Legal Concept of Child-Friendly Healthcare
The issue of children's rights in the field of health care is always on the cutting edge due to the special subject of legal relations, and the actualization is carried out by a range of different events, either due to international events or national rulemaking. However, Ukraine does not have a comprehensive health care strategy that balances the rights of children and their parents in this area, on the one hand, and on the other - clearly outlines the state map, according to which each specialist, authority could find their own legal path of activity in order to respect the rights of the child and his best interests.
The rights of the child have a long history of legal framework and 2019 was a landmark year, as 95 years have passed since the adoption of the Geneva Declaration of the Rights of the Child, 60 years of the Declaration of the Rights of the Child and the 30th anniversary of the UN Convention on the Rights of the Child. It is these three international "legal whales" that have provided the foundation for the formation of national regulations.
The first international document to mention the special protection of the rights of the child was the Geneva Declaration of the Rights of the Child (1924), adopted by the League of Nations. The rights of children were considered mainly through the prism of measures that had to be taken to overcome slavery, child labor, and child trafficking. The Geneva Declaration stated that a child should have all the necessary means for material and spiritual development. In particular, Art. 2 provided that a hungry child should be fed and a sick person entitled to assistance.
In the Universal Declaration of Human Rights (1948), the UN declared that motherhood and childhood give the right to special care and assistance, and in Art. 10 of the International Covenant on Economic, Social and Cultural Rights (1966) provides for the obligation of States to take special protection and assistance measures for all children and adolescents without any form of discrimination.
In 1959, the UN adopted its first special document, the Declaration of the Rights of the Child, which proclaimed social and legal principles concerning the protection and well-being of children. The preamble to the Declaration states that a child, due to his or her physical and mental immaturity, needs special protection and care, including adequate legal protection, before and after birth. It is this Declaration of the Rights of the Child that has served as the foundation of international standards for the rights of the child, and has helped to establish the special conditions, opportunities and guarantees that a person under the age of 18 needs for a dignified existence and development.
The main points that are important to pay attention to in the context of health and rights of the child are:
- The case law of the European Court of Human Rights on child poverty is rather limited. However, the European Social Charter provides for a wide range of rights that should help prevent poverty. This includes the right to health care, as well as social and medical care. Undoubtedly, child poverty is closely linked to the rights of the child. Yes, it often becomes both a cause for violation of the latter, as well as a consequence of such a violation.
- The situation of child poverty in Europe is very different. Particular attention is paid to 8 countries, including Ukraine, which do not fulfill the obligations imposed on them by the European Social Charter, namely Art. 30, which guarantees protection against poverty and social inequality. The Committee for the Protection of Social Rights points to the direct connection between Art. 30 of the Charter with its other articles.
- UNICEF also emphasizes that poverty is one of the decisive factors in the deprivation of fundamental rights, such as the right to health. Yes, children who grow up in poverty are more likely to be exposed to health problems, early pregnancy, and behavioral deviations.
- The European institutions are working to implement the Guarantees of the Rights of the Child in the European Union, which are part of the European Integrated Plan to Combat Child Poverty, which provides, inter alia, for the right to free health care. The Council of Europe is developing a Strategy for the Rights of the Child.
- The provisions of the Charter on the Prevention of Child Poverty may also apply to migrants (in exceptional cases).
- The provision on access to health care for the whole population also applies to children living in poverty .
On December 27, 2019, the Verkhovna Rada of Ukraine registered a draft Law of Ukraine “On Amendments to Certain Legislative Acts of Ukraine Concerning the Realization of Adolescents’ Rights in the Sphere of Health Care ”for № 2684 . Let us pay attention to the project provision, which is closely intertwined with the procedure for providing medical services in Ukraine in the context of medical reform. This applies to the addition of Art. 32 of the Civil Code of Ukraine (hereinafter - the Central Committee of Ukraine) ("5) independently enter into and perform transactions related to the provision of medical services").
Such a legislative wording seems incorrect from the point of view of the doctrine of civil law.
In our opinion, the child-friendly legal concept of health care is a value-oriented health care system, the core of which is the child, with clearly defined legal guarantees, which protect the rights and freedoms of the child, the relationship between the parties is based on respect. polite, friendly, attentive and individual approach to the child and its inseparable connection with the family, actions in the best interests of the patient, in terms of trust in the doctor.
Aoife Nolan Protecting the Child from Poverty: The Role of Rights in the Council of Europe (report). URL: https://www.coe.int/en/web/european-social-charter/-/protecting-the-child-from-poverty-the-role-of-rights-in-the-council-of-europe (dostup 01.12.2019).
Council of Europe Strategy for the Rights of the Child (2016–2021) Children’s human rights. URL: https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=090000168066cff8 (dostup 01.12.2019).
Специфікація та умови закупівлі пакетів медичних послуг у 2020 році, погоджені Міністерством охорони здоров’я України 21 січня 2020 р. URL: https://nszu.gov.ua/likar-2020 (dostup 22.01.2020) (Spetsyfikatsiia ta umovy zakupivli paketiv medychnykh posluh u 2020 rotsi, pohodzheni Ministerstvom okhorony zdorovia Ukrainy 21 sichnia 2020 r. URL: https://nszu.gov.ua/likar-2020 (dostup 22.01.2020)).
Проєкт Закону України «Про внесення змін до деяких законодавчих актів України щодо реалізації прав підлітків у сфері охорони здоров’я» за № 2684. URL: http://search.ligazakon.ua/l_doc2.nsf/link1/JI01074A.html (dostup 01.01.2020) (Proiekt Zakonu Ukrainy «Pro vnesennia zmin do deiakykh zakonodavchykh aktiv Ukrainy shchodo realizatsii prav pidlitkiv u sferi okhorony zdorovia» za № 2684. URL: http://search.ligazakon.ua/l_doc2.nsf/link1/JI01074A.html (dostup 01.01.2020)).