Peculiarities of the Dynamics of Medical Relations in Medical Law: Certain Aspects

Abstract

In this paper, the author has clarified the peculiarities of the exercise of the constitutional right to healthcare and medical security under the conditions of martial law and illustrated the boundaries of its exercise. The author has established, that in accordance with the Ukrainian legislation in terms of the proclamation of martial law, the right, which is guaranteed under Art. 49 of the Constitution of Ukraine, is not subject to restriction because of the absence of the constitutional rights, which are subject to restriction in the President’s Order No. 64/2022. Hence, every person has a right to a full scope of medical care under the conditions of martial law without any restrictions, including planned treatment. The author has also researched the normative regulation of the order of engagement of doctors and other medical workers possessing a foreign citizenship to providing medical care to the ones suffered, which are brought to the healthcare institutions, which is full of normative collisions and controversies. The author has established that only those healthcare institutions, whose organisational-legal form is a communal institution, have a right to engage foreign medical workers or people without citizenship. The author has also clarified the communal institutions’ obligations, who engaged volunteers to their activity, namely: a) in a five-term period after the moment of engaging foreigners and people without citizenship, the communal institutions are obliged to inform the National Social Service Institution of Ukraine concerning the afore-mentioned fact; b) to inform the Ministry of Healthcare of Ukraine on the engagement of the foreign medical workers and people without citizenship, who will provide medical care for the suffered ones; c) in case of termination of the foreign medical worker or a person without citizenship to provide medical care to the suffered ones, the said healthcare institutions are obliged to inform the State Migration Service of Ukraine concerning the afore-mentioned fact within the period of five working days. It was also established, that the suffered ones, which are admitted to the healthcare institutions, possess a legal status of the patient, and hence all the guarantees, which are foreseen by the legislation of Ukraine, are preserved. Moreover, upon the provisions of the Law of Ukraine “On volunteer activity”, which is extrapolated on the sphere of medical care, the patients have, inter alia, a right to: a) dignified and humane attitude from the side of volunteers, as well as organisations and institutes, which engage volunteers to their activity; b) the provision of information on their rights and obligations, as well as the conditions of providing them assistance from volunteers; c) the maintenance of the legal regime of information with restricted access, that is the maintenance of the right to medical confidentiality; d) the choice of volunteers, organisations and institutions, which engage volunteers to their activity and the form of provision of volunteer assistance; e) the protection of their rights and legitimate interests in accordance to the law.

The author conducted an analysis of the Ministry of Healthcare’s Order No. 374, which contained a number of controversies, as it introduced a restriction of the constitutional right, determining that the healthcare institutions may terminated planned hospitalisations in case the load of the hospital bed stock excesses 70 per cent of the stock of the therapeutic profile, and 50 per cent of the surgical profile, as well as upon the decision of the structural subdivisions on the issues of healthcare of the regional and Kyiv Municipal Military Administration, considering the tactical situation. The author analysed the term ‘hospitalisation’ from the point of view of the domestic legislation and concluded that it does not encompass planned operations, as hospitalisation presupposes only an admission of the patient to the healthcare institution to provide him or her with medical care. One of the provisions of the Order No. 374 distinguishes planned hospitalisations and planned operations, whereas both of them are different legal constructions by their sensual content. The author presumes, that planned operations were supposed to be included, but only planned hospitalisations were mentioned. The author accentuated that the terms “planned and urgent hospitalisations” and “planned and urgent operations” were barely conceivable. The author also analysed the Ministry of Healthcare’s Order No. 383 relating the engagement of foreign medical workers, which, inter alia, allows the directors of the healthcare institutions to engage foreign medical workers. The preamble of this act designates the Law “On volunteer activity” as a basic legal act. As the said law provides that only non-commercial institutions may engage volunteers, the author concluded that only communal institutions may engage volunteers into their activity. The healthcare provider is obliged to be registered as a legal entity, or a physical person – entrepreneur. This obligation created the conditions, when the budget institutions turned into communal non-commercial enterprises. So, there are nearly no communal institutions, which are healthcare providers. The information from the website of the National Social Service Institution approves this fact. Moreover, the said institutions are obliged to inform the National Service Institution concerning the engagement of volunteers, not the Ministry of Healthcare upon the provisions of the Law “On volunteer activity”. From the provisions of the order, it is also not clear, what type of medical assistance the volunteers could provide to the patients, and what actual qualifications they should possess in order to conduct their activity legitimately. So, the author found, that there is no appropriate normative-legal base, which could regulate the engagement of foreign medical workers and volunteers into the provision of medical care. The author hallmarked that either martial law, or the law on the state of emergency, or a situation of emergency could not be an excuse for the imperfections of the legislative acts, as no appropriate safeguarding of human rights could be built under such conditions, which are already vulnerable and are frequently violated. The conditions of the martial law require clarity and certainty from the legislator in order to create a defensive fortress of human rights.