria. The reason is the term fraud is spread in the Indonesian penal code.
Coordination between legal apparatus is necessary because there is no perception
of any criminal act which can be categorized as fraud in health care terminology,
since the term fraud is stipulated only in the regulation of the minister of health,
but the category of his actions and criminal sanction has not been explained.
27 Health facilities that perfom specialist or subspecialty personal service that include advanced
outpatient care, advanced hospitalization and inpatient care in a special care room (FKRTL) 28 a. the writing of excessive diagnostic code / upcoding; b. claim plagiarizing from other
patients/cloning; c. fake claim/phantom billing; d. inflation of drug and medical devices
bills/inflated bills; e. services unbundling or fragmentation; f. selfs-referals; g. repeat billing; h.
prolonged length of stay; i. manipulating type of room charge; j. cancelled services; k. performing
unnecessary action/no medical value; l. deviation of standard of care; m. performing unnecessary
treatment; n. increase the length of the use of ventilator; o. phantom visit; p. phantom procedures;
q. admission q. readmission; r.conducting patient referral that are not suitable for the purpose to
obtain cerain benefits; s. requesting cost sharing that is not fit with the provisions of the
legislation; and t. any JKN cheating action other than the letter a to letter s. 29 http://www2.jawapos.com/baca/artikel/12732/klaim-setahun-capai-rp-57-triliun-bpjs-waspadai-
fraud 30 Transparancy is the disclosure of information, both in decision-making process and in disclosing
information which fits to the need for prevention of JKN cheating. Accountability is a clear
function of the system structure and accountability of services so that management is implemented
effectively. (4) Responsibility is the suitability or compliance in the management of service to the
principles of a healthy organization in order to prevent JKN cheating. (5) Independence is a
condition in which organizations are managed professionally without conflict of interest and
influence or pressure from any party that is not in accordance with the principles of a healthy
organization in order to prevent JKN Cheating. (6) Fairness is fair and equal treatment in fulfilling
the rights of stakeholders arising under the agreement in the framework of JKN Fraud prevention.
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2. THE ROLE OF THE STATE IN PREVENTING GRATIFICATION AND
FRAUD IN HEALTH CARE SERVICES IN THE CONTEXT OF
DETERRENCE
Law is the command of the ruler of the State. The nature of the law itself, there
is on the element of that command. According to Austin, a law is a command of
superiors and to bind or oblige inferiors. The superior determines what is allowed.
The power of the superior forces others to obey. The superior uses the law in a
way to frighten and direct the others’ behavior to the expected goal. The law
contains commands that are coercive, may be wise and just or otherwise.31
According to Austin, those who has power is the only source of law. Each positive
law is determined directly or indirectly by an individual or a group of persons
from a sovereign political society, in which the legislator is the supreme.
According to Austin, law consists of three elements of command, duty and
sanction.32 The functions of criminal and civil sanction in any society depend
largely on the prevailing social, economic, and political conditions in that society.
In small, undifferentiated societies characterized by value consensus, sanctions are
used to preserve social order by maintaining the status quo and regulating and
controlling social relations. Across different times and places, criminal sanctions
have been designed to serve multiple purposes. Some criminal and civil sanctions
(e.g., monetary fines, victim compensation) are designed for restorative purposes.
In addition, sanctions administered in public places often provide important
symbolic functions by either dramatizing the evil of particular conduct of
illustrating the fairness of legal proceedings.33 A good definition of sanction must
be neutral on the question of whether or not punishment is morally permissible. A
definition is unacceptable if it begs the question one way or the other, with respect
to either the merits of punishment in general or the merits of any kind of
justification of punishment in particular. If, for example, one attempted to
discriminate between punishment and mere private vengeance by saying that
punishment is “authorized” while private vengeance is not, and if part of what one
31 Llyod; 2001. Introduction to Jurisprudence. Sweet and Maxwell Limited: London 1983.p.7-8 32 Llyod’s.. P. 2015 see Theo Huijbers. 1982. Filsafat hukum dalam lintasan sejarah. Penerbit
Kanisius: Yogyakarta.p.136- 137 33 Terance Miethe and Hong Lu. 2005. Punishment. Cambridge University Press: New York, p.4
12
meant by an act’s being authorized was that it was legitimate, than the resulting
definition of punishment would unacceptably beg the question in favor of the
claim that punishment is morally permissible. If one defined punishment so that
part of what made an act a punishment is that it was justified because of its effects
on society, or that is was not justified in this way, than the result would fail to be
neutral with respect to the various competing solutions to the problem of
punishment. In short, we want a definition of legal punishment that respect and
reflect both our beliefs about what counts as punishment and our puzzlement over
what, if anything, renders it morally permissible for the state to punish people.34
Antony Duff and David Garland divide the purpose of criminal punishment
into two major categories: consequentialist and non consequentialist.35 For the
consequentialists, whether or not an action is done depends on the overall
consequences. In summary, if the consequences are good, then the action is true,
but if the consequences are bad, then the action is wrong. Therefore, to seek
justification for punishment, it must be proved that: a) the criminal is grounded in
goodness b) the criminal prevents a worse incident, and c) no other alternative can
yield an equally good result. In this perspective, criminal prevention is the
primary purpose of criminal prosecution, assuming that a crime is a behavior
(either actual or potential) that results in a loss, then it is appropriate that the
offender be subjected to a loss, through a criminal penalty. This should be done in
order not to happen or incur greater losses in the future. This flow is
instrumentalist and forward-looking, and emphasizes the principle of criminal
34 David Boonin. 2008. The Problem of Punishment. Cambridge University Press: New York. p.
p. 5-6
35 Harkristuti Harkrisnowo. 2003. Rekonstruksi Konsep Pemidanaan : Suatu Gugatan terhadap
Proses Legislasi dan Pemidanaan di Indonesia. Pidato pengukuhan Guru Besar. p..11 See
Concept/indicators of this penalty philospohy is based on on the grouping from Antony Duff and
David Garland. 1995. A reader on Punishment. Oxford university press: UK p.6 – hal. 7 It is said by Duff and Garland that“A consequentialist holds that the rightness of wrongness of
any action or practice depends solely on its overall consequences. It is alright if its consequences
are good (at least as good as those of any available alternative), and wrong if its consequences
are bad (worse than those of some available alternative). Whereas, a non-consequentialist, insist
that actions may be right or wrong in virtue of their intrinsic character, indepedently of their
consequences”. See Albert W. Alschuler. 2003.The Changing purposes of criminal punishment: A
retrospective on the past century and some thoughts about the next. University of Chicago See
Tracey L. Meares, Neal Katyal, and M. Kahan. 2004. Updating The Study Of Punishment Stanford
Law Review Symposium: Punishment and Its Purposes Symposium Articles which classifies the
criminal justification theory into: retribution (and its complement, expressivism), deterrence,
rehabilitation, and disposal of capacity (incapacitation ).
13
punishment benefit; a very prominent thing among the classical utilitarian
underlining the greatest happiness for the greater number.36
On the other hand, the non-consequentialist school is more concerned with
the importance of justifying criminal punishment as an appropriate response to
crime. They assume that the wrongness of an action must be based on its intrinsic
character, regardless of its consequences. This view is very strong among
retributivists, Leo Polak, for example, who emphasizes malice non expediat malos
esse, so criminal is the suffering that must be given to the perpetrators of crime.
No exaggeration if this flow is called more intrinsical and backward-looking.37
Austin's theory becomes relevant with regard to the discussion of whether
gratification and fraud contain command, duty and sanction elements. The
functions of criminal and civil sanction in any society depend largely on the
prevailing social, economic, and political conditions in that society. If one defined
punishment so that part of what made an act a punishment is that it was justified
because of its effects on society. This regulatory product is made with the
assumption of gratification in the health service as part of the criminal act of
corruption. Parliament and this Government represent some hope from the ruling
party. Due to the expectations of the authorities, this rule contains an order for
gratuity recipients to report to the KPK no later than 30 days when receiving a
gratuity of Rp. 10,000,000 (ten million rupiah) or more, and the proof that the
gratuity is not a bribe shall be done by the gratuity recipient. Normative study of
this paper obtained data that the state has a fairly complete regulation to anticipate
if there is gratification or fraud in health services. However, the question is that
despite putting forward the deterrence, can it be said that the procedure in the
command is fair? In the context of the role of the state, real gratification policies
can be applied to the drug price regulation policy and its distribution. The prudent
policy of the state in determining reasonable gratification procedures is necessary.
While in fraud, although this term is not known in the penal code (KUHP), but the
sense has been set in various articles.
36 Ibid. p.12, see Antony Duff and David Garland, p.6
37 Ibid.
14
The state's policy of making its own regulation of fraud indicator as well as
gratification through the regulation of health minister has shown that the state
concerns on prevention efforts. In the deterrence it is expected that the criminal
carries good, the criminal prevents the worse incident, and there is no other
alternative that can give an equally good result should be sought to minimize the
occurrence of gratuities and fraud in Indonesia. As it is in the same line with the
purpose of criminal law as ultimum remedium.
3. CLOSING REMARKS
3.1. Conclusion
Based on our results,
3.1.1. In conclusion, this paper finding when analyzed from an Austin
perspective regulatory aspects of health services have been regulated by
the state and fulfilled the command, duty and sanction.
3.1.2. The role of the state against anticipating gratification and fraud allegations
of healthcare services in Indonesia in the context of deterrence goals on
gratuities and fraud on the aspect of healthcare services is fully supported.
3.1.3. Professional standard of doctors in prescribing drugs its really important,
because the main purpose of the doctor is the healing of the patient to be
healthy again
3.2. Recommendation
These are recommendation to the following:
3.2.1. Although there have been arrangements regarding sponsorship to health
personnel but the reward to health service especially doctors in the form of
remuneration based on performance should be done by the state.
3.2.2. The objective of criminal law as ultimum remedium should be considered
as the final settlement of gratuities and fraud in healthcare services in
Indonesia.
Wallahu ‘alam bi asshowab.
15
REFERENCE
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retrospective on the past century and some thoughts about the next.
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Antony Duff and David Garlan. (1995). A reader on Punishment. Oxford
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Bryan A. Garner. (1999). Blacks Law Dictionary.ST. Paul Minn: USA
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Britain.
David Boonin. (2008). The Problem of Punishment. Cambridge University Press:
New York.
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Henk Addink dan Gio ten Berge, dari Innovation of Legal Means for Eliminating
Corruption in the Public Service, translate by Aktieva Tjitrawati in Philipus
M. Hadjon (et. all).(2012). Hukum Administrasi dan Tindak pidana Korupsi
Gadjah Mada University Press.: Yogyakarta.
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Theo Huijbers. (1982). Filsafat hukum dalam lintasan sejarah. Penerbit Kanisius:
Yogyakarta
Terance. Miethe and Hong Lu. (2005). Punishment. Cambridge University Press:
UK
Tracey L. Meares, Neal Katyal, dan M. Kahan. (2004). Updating The Study Of
Punishment Stanford Law Review Symposium: Punishment and Its Purposes
Symposium Articles
National Social Security System Act No. 40 of 2004, (Constitution of National
Social Security System number 40 year 2004)
Law Number 20 of 2001 concerning Amendment to Law Number 31 Year 1999
concerning the Eradication of Corruption (State Gazette of the Republic of
Indonesia of 2001 Number 134, Supplement to the State Gazette of the Republic
of Indonesia Number 4150)
National Social Security (BPJS) Act No. 24 Of 2011, (Law number 24 Tahun
2011 about BPJS)
Corruption Eradication Commission. (2015). Guidelines for Gratification Control
Decree of the Minister of Health of the Republic of Indonesia
Regulation of Minister of Health number 14 year 2014 about Gratification Control
within the health ministry
Health Minister Decree 02.02/MENKES/306/2014 about Gratification Control
Technical Directive in Ministry of Health
Regulation of the Minister of Health of the Republic of Indonesia Number 58 year
2016 on Sponsorship for Health Workers
16
Regulation of the Minister of Health of the Republic of Indonesia Number 36 year
2015 on Fraud Prevention in the Implementation of Health Insurance
Program on National Social Security System
Regulation of the Minister of Health of the Republic of Indonesia Number 98 year
2015 on Providing Highest Retail Price Information on Drugs
Code of Ethics for Medicine in 2012
https://m.tempo.co/read/news/2016/09/15/078804482/kpk-curigai-perusahaan-
farmasi-pasok-rp-800-m-kepada-dokter
http://www2.jawapos.com/baca/artikel/12732/klaim-setahun-capai-rp-57-triliun-
bpjs-waspadai-fraud
afai.org/lafai-21112/index.php/berita-lafai/items/fraud-dalam-pelayanan-
kesehatan-dan-asuransi-kesehatan.htm
ABBREVIATION
KPK : Komisi Pemberantasan Korupsi (Corruption Eradication Commission)
JKN: Jaminan Kesehatan Nasional and BPJS: Badan Penyelenggara Jaminan Sosial. Between
JKN and BPJS is certainly different. JKN is the name of the program, while BPJS is the
organizing body whose performance will be supervised by DJSN (National Social Security
Council / Dewan Jaminan Sosial Nasional)
HET: Harga Eceran Tertinggi/Highest Retail Price
HET: Harga Eceran Terendah /Lowest Retail Price
FKRTL: Fasilitas Kesehatan Rujukan Tingkat Lanjut /Advanced Healthcare Facility FKTP: Fasilitas Kesehatan Tingkat Pertama /First Level Health Facility
KUHP: Kitab Undang-Undang Hukum Pidana /Penal Code
UPG: Unit Pengendali Gratifikasi /Gratification Control Unit
Permenkes: Peraturan Menteri kesehatan (regulation of the minister of health)
Kepmenkes : Keputusan menteri kesehatan (Decree of Minister of health)
AWARDED TO
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Moderotor : 3 SKP
Committee : 2 SKP
dr. Li
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sfir#ih, S.H., M.Hum.
Faculty of Lawity of Indonesia
Dean of Faculty of Medicinelslamic University of lndo
Dr.