Legal Legal responsibility in responsibility in

health care.health care.

PLANPLAN

1. Overview of legal responsibility in health care.1. Overview of legal responsibility in health care.2. Jurisdictional forms of human rights in health care.2. Jurisdictional forms of human rights in health care.22..11.. Forensic form of protection of human rights in health care Forensic form of protection of human rights in health care a) the protection of human rights in health care in civil a) the protection of human rights in health care in civil proceedings; proceedings; b) protection of human rights in the health sector in criminal b) protection of human rights in the health sector in criminal proceedings: proceedings: The concept and the crime. The concept and the crime. The offenses that constitute a danger to human life and health The offenses that constitute a danger to human life and health are committed in the area of health care.are committed in the area of health care.c) the protection of human rights in the health sector in c) the protection of human rights in the health sector in administrative proceedings.administrative proceedings.2.2. Extrajudicial forms of human rights in the field of healthy 2.2. Extrajudicial forms of human rights in the field of healthy 3. Not jurisdictional forms of protection of human rights in 3. Not jurisdictional forms of protection of human rights in health carehealth care

Key terms and concepts:Key terms and concepts: punishment crime A criminal Property crime Types of crimes Composition of the crime Step crime Complicity in the crime Criminal liability wrongfulness of the act guilt act Punishability act

participation participation Simple participation Simple participation Sophisticated participation Sophisticated participation necessary defense necessary defense Emergency Emergency arrest arrest Restrictions will Restrictions will Public works Public works Correctional work Correctional work escheat escheat Restrictions will Restrictions will Life imprisonment Life imprisonment Additional penaltiesAdditional penalties

The State recognizes the The State recognizes the right of every citizen of right of every citizen of Ukraine on health care Ukraine on health care

and ensure its protection and ensure its protection (Article 8 of the Law of (Article 8 of the Law of Ukraine "Fundamentals Ukraine "Fundamentals

of Ukraine on Health of Ukraine on Health Care").Care").

Forms of protection of human subjects of Forms of protection of human subjects of medical legalmedical legal

Forms of protection

Jurisdictional Not jurisdictional

Trial ExtrajudicialSelf-defense Alternative Conflict Resolution

Appeal to independent associations

Appeal to professional medical associations

Judicial protection of human Judicial protection of human subjects uniform medical legalsubjects uniform medical legal

Depending on the type of socialrelations in the field of health protection can be:

In civil proceedings

In criminal proceedings

In administrative proceedings

In constitutional proceedings

Article 6 of the Law of Ukraine "Fundamentals of Article 6 of the Law of Ukraine "Fundamentals of Ukraine on Health" right to compensation for Ukraine on Health" right to compensation for

damage caused to health (material and moral), but damage caused to health (material and moral), but also a means to recognize the right to terminate, also a means to recognize the right to terminate,

which gives it, recognize invalid transaction (this is which gives it, recognize invalid transaction (this is true for lawsuits filed in private hospitals).true for lawsuits filed in private hospitals).

The issue of civil claim in the criminal case The issue of civil claim in the criminal case and enjoy art. 28 of the Criminal and enjoy art. 28 of the Criminal

Procedural Code of Ukraine.Procedural Code of Ukraine. Civil action may be brought both during preliminary Civil action may be brought both during preliminary

investigation and inquiry, and during the trial, but before the investigation and inquiry, and during the trial, but before the trial. Denial of claim in civil proceedings deprive the trial. Denial of claim in civil proceedings deprive the plaintiff of right to file the same claim in a criminal case. A plaintiff of right to file the same claim in a criminal case. A person who has not filed a civil action in the criminal case, person who has not filed a civil action in the criminal case, and the person a civil suit which was left without and the person a civil suit which was left without consideration, may bring him in civil proceedings.consideration, may bring him in civil proceedings.

  Simultaneous consideration of the criminal case and a civil Simultaneous consideration of the criminal case and a civil action promotes a full, thorough and impartial investigation action promotes a full, thorough and impartial investigation of the case, more rapid compensation for damage to of the case, more rapid compensation for damage to property crime, makes the victim proving grounds and the property crime, makes the victim proving grounds and the size of the civil action, provides significant procedural size of the civil action, provides significant procedural savings by eliminating duplication in the work of the courts, savings by eliminating duplication in the work of the courts, which inevitably in separate criminal proceedings and civil which inevitably in separate criminal proceedings and civil litigation.litigation.

The issue of civil claim in the criminal case The issue of civil claim in the criminal case and enjoy art. 28 Code of Ukraine.and enjoy art. 28 Code of Ukraine.

Civil proceedings in a criminal case related to improper medical Civil proceedings in a criminal case related to improper medical care, should be brought to the health facility and the accused / care, should be brought to the health facility and the accused / defendant will act as a third party that does not represent defendant will act as a third party that does not represent independent claims of the issue on the side of the defendant independent claims of the issue on the side of the defendant (although analysis of judicial practice gives reason to believe (although analysis of judicial practice gives reason to believe that law enforcement in this context uncontrolled. hence , often that law enforcement in this context uncontrolled. hence , often encountered in court civil proceedings in criminal matters that encountered in court civil proceedings in criminal matters that apply to the defendant / accused) . When criminal charges will apply to the defendant / accused) . When criminal charges will be attracted by a medical professional, dedicated individual be attracted by a medical professional, dedicated individual medical practice , the defendant in a case related to a civil medical practice , the defendant in a case related to a civil lawsuit to be a doctor, who is accused of a crime.lawsuit to be a doctor, who is accused of a crime.

When considering a civil claim in the criminal case of matters When considering a civil claim in the criminal case of matters not regulated by the Criminal Procedure Code of Ukraine, the not regulated by the Criminal Procedure Code of Ukraine, the court may be guided by the relevant rules of the Civil Procedural court may be guided by the relevant rules of the Civil Procedural Code of Ukraine (paragraph 5 of the Supreme Court of Ukraine Code of Ukraine (paragraph 5 of the Supreme Court of Ukraine of 03.31.1989 № 3).of 03.31.1989 № 3).

CrimeCrime

Crime under the Criminal Code of Ukraine Crime under the Criminal Code of Ukraine considered socially dangerous acts that considered socially dangerous acts that

infringe on public order Ukraine, its infringe on public order Ukraine, its political and economic system, property, political and economic system, property,

person, political, labor, property and person, political, labor, property and other rights and freedoms of citizens, and other rights and freedoms of citizens, and

another, under criminal law, a socially another, under criminal law, a socially dangerous act that infringes on order.dangerous act that infringes on order.

Signs describing the presence of Signs describing the presence of crimecrime

General insecurity acts General insecurity acts wrongfulness of the act wrongfulness of the act guilt act guilt act Punishability actPunishability act

Composition of the crimeComposition of the crime

When the offense meant a set of features provided by When the offense meant a set of features provided by the criminal law, defining a socially dangerous act as the criminal law, defining a socially dangerous act as

a crime. This is a necessary condition for criminal a crime. This is a necessary condition for criminal liability. A person shall be criminally liable only if its liability. A person shall be criminally liable only if its

actions constitute a crime, and only for the crime, actions constitute a crime, and only for the crime, legal structure which in its action set. legal structure which in its action set.

Allocate the following elements of the crime, object, Allocate the following elements of the crime, object, objective party, subject, subjective side.objective party, subject, subjective side.

Elements of the offenseElements of the offense

Property crime - that's what sent the offense Property crime - that's what sent the offense may be the property, the person, political, may be the property, the person, political, labor, property rights and freedom of citizens. labor, property rights and freedom of citizens.

The subject of the crime - is an individual, a The subject of the crime - is an individual, a person who has reached a certain age and is person who has reached a certain age and is sane. Sanity of an individual means that he sane. Sanity of an individual means that he understands the nature of his actions and could understands the nature of his actions and could control them.control them.

The Criminal Code of Ukraine in Chapter 2, "Crimes against life The Criminal Code of Ukraine in Chapter 2, "Crimes against life and health" includes such offenses in health:and health" includes such offenses in health:

Improper performance of professional duties Improper performance of professional duties Disclosure of information on medical examination Disclosure of information on medical examination Illegal abortion (stattya134). Illegal abortion (stattya134). Illegal medical activities (Article 138). Illegal medical activities (Article 138). Failure to provide patient care health professional (Article Failure to provide patient care health professional (Article

139). 139). Improper performance of professional duties of medical or Improper performance of professional duties of medical or

pharmaceutical workers (Article 140). pharmaceutical workers (Article 140). Violations of the rights of the patient (article 141). Violations of the rights of the patient (article 141). Unlawful conduct experiments on a person (Article 142). Unlawful conduct experiments on a person (Article 142). Unlawful delivery of prescription authorizing the purchase of Unlawful delivery of prescription authorizing the purchase of

narcotic drugs or psychotropic substances (Article 319).narcotic drugs or psychotropic substances (Article 319).

Improper performance of Improper performance of professional dutiesprofessional duties

causing infection person with HIV or any other causing infection person with HIV or any other incurable infectious diseases ( Article 131 ). incurable infectious diseases ( Article 131 ).

According to this article may be termed such acts : According to this article may be termed such acts : the use of non-sterile , not properly disinfected and the use of non-sterile , not properly disinfected and the option of medical syringes , blood transfusion the option of medical syringes , blood transfusion

victim of HIV- infected without a laboratory victim of HIV- infected without a laboratory diagnosis of HIV infection, the use of other body diagnosis of HIV infection, the use of other body

fluids, cells, tissues and organs without their fluids, cells, tissues and organs without their laboratory research on HIV, the failure of the laboratory research on HIV, the failure of the

leadership of health facility staff of the institution leadership of health facility staff of the institution necessary protective equipment in accordance with necessary protective equipment in accordance with

established standards and KM list .established standards and KM list .

Disclosure of information on medical Disclosure of information on medical examinationexamination

to detect infection with HIV or any other incurable disease. ( to detect infection with HIV or any other incurable disease. ( st.132 ). Details of the results of the medical st.132 ). Details of the results of the medical

examination , the presence or absence of HIV infection in examination , the presence or absence of HIV infection in a person who has passed a medical examination are a person who has passed a medical examination are confidential and constitute a medical mystery. The confidential and constitute a medical mystery. The

transfer of information is allowed only to the person to transfer of information is allowed only to the person to whom they relate , and in cases stipulated by law, as legal whom they relate , and in cases stipulated by law, as legal representatives of the person , health care , prosecution , representatives of the person , health care , prosecution , investigation, inquiry or trial. Disclosure of information investigation, inquiry or trial. Disclosure of information

means that the person required to keep relevant means that the person required to keep relevant information secret, illegal introduces her unauthorized information secret, illegal introduces her unauthorized

persons or their behavior creates conditions that give third persons or their behavior creates conditions that give third parties the opportunity to get acquainted with the relevant parties the opportunity to get acquainted with the relevant

information.information.

Illegal abortion (Article 134).Illegal abortion (Article 134).

Abortion - a wrongful termination of pregnancy a woman in the Abortion - a wrongful termination of pregnancy a woman in the presence of her consent to the operation. Causing death of presence of her consent to the operation. Causing death of

human fetus after physiological started families and the human fetus after physiological started families and the opportunity to direct physical impact on the child's body is not opportunity to direct physical impact on the child's body is not

abortion as murder. Deprivation of life that was out of the abortion as murder. Deprivation of life that was out of the womb as a result of premature childbirth or accident , should womb as a result of premature childbirth or accident , should also be regarded as murder. According to the laws of abortion also be regarded as murder. According to the laws of abortion from 12 to 28 weeks in urgent cases where there is a real threat from 12 to 28 weeks in urgent cases where there is a real threat to the life of the sick woman , carried out by a person who has to the life of the sick woman , carried out by a person who has special medical education, without the consent of the patient or special medical education, without the consent of the patient or his legal representatives for medical intervention. Abortion by a his legal representatives for medical intervention. Abortion by a

person who had no formal medical training, in any case person who had no formal medical training, in any case considered illegal. Abortion is committed by a person with considered illegal. Abortion is committed by a person with

special medical education is punished if two conditions: 1) its special medical education is punished if two conditions: 1) its illegality , and 2) causing lasting health disorders , infertility or illegality , and 2) causing lasting health disorders , infertility or

death of the victim.death of the victim.

Illegal medical activities (Article Illegal medical activities (Article 138).138).

The essence of this crime is that medical activities The essence of this crime is that medical activities are carried out without special permission, and is are carried out without special permission, and is carried out by a person who is no proper medical carried out by a person who is no proper medical education. Health professionals who are engaged education. Health professionals who are engaged in medical activities not in accordance with the in medical activities not in accordance with the

certified specialty documentary should be certified specialty documentary should be recognized by persons who do not have adequate recognized by persons who do not have adequate health education. The above offense is considered health education. The above offense is considered complete after the onset of serious consequences complete after the onset of serious consequences for the patient. In dire consequences should be for the patient. In dire consequences should be

understood causing death, serious injury or understood causing death, serious injury or moderate injury.moderate injury.

Failure to provide patient care Failure to provide patient care health professional (Article 139).health professional (Article 139).medical and pharmaceutical workers are required to medical and pharmaceutical workers are required to

provide timely and quality medical and medical provide timely and quality medical and medical assistance , as well as provide first free emergency assistance , as well as provide first free emergency

medical care in case of accidents and other medical care in case of accidents and other emergencies . Under the valid reasons which exclude emergencies . Under the valid reasons which exclude

liability under this article refers to a variety of liability under this article refers to a variety of circumstances that prevent the employee to provide circumstances that prevent the employee to provide medical care to the patient - an irresistible force , the medical care to the patient - an irresistible force , the state of emergency (such as the need to give priority state of emergency (such as the need to give priority assistance to a seriously ill person) , a disease of the assistance to a seriously ill person) , a disease of the health care worker , no provision for a specific type health care worker , no provision for a specific type

of help skills , knowledge , equipment or drugs.of help skills , knowledge , equipment or drugs.

Improper performance of professional duties of Improper performance of professional duties of medical or pharmaceutical workers (Article 140).medical or pharmaceutical workers (Article 140).

Article 140 may classify such acts : late or incorrect diagnosis Article 140 may classify such acts : late or incorrect diagnosis of the disease , leaving the patient without adequate medical of the disease , leaving the patient without adequate medical

care , blood transfusions another group, leaving foreign care , blood transfusions another group, leaving foreign objects in the patient during surgery , use of improper objects in the patient during surgery , use of improper treatment , inadequate control of medical equipment, treatment , inadequate control of medical equipment, violations of manufacturing, storage or use of drugs , violations of manufacturing, storage or use of drugs ,

Derailment proper medical treatment for patients suffering Derailment proper medical treatment for patients suffering from mental disorders. The crime is considered complete after from mental disorders. The crime is considered complete after

the onset of serious consequences for the patient.the onset of serious consequences for the patient.

Violations of the rights of the Violations of the rights of the patient (article 141).patient (article 141).

The essence of the offense is to conduct clinical trials The essence of the offense is to conduct clinical trials without the written consent of the patient or his legal without the written consent of the patient or his legal

representative, or in respect of a minor or incapacitated representative, or in respect of a minor or incapacitated person , if these actions caused the death or other person , if these actions caused the death or other

serious consequences. According to the laws of clinical serious consequences. According to the laws of clinical trials are conducted only with the written consent of the trials are conducted only with the written consent of the patient - volunteer to participate in the conduct of such patient - volunteer to participate in the conduct of such

trials , and if such a patient is a minor or incapable - trials , and if such a patient is a minor or incapable - with the written consent of the legal representative with the written consent of the legal representative

(with respect to persons aged 15 years or recognized (with respect to persons aged 15 years or recognized incapable - also subject to agreement ). However, incapable - also subject to agreement ). However,

violation of these requirements entail liability under violation of these requirements entail liability under this Article in the event of death of a patient or other this Article in the event of death of a patient or other

serious consequences.serious consequences.

Unlawful conduct experiments on Unlawful conduct experiments on humans (st.142).humans (st.142).

It is illegal to : 1) the medical , scientific and other experiments It is illegal to : 1) the medical , scientific and other experiments on the sick, prisoners, prisoners of war , and therapeutic on the sick, prisoners, prisoners of war , and therapeutic

experiments - of people whose disease is not directly related to experiments - of people whose disease is not directly related to the purpose of the experiment , and 2 ) any experiments that the purpose of the experiment , and 2 ) any experiments that

are conducted without free consent rights and full and are conducted without free consent rights and full and impartial competent patient awareness about the state of his impartial competent patient awareness about the state of his health, the goal of the proposed experiments , the forecast of health, the goal of the proposed experiments , the forecast of possible disease, a risk to life and health , and 3) medical and possible disease, a risk to life and health , and 3) medical and biological experiments on people who do not meet the totality biological experiments on people who do not meet the totality of conditions: a ) the existence of socially useful purpose , and of conditions: a ) the existence of socially useful purpose , and

b) scientific validity , and c) the possible benefits of their b) scientific validity , and c) the possible benefits of their success over the risk of causing serious consequences for the success over the risk of causing serious consequences for the

health or life , d ) transparency and e) conducting them only in health or life , d ) transparency and e) conducting them only in accredited health facilities.accredited health facilities.

Unlawful delivery of prescription authorizing the Unlawful delivery of prescription authorizing the purchase of narcotic drugs or psychotropic purchase of narcotic drugs or psychotropic

substances (Article 319).substances (Article 319).

When a medical professional, not having the necessary When a medical professional, not having the necessary powers or going beyond their duties , the person writes powers or going beyond their duties , the person writes a prescription for the right to purchase narcotic drugs or a prescription for the right to purchase narcotic drugs or psychotropic substances or doing it in violation of the psychotropic substances or doing it in violation of the rules of prescription . Doctors prescribe prescriptions, rules of prescription . Doctors prescribe prescriptions, usually after examination of the patient and must make usually after examination of the patient and must make

a record of prescribing in the medical records. Drug a record of prescribing in the medical records. Drug prescription forms issued to a special form , which, in prescription forms issued to a special form , which, in addition to a doctor, signed by the head of the medical addition to a doctor, signed by the head of the medical

institution or his deputy and stamped . Issuing institution or his deputy and stamped . Issuing prescriptions authorizing the purchase of narcotic or prescriptions authorizing the purchase of narcotic or

psychotropic drugs to individuals suffering from drug psychotropic drugs to individuals suffering from drug addiction or substance abuse is strictly prohibited.addiction or substance abuse is strictly prohibited.

Contacting of health care institution is not Contacting of health care institution is not a prerequisite for the complaining to the a prerequisite for the complaining to the appropriate higher authority vertically appropriate higher authority vertically

executive or local authority.executive or local authority.

Complaint - is not just a Complaint - is not just a "letter", which you can "letter", which you can answer or not to answer, answer or not to answer, and this appeal, which and this appeal, which confers on the recipient a confers on the recipient a number of statutory number of statutory obligations and obligations and consideration which consideration which suggests that the suggests that the legislative procedure.legislative procedure.

For timely and effective response to a For timely and effective response to a complaint must comply with the following complaint must comply with the following

postulates:postulates: 1) the complaint must be justified; 1) the complaint must be justified; 2) to file a complaint must be timely; 2) to file a complaint must be timely; 3) apply to any complaint better in 3) apply to any complaint better in

writing; writing; 4) send the complaint to the 4) send the complaint to the

competent authority or official competent authority or official 5) You should not assume that a 5) You should not assume that a

complaint can harm the patientcomplaint can harm the patient

The subject of the complaint for the review The subject of the complaint for the review of administrative proceedings may take one of administrative proceedings may take one

of the following decisions:of the following decisions:

cancel or modify cancel or modify the contested the contested decision in the decision in the cases stipulated by cases stipulated by the legislation of the legislation of Ukraine, if they do Ukraine, if they do not comply with not comply with the law or other the law or other regulations;regulations;

explain the explain the procedure for procedure for appealing the appealing the decision in the decision in the case of declaring case of declaring or complaints or complaints unsubstantiatedunsubstantiated

The key reasons for excluding criminal The key reasons for excluding criminal responsibility are:responsibility are:

person has committed a crime for the first person has committed a crime for the first time; time;

committed minor offense (an offense for committed minor offense (an offense for which punishment of imprisonment for a which punishment of imprisonment for a term not exceeding two years, or else a term not exceeding two years, or else a more lenient sentence) or careless crime more lenient sentence) or careless crime of medium gravity (an offense for which of medium gravity (an offense for which punishment of imprisonment for a term punishment of imprisonment for a term not more than five years); not more than five years);

person who commits an offense shall person who commits an offense shall reimburse damages or eliminates damage.reimburse damages or eliminates damage.

REFERENCES:REFERENCES: Byrne J. , Cohen , J., T. Ezer , J. Overal , Senyuta I. Human rights Byrne J. , Cohen , J., T. Ezer , J. Overal , Senyuta I. Human rights

in health care : a practical guide / by science. Ed .. I.Senyuty . - in health care : a practical guide / by science. Ed .. I.Senyuty . - Lviv : Type of LOBF "Medicine and Law" , 2012. - 552 p.Lviv : Type of LOBF "Medicine and Law" , 2012. - 552 p.

Bratanyuk L.E. Basics of law and legislation in public health : a Bratanyuk L.E. Basics of law and legislation in public health : a textbook . - 2nd ed. correct . - K. : Medicine , 2011. - 544 p.textbook . - 2nd ed. correct . - K. : Medicine , 2011. - 544 p.

  Hops I., Mickle B.V., A.I. Artemenko Fundamentals of Health Hops I., Mickle B.V., A.I. Artemenko Fundamentals of Health Legislation of Ukraine / / National Medical University named after Legislation of Ukraine / / National Medical University named after A.A.Bogomolets . Department of Forensic Medicine. - Kyiv - 2010.A.A.Bogomolets . Department of Forensic Medicine. - Kyiv - 2010.

Constitution of Ukraine ( as amended by the Law N 2952 -VI Constitution of Ukraine ( as amended by the Law N 2952 -VI (2952-17) of 01.02.2011, BD , 2011 , N 10, Article 68 ).(2952-17) of 01.02.2011, BD , 2011 , N 10, Article 68 ).

  Tutorial "medical law of Ukraine" - Stecenko S.G. - 2009Tutorial "medical law of Ukraine" - Stecenko S.G. - 2009   Stecenko S.G., Senyuta I. Legal provision of health care in Ukraine Stecenko S.G., Senyuta I. Legal provision of health care in Ukraine

/ / Right Ukraine . - 2007./ / Right Ukraine . - 2007. www.tdmu.edu.ua – – intranetintranet..