FRAUD AND GRATIFICATION IN HEALTHCARE SERVICES FROM

INDONESIAN CRIMINAL LAW PERSPECTIVE

Aroma Elmina Martha

Paper presented at The International Conference on Fraud and Gratification in

Healthcare Service Across Jurisdiction, 6th November 2017
Hosted by Postgraduate Program Faculty of Law, World Association for Medical Law
and Medical Faculty Islamic University of Indonesia, Yogyakarta Indonesia
Background
 Investigative reporting from Tempo Magazine (2015)
 The Data show that gratification investigation is still
limited and suggests three possibilities
 In fact, the doctor's profession also deals with
pharmaceuticals, especially medicine.
 Professional standard of doctors in prescribing drugs its
really important
 In contrast to Fraud terminology
 Sinnegebungen principle in the criminal law to starting
point of the norms of a society law depends on shared
values or with respect to collective awards (Remmelink)
 Although gratification and fraud are different, but these
two terms are a trend topic
Questions
1. What are the normative aspects of
gratification and fraud in health services
from the perspective of Indonesian criminal
law?
2. How is the role of the State in preventing
gratification and fraud in healthcare services
in the context of deterrence principle?
1. Normative aspect in healthcare sevices
will be analysis through four indicators:

Indicators: Normative aspect will be

analysis through for
Gratification indicators:
and Fraud Criminal Conduct
Sanction
Criminal Subject
Settlement process
Element Criminal Conduct
Criminal
Gratification Fraud
conduct
is knowing as a misrepresentation
of the truth or concealment of a
is payments or gifts in broad
material fact to induce another
sense, including money,
to act to his or her detriment; a
goods, discounts,
misrepresentation made
recompense, interest-tree
recklessly without belief in its
loan, travel ticket, lodging,
truth to induce another person to
Definition tour, free medicine, and
act; a tort arising from a knowing
other facilities. Gratification
misrepresentation, concealment
received at home or from
of material fact, or reckless
broad and the gratification
misrepresentation made to
using electronic device or not
induce another to act to his or
using electronic device.
her detriment; unconscionable
dealing
 Criminal Gratification Fraud
Conduct
Law no. 31 of 1999 jo Law no.
In fraud, although this term is not
20 of 2001 on article 12 B and
known in the penal code (KUHP),
12 C
but the sense has been set in
The elements of the
various articles..
gratification criminal conduct
Article 362, Article 372, Article 378,
according law number 12 year
Article 396, Article 406, Article 209,
2001:
Regulated 210, 387, 388, 415, 418, 419, 420,
1. Gratification
423, 425, and 435 which is
2. Civil servent and state
specifically regulated in the
apparatus
Corruption Eradication Act
3. Related to his position and
(Constituion Number 31 Year 1999)
against his obligations or
and Consumen Protection Law
duties
Number 8 Year 1999

Article 5 and 6 Regulation of

Minister of Health number 14
year 2014 about Gratification
Control within the health
ministry
Healthcare
Minister of Health Decree No.
regulation
58 year 2016 about
Sponsorship for Health
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
Criminal Subject
Criminal
Gratification Fraud
Subject
In gratification there is a
relationship between three
parties: the civil servant /
state apparatus that gains In fraud there are two parties
Generally profit, the public involved; perpetrators of fraud
organization, and the person and other persons or institutions
who causes the civil servants harmed.
who benefit from his/her
criminal conduct.
 Criminal
Gratification Fraud
Subject
Act 31/1999 jo 20/2001
civil servants and state
apparatus
Generally civil servants includes those
Any person ( Indonesia Penal Code)
Statue who receive salaries or wages
from other corporations that
use capital or facilities from
the state or society
BPJS deviation is committed
Ministry of Health apparatus
by: a. participants; b. BPJS Health
(Regulation of Minister of
officer; c. providers of health
Health number 14 year 2014
services; and / or d. providers of
about Gratification Control
medicine and medical devices.
within the health ministry)
Article 3-6 Regulation of the
Healthcare Minister of Health of the Republic of
Institutions, professional
regulation Indonesia number 36 of 2015 on
organizations, health care
Fraud Prevention in the
facility organizations,
Implementation of Health Insurance
individual health practice
Program on the National Social
personnel
Security System:
(article 10 Health minister
The most frequent frauds in BPJS
58/2016)
are usually at the FKRTL stage
Sanction
Sanction Gratification Fraud

In fraud there are two parties

In gratification, there is involved; perpetrators of fraud
only criminal sanction. and other persons or
institutions harmed.
Ciminal Sanction: Criminal Sanction:
Types Criminal sanction for FKRTL Fraud Process content of
grativication is refer to 20 categorize Article 5 (2)
Article 12b Law 31 year Minister health rules 36 of 2015
1999 jo 20 year 2001 Administrative Sanction:
Refer to Article 28 Regulation
36 of 2015 on Fraud Prevention
 Settlement Process
Gratification Fraud

- Criminal procedure (Act 31

year 1999/jo 20/2001)and
- Administrative procedure
(Regulation of Minister of
Health number 14 year 2014
and (Permenkes) number 14
Types of 2014 on Gratification Criminal procedure (KUHAP) only.
Controland Chapter III Health
Minister Decree (Kepmenkes)
number HK.02.02 / Menkes /
306/2014 on Gratification
Control Technical Directive.
 Regulated on Article 6
Regulation of the Minister of
Health (Permenkes) number 14
of 2014 on Gratification
Controland Chapter III Health
Healthcare Minister Decree (Kepmenkes)
regulations number HK.02.02 / Menkes /
306/2014 on Gratification
Control Technical Directive.
The gratifcations include
elements of giving to civil
servants and state apparatus
Gratification Control Unit:
receive reports, processing
analysis, direct confirmation,
define and recommendation,
coordination, consultation,
monitoring, follow-up
recommendations, report results
Committee
of handlers to Ministry of Health
and KPK
The team consists of: advisors,
directors, responsibilities,
chairmen, vice chairmen,
secretaries, members and
secretariats
Regulated on Article 18 (2) 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
JKN's fraud prevention team: early
detection, socialization of claims data
policy, governance implementation,
capacity enhancement, prevention
efforts, fraud detection and
prosecution, monitoring and
evaluation and reporting
The team consists of: internal
examination, medical committee,
medical recorder
Analysis
 InWolfenden'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.
In healthcare services Fraud,
coordination between legal
apparatus is necessary to determine
categorize terminology fraud since
criminal act only from the minister
health regulation
Data shows that,,,

as long as the information obtained,

there are no cases in gratification even
fraud in healthcare services yet in
Indonesia that is processed in court
 The further specific issue like :
1. Why there are no cases in gratification
even fraud in healthcare services yet in
Indonesia that is processed in court?
2. Why is the regulatory system of drug prices
and distribution regulated by government but
doctors burdened with gratification
problems?
3. How to prove if there is gratification and
fraud in healthcare services by perpetrator?
2. The role of the State in preventing
gratification and fraud in healthcare
services in the context of deterrence
principle
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.
Analysis :
CLOSING REMARKS
1. From an Austin perspective regulatory aspects of health services
2. The role of the state against anticipating gratification and fraud
allegations of healthcare services in Indonesia
Conclusion 3. Professional standard of doctors in prescribing drugs its really
important

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
Recommen should be done by the state.
dation 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 a’lam bi asshowab
THANK YOU

Matur Nuwun

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