MEDICAL CODE AS THE MAIN SOURCE OF CODIFICATION OF LEGISLATION IN SPHERE OF HEALTHCARE OF UKRAINE - Научное сообщество
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MEDICAL CODE AS THE MAIN SOURCE OF CODIFICATION OF LEGISLATION IN SPHERE OF HEALTHCARE OF UKRAINE

22.12.2020 14:34

[Секция 5. Административное право. Административное процессуальное право. Таможенное и налоговое право. Муниципальное право]

Автор: Maruk Tamara Sergiivna, 3-rd year student Educational and Scientific Law Institute Vasyl Stefanyk Precarpathian National University


The Constitution of Ukraine is the primary source of normative legal acts regulating public relations in the field of health care, in particular regarding the provision of medical care. Constitutional norms in the field of health care create a legal basis for human status. It, in turn, includes not only the consolidation of the relevant right, but also the means of ensuring it, which the state has at its disposal and which are embedded in the political and economic systems, as well as its social basis.

Article 49 of the Constitution of Ukraine is devoted to health care and medical care, which enshrines the right of everyone to health care, medical assistance and medical insurance. This rule reflects the requirements of global and regional international legal standards in the field of health care. The problems that the country has to solve at the present stage are the efficiency of the functioning of the institution of human and civil rights, the ability to exercise those rights that are guaranteed primarily by the Basic Law.

Constitutional norms that proclaim a person's life and health, honour and dignity, inviolability and security of the highest social value, rights and freedoms are inalienable and inviolable, in particular in the field of health care, receive substantive and legal implementation throughout the national legal system. .

There are a large number of laws in the field of medicine, but they do not address the issue of an integrated approach to the regulation of relevant public relations. Unfortunately, the country has not had a quantitative transition of legislation to their qualitative and effective impact on the stability of legal security and public health. Additionally, a number of bylaws complicates the issue. Analysing the current state of national medical legislation, we can conclude that it, despite the extreme ramifications, is not systemic. This creates the need for systematization of medical legislation and the creation of a coherent, logical and internally consistent system.

In the general theory of law, there are four main forms of systematization: 1) organization and accounting of regulations; 2) incorporation; 3) consolidation; 4) codification [1, p. 661 – 662; 2, p. 275].

A special, most perfect and highest form of systematization of legislation is, of course, codification, the ordering of legislative material, which aims to rework by eliminating repetitions, contradictions, filling gaps, transforming the nature and direction of the material. This ensures the internal coherence, integrity, system and completeness of the legal regulation of modern social relations. A sign of codification is the creation of a new consolidated legislative act of stable content, which replaces the previously existing regulations on a particular issue [3, p. 44–45; 4, p. 361].

Modern medical legislation also knows the codification approach to the systematization of its norms, which has found its place in the above-mentioned Fundamentals of the legislation of Ukraine on health care. Given the significant change in public relations that has taken place since the adoption of this codified legal act, as well as a large array of medical legislation, which was adopted after the introduction of the Fundamentals and requires internal harmonization of its content, we are convinced that the issue of a single codified legislative act, which would be a single and uniform regulation of public relations in the medical field. Such a function could be performed by the Medical Code of Ukraine [5, p. 74]. 

It should be emphasized that the idea of creating a Medical Code of Ukraine is not new to the legal thought of Ukraine and has already been taught in many scientific papers.

The urgency of creating a codified act is explained by many circumstances, the main ones are: 1) the need for comprehensive reform of the domestic health care system, in particular its legislative support as a foundation for all transformations; 2) the lack of a scientifically sound concept of legislative activity in this area; 3) the desire to ensure an increase in the level of legal education of medical and pharmaceutical workers; 4) assistance and assistance to lawyers during the consideration, resolution of so-called "medical" cases; 5) inconsistency in some cases of certain laws in the field of health care with sectorial legislation; 6) the need for clear regulation of the legal status of physicians and patients; 7) the need for legal regulation of various health care systems (public, municipal, private) [6]. 

In our opinion, the work on the creation of the Medical Code of Ukraine is extremely responsible, requires the involvement of many specialists and will be quite long. The process of codification of current legislation usually takes several years. Many developed countries (Austria, USA, France, Italy, Spain, etc.) in the national legislation on health care have so-called medical or medical codes, the rules of which regulate the relationship between physicians and patients, as well as their relatives, professional relations of physicians between itself, with the administration of health care facilities and government agencies.

The Medical Code should establish the requirements of international standards on human rights, health care, in particular the provision of medical care, because it will continue to be a pillar of medical law in Ukraine - a branch of law that is beginning to develop rapidly in our country.

In our opinion, the Medical Code should include norms that would regulate public relations in the field of medical care, and all other relations in the field of health care should be regulated in other regulations. The Code should be aimed at detailed and comprehensive regulation of these public relations, and it is necessary to exclude or minimize the possibility of those areas of medical activity that are not regulated in this act. We also do not rule out situations when there is a need to regulate some aspects of medical care in certain laws, as the code should contain rules governing the most important and essential issues of the organization, the provision of such care.

Regarding the structure of the Medical Code of Ukraine, it should be noted that according to the legislative technique inherent in the countries of the German branch of the continental legal system, codified acts must have a dichotomous division into general and special parts. The general part should contain norms that reflect the general nature ("spirit") of the entire legislative act and should apply to all legal relations regulated by this Code. A special part should be formed by the rules governing and protecting special legal relations in this sphere [7]. 

Given this, we can offer the following structure of the draft Medical Code of Ukraine:

GENERAL PART

Section 1. General provisions. Section 2. Human and civil rights in the field of health care. Section 3. Legal bases of bioethics, biosafety and medical deontology. Section 4. Legal principles of the health care system (model). Section 5. State regulation (management) in the field of health care. Section 6. Health care financing. Section 7. Medical care and medical services. Standardization of medical activity. Section 8. Rights of the medical worker. Section 9. Health control and supervision. Chapter 10. International health cooperation.

SPECIAL PART

Section 11. Legal regulation of medical care in the exercise of the human right to life. Section 12. Legal regulation of the implementation of reproductive rights and the use of assisted reproductive technologies. Section 13. Legal regulation of prevention and treatment of infectious and venereal diseases. Section 14. Legal regulation of transplantation of organs and other human anatomical materials. Section 15. Legal regulation of blood donation and its components. Section 16. Legal regulation of psychiatric care. Section 17. Legal regulation of pharmaceutical activity. Provision of medicines and medical supplies for certain categories of the population. Section 18. Legal regulation of medical and biological experiments. Section 19. Legal regulation of folk and alternative medicine. Section 20. Legal regulation of palliative and hospice care. Section 21. Legal regulation of medical care for certain physically and socially vulnerable groups. Section 22. Legal regulation of plastic, reconstructive care (cosmetology, sports medicine, etc.). Section 23. Legal regulation of sanitary and epidemiological well-being. Section 24. Legal regulation of sanatorium activities. Section 25. Legal regulation of medical examinations. Section 26. Legal classification of defects in the provision of medical care. Medical error. Iatrogenic pathologies. Section 27. Social protection of medical workers. Chapter 28. Self-government in the field of health care. Section 29. Liability for Violations of Health Care Legislation. Section 30. Final provisions.

Undoubtedly, this is not the final structure of the project. We believe that it could be the subject of further discussions on the draft Medical Code of Ukraine. Having identified the structural features of this legislative act, we can already talk about the specific content of its relevant content. However, it is very important that the norms that fill this structure are not only the result of fruitful cooperation between lawyers and physicians, but also meet common human rights standards and international legal acts, most notably directives and other acts of the World Health Organization. 'I.

Today, health care must give real priority to national policy and, as a result, shape appropriate legal policy in the field of health. Because of such a comprehensive approach, we can talk about creating a unified, comprehensive and comprehensive approach to the development of medical legislation in the future. 

References: 

1. Поляков А.В. Общая теория права: Феноменолого-коммуникативный аспект. СПб.: Юридический центр Пресс, 2003. С. 661–662.

2. Керимов Д. А. Методология права (предмет, функции, проблемы философии права). М.: Аванта +, 2001. С. 275. 

3. Систематизация законодательства в Российской Федерации  под ред. А.С. Пиголкина. СПб. : Юридический центр Пресс, 2003. С. 44–45. 

4. Проблемы общей теории права и государства: Под ред. В. С. Нерсесянца. М.: Издательская группа Норма-Инфра-М, 1999. С. 361. 

5. Красицька Л.В. Цивільно-правове регулювання особистих немайнових прав громадян. Донецьк, 2002. С. 74. 

6. Корсаков С.А. Медицинский кодекс как первый шаг к медицинскому праву. URL: http://med-pravo.ru/Articles/MedLawQuest/MedCode.htm

7. Люблинець О.В. Медичний кодекс як основа в реформуванні охорони здоров’я України. URL: https://www.umj.com.ua/wp/wp-content/uploads/archive/53/pdf/246_ukr.pdf?upload/.


________________

Scientific supervisor: Knysh V., Educational and Scientific Law Institute, Doctor of Law, Associate Professor, Vasyl Stefanyk Precarpathian National University, Professor of the Department of constitutional, administrative and international Law, Ivano-Frankivsk




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