Distinguishing Medical Risk From Criminal Negligence Under Article 440 Of The Indonesian Health Law

Abstract

Article 440 of Law Number 17 of 2023 on Health criminalizes negligence by medical and health personnel that causes serious injury or death, but does not prescribe a sequence for distinguishing inherent medical risk from criminal negligence. This study aims to clarify negligence under Article 440, to assess the evidentiary roles of informed consent and the Professional Discipline Council (Majelis Disiplin Profesi, MDP) and to propose an analytical framework. It uses normative legal research with statutory, conceptual and case approaches. Primary materials include legislation, Constitutional Court Decisions Numbers 156/PUU-XXII/2024 and 293/PUU-XXIV/2026 and Supreme Court Decision Number 233 K/Pid.Sus/2021. Secondary materials include peer-reviewed legal, medical and bioethical literature. The materials are examined through grammatical and systematic interpretation and prescriptive analysis. The study finds that an adverse outcome, a disciplinary breach and criminal negligence are distinct legal questions. It proposes a Five-Step Legal Test covering professional authority, applicable standards, material deviation, causation and the criminalliability threshold. Informed consent is an evidentiary factor, not immunity from liability; MDP findings inform but do not determine criminal guilt. The framework is normative and requires further testing against post-2026 case law.