Doctor's testimony needed to explain Sukarno's death

By R. Diah Imaningrum

MALANG, East Java (JP): The cause of Sukarno's death has suddenly become an issue of heated public debate and suspicion after one of his widows, Ratnasari Dewi, alleged that the country's first president was murdered.

Mahar Mardjono of the University of Indonesia -- a member of the medical team which treated Sukarno during his final illness in the late 1960s -- subsequently denied the accusation. He averred from describing Sukarno's ailment in detail due to his respect of doctor-patient confidentiality in the Indonesian Medical Code of Ethics.

This is not enough to satisfy the people's wish to know the truth about Indonesian history, especially concerning the proclaimer of national independence.

If the case goes to court, the most important testimony will be from a witness who is still alive: Sukarno's physician.

Intrinsically, this presents a dilemma because the nature of the relationship between a doctor and his patient is confidential, a principle which the doctor is ethically bound to uphold.

Article 11 of the Indonesian Medical Code of Ethics states: "A doctor shall preserve the secrecy of all he knows about his patient even after the patient has died, due to the confidence entrusted to him."

It is described further in Government Regulation No. 10/1966 on obligations to keep medical confidentiality. "Healthcare service providers, including students at a school of medicine, have an obligation to keep all of what they know about their patients secret, as long as they work in the medical field, except in instances where there is another law of the same or higher degree that determines otherwise."

Up to now, there is no law superseding Government Regulation No. 10/1966. Even Article 322 of the Criminal Code states that people obliged to keep issues secret due to their profession can be condemned if they make sensitive disclosures. Article 53 of Chapter 2 of Law No. 23/1992 on health also ensures the patient's right to medical confidentiality.

Thus, the obligation is binding both ethically and legally for doctors in their treatment of patients.

The problem is whether the obligation can be eschewed for the sake of a greater interest, such as a judicial process.

Ethical systems in the professional world can be either duty- oriented or consequence-oriented. The duty-oriented ethical system -- or deontological, derived from the Greek deon (duty) and logos (discourse) -- requires professionals to focus their reasons for actions on duty.

The consequence-oriented ethical system -- or teleological -- requires professionals to consider the outcomes or consequences of their actions. If the consequences of an obligation, for example, will harm another person, then the obligation can be disregarded.

A landmark example of ethical systems on medical secrecy was the case of Prosenjiit Poddar.

In August 1969, Poddar, a young voluntary outpatient being treated at the University of California in Berkeley, informed his psychologist that he was going to kill a young woman. From working with the young man, the psychologist knew the woman's identity.

After consulting with his superior and a psychiatrist, the psychologist asked the campus police to detain Poddar at a mental hospital for observation. The police put Poddar into custody but soon released him when he appeared normal. The psychologist's superior then withdrew and destroyed all written letters and notes, and ordered no further action on Poddar. No one warned the woman, although she was expected to return to Berkeley soon.

Shortly afterward, Poddar persuaded the woman's brother to share an apartment with him, near where she lived with his parents. Poddar subsequently visited the woman and killed her.

When the woman's parents learned that the psychologist, two consultants and the police had known of Poddar's threat, they sued them. They charged that all three parties were criminally negligent in permitting the release of Poddar from custody without notifying them or their daughter of the danger she was in.

The case presents a conflict of interest between an obligation to keep patient confidentiality and the responsibility to prevent potential harm to someone. In other words, there is a conflict between duty-oriented and consequence-oriented ethical systems. The majority of judges would have a tendency to choose the second as more important.

Which system is followed by Indonesian laws? Government Regulation No. 10/1966, Article 322 of the Criminal Code and Law No. 23/1992 indicate that Indonesian law tends to adhere to the duty-oriented ethical system.

If the cause of Sukarno's death were tried in a court of law, it would be the first legal case concerning medical confidentiality in the country.

Producing evidence is always difficult if a case involves professional secrecy. Can the secrecy be sacrificed for the greater interest? What reasons must be considered to determine the greater interest?

In a court of law, the judge, according to Law No. 14/1970, will have the authority to determine the values of life existing in the society. If there is no law or rule that regulates a case or if the law is incomplete, the judge cannot summarily reject the case, but will be tested to find a pertinent legal precedent.

Conversely, the House of Representatives, as a lawmaking institution, has to analyze and consider the legal precedent used by the judge in order to institute a relevant legal product.

There will be dialectics between the law-finding process and law-making. As long as judges only focus on legislation as a foundation to handle a case, then the process to determine a relevant legal precedent will be less progressive.

The writer is a lecturer in the School of Law at Widya Karya Catholic University in Malang, East Java.