Region: Asia
Year: 2011
Court: Supreme Court
Health Topics: Chronic and noncommunicable diseases, Health information, Hospitals, Infectious diseases, Informed consent, Medical malpractice
Human Rights: Freedom of association, Freedom of expression, Right to due process/fair trial
Tags: Awareness, Criminalization, Dengue, Health care professionals, Health care workers, Inappropriate treatment, Informed choice, Misdiagnosis, Negligence, Noncommunicable diseases, Patient choice, Public hospitals
On 7 August 2008, the Defendant, Prita Mulyasari, arrived at Omni International Hospital in Tangerang with symptoms of a fever and dizziness. She was then admitted, and through a series of unfortunate events, ended up receiving unnecessary medication and incorrect lab results under the care of Dr. Hengky. Her condition significantly worsened after an incorrect diagnosis. After five days and no improvements, she decided to leave the hospital and relocate to another hospital, on 12 August 2008, where she remained until 15 August 2008.
Mulyasari filed a written complaint with the management of Omni Hospital, which was received by Dr. Grace, the customer service manager. Mulyasari was very displeased with Dr. Grace’s unprofessional management of her complaint, and wrote an email, entitled “The Fraud of Omni International Hospital”, to her close friends and relatives outlining the above chain of events in detail. In particular, the email mentioned the poor treatment from Dr Hengky and Dr Grace’s response, warning Mulyasari’s friends to be cautious if ever they were to receive treatment from them. This email soon spread to the public, and had by the time of the case become a popular issue in the Indonesian media.
The doctors sued Mulyasari for defamation, a criminal offence, punishable by a maximum imprisonment of nine months or a fine (as per Article 310(1) of the Criminal Code). An initial trial began in the Tangerang District Court on 25 June 2009. The Defendant was acquitted in this case. The Prosecution then appealed to the Banten High Court, which quashed the earlier District Court case, and ordered a re-trial. That re-trial was heard again in the Tangerang District Court on 29 December 2009, in which the defendant again succeeded and was acquitted. The prosecution then submitted an application for a cassation hearing in the Supreme Court.
The crucial issue before the Supreme Court was whether or not Mulyasari had a right to send her email. Mulyasari argued that she was merely expressing her opinion about the treatment she had received, and also claimed that she had a right, as a consumer of hospital services, to make such a complaint. She further argued that she never intended the email to spread beyond her close friends. The Prosecution argued that the District Court acquittals had been based on procedural errors, and that Mulyasari should have complained to the Honorary Medical Disciplinary Board of Indonesia instead of sending the email.
The court split 2:1 in favour of the Prosecution. The majority deemed that the email was unnecessary, offensive and defamatory, and not merely criticism of the hospital. They also agreed that the District Court had negligently conducted the proceedings.
The majority judges made very little comment on the Defendant’s arguments, and provided little analysis of the Defendant’s right to freedom of expression. However, they stated that such a freedom must always be balanced with the right to reputation in defamation cases. The judges viewed the damage to the doctors’ reputation as exceeding the defendant’s personal freedom to express an opinion. They ruled that the defendant should have first reported to the Honorary Medical Disciplinary Board. They also agreed with the prosecution’s argument that the defendant’s act was not performed “in the public interest”, because of the frequent explicit references to Dr Hengky in the email.
The Defendant was made to bear all court costs, and was sentenced to six months imprisonment. However, her sentence would be waived unless she committed a punishable crime within one year, as the majority took her lack of understanding of the consequences of her actions, good behavior in court, and clean criminal record to be mitigating factors.
Dr. Salman Luthan dissented, finding the email to be mere criticism. The elements of the email focused on by the majority were not defamatory in the context of the whole email, and the defendant had not intended them to be defamatory, especially as she had circulated them as a private communication.
“The defendant’s email was actually not a criticism made for the public interest so that society could be spared from similar hospital practices and/or doctors who give poor services. Rather the email was uncalled for or unnecessary, such that it was offensive and defamatory. The opposite question should be asked to society as to who else has also been harmed by the practices of Dr Hengky Gosal, Sp.PD” Translation p.35.
“the defendant has proven to have the requisite intention for this crime, even though the full consequences of her actions were not considered before committing the act (dolus eventualis/opzet bij mogelijkheid – ‘the ability to design one’s consciousness’). Thus the defendant is proven to have committed the criminal offence of the First Charge laid by the prosecution, so the defendant must be sentenced.” Translation p.35.