Protection of the rights and freedoms of the patient in the field of healthcare

Human life and health are, of course, the highest value. The level of well-being of the state depends on the state of health of both an individual and the whole society. The health of society has an impact on many domestic processes – from the economy to ensuring national security. Moreover, life expectancy, which is influenced not least by the health of the population, is included in such an important marker of the state's assessment as the human development index. According to the data of the Analytical Center under the Government of the Russian Federation, as of 2022, the human development index in our country is 0.824, which is comparable to such states as Brunei or Romania.

Thus, the State at the constitutional level, recognizing human life and health as priority objects of protection, establishes various social and legal mechanisms for the protection of these benefits, including guarantees of proper medical care. However, despite the efforts being made, in modern conditions it is still possible to state the insufficient effectiveness of medical care for the population, which, in addition to objective logistical difficulties, is often explained by subjective factors. In the legal literature, among these are a number of circumstances [1]. For example, studying the causes of criminalization of medical activity, N.V. Miroshnichenko explains the inefficiency of providing medical services by "unfair attitude of doctors to their professional duties, unjustified refusal of medical care or its incomplete provision, unlawful interference of medical workers in the physiological processes of patients".

The entire system of economic and socio-legal guarantees of personal security is designed to counteract these negative factors, among which a special place is occupied by a set of relevant norms at the international and domestic levels. It should be noted that currently, in our opinion, the legislator has established a fairly consistent mechanism for protecting the rights and freedoms of the patient, regulated by both private law and public law branches of law. First of all, article 41 of the Constitution of the Russian Federation establishes the basic guarantees of human rights to medical care. They consist in the fact that "everyone has the right to health protection and medical care. Medical care in state and municipal healthcare institutions is provided to citizens free of charge at the expense of the relevant budget, insurance premiums, and other income".

An important place in the system of regulatory legal acts regulating the mechanism for protecting the rights and freedoms of patients is occupied by Federal Law № 323-FL dated November 21, 2011 "On the Basics of Protecting the Health of Citizens in the Russian Federation" (hereinafter – the Law on Health

Protection). The law in question at one time brought the guarantees of the rights and freedoms of the patient to a qualitatively new level, consolidating the basic principles of health protection. Among them, Article 4 of the Law on Health Protection includes: 1) observance of citizens' rights in the field of health protection and provision of state guarantees related to these rights; the priority of the patient's interests in providing medical care; the priority of protecting the health of children; social protection of citizens in case of loss of health, etc.

The mechanism for protecting the rights and freedoms of patients also involves the criminalization of certain acts in the field of medical services, which can most destructively affect public relations in this area [3]. In such circumstances, which entered into force on January 1, 1997. The Criminal Code of the Russian Federation (hereinafter referred to as the Criminal Code of the Russian Federation) has significantly updated the legal regulation of relations in the field of ensuring the safety of life and health of a patient during medical intervention, seeking to ensure the adequacy of this regulation to international legal and constitutional standards.

Thus, the Criminal Code of the Russian Federation introduced a number of crimes that meet the new economic relations in the Russian Federation and protect the rights and freedoms of the patient: Part 2 of Article 109 of the Criminal Code of the Russian Federation "Causing death by negligence due to improper performance of professional duties by a person"; Article 123 of the Criminal Code of the Russian Federation "Illegal artificial termination of pregnancy"; Article 124 of the Criminal Code 238 of the Criminal Code of the Russian Federation "Production, storage, transportation or sale of goods and products, performance of works or provision of services that do not meet safety requirements".

Here we come to the civil law element of the mechanism for protecting the rights and freedoms of the patient [6]. As is known, the model of legal regulation of medical activity, although subordinated to a greater extent to the public legal nature of regulation, is still experiencing a civilistic influence. In this sense, the legal nature of the paid provision of medical services should be considered. First of all, by virtue of Article 128 of the Civil Code of the Russian Federation (hereinafter – the Civil Code of the Russian Federation), the provision of services is an object of civil rights. Further, as indicated by Part 1 of art. 779 of the Civil Code of the Russian Federation, under a contract for the provision of paid services, the contractor undertakes to provide services on the customer's instructions (perform certain actions or carry out certain activities), and the customer undertakes to pay for these services. Part Two specifically names medical services as a special type of paid services, while at the same time establishing the possibility of adopting specialized regulatory legal acts regulating the rules for the provision of medical services. Unfortunately, the Civil Code of the Russian Federation, through the establishment of special rules for the provision of medical services, in no way reveals their essence and legal nature. In this regard, referring to the subordinate regulatory legal acts, we will give a general description of the rules for the provision of medical services.

Thus, these rules are established by the Decree of the Government of the Russian Federation dated May 11, 2023 № 736 "On Approval of the Rules for the provision of paid medical services by Medical Organizations, Amendments to Certain Acts of the Government of the Russian Federation and Invalidation of the Decree of the Government of the Russian Federation dated October 4, 2012 № 1006". By virtue of paragraph 1 of the act under consideration, medical services should be understood as services provided on a reimbursable basis at the expense of personal funds of citizens, funds of employers and other funds on the basis of contracts, including voluntary medical insurance contracts.

The relationship between citizens and professional market participants in the provision (rendering) of medical services is by nature a consumer-performer relationship, and is mediated by the norms of the Law of the Russian Federation dated February 07, 1992 № 23001 "On Consumer Rights Protection in the Russian Federation". This leads to a problem by virtue of which the service by its nature is valuable precisely by the process of its provi- sion (rendering), in contrast to work, where the main economic meaning of the transaction is the materialized result of the work performed. Naturally, at the same time, patients cannot count on any specific result, which is expressed in the cure or correction of their own health [5]. On the other hand, the consumer of medical services has the right to rely on the success of medical intervention carried out in strict accordance with generally accepted medical practice, a developed and recognized scientific approach, and formalized rules established by the state (this is confirmed in judicial practice, see, for example, the decision of the Avtozavodsky District Court of Moscow Tolyatti of the Samara region dated February 02, 2020 in case № 226/2020). Since this state of affairs is not present in any provision of medical services, law enforcement practice in this area contains a wide range of disputes related to the improper provision of medical services.

Protection of the patient's rights is primarily possible by civil law means. An important problem is the complexity of the evidentiary process, especially in the provision of cosmetology services. Judicial practice in most cases sides with the patient. The burden of proof in cases of improper provision of medical services is distributed by the courts in such a way that it is not the patient who must prove the quality of the services provided, but the medical institution – the absence of guilt in the wrong diagnosis and specific medical measures taken.

As the Plenum of the Supreme Court of the Russian Federation points out in its decision: "The presumption of guilt of the harm-doer established by Article 1064 of the Civil Code of the Russian Federation assumes that the defendant himself must provide evidence of the absence of his guilt. The victim presents evidence confirming the fact of injury or other damage to health, the amount of harm caused, as well as evidence that the defendant is the causer of harm or a person legally obliged to compensate for harm."

Thus, the Supreme Court of the Russian Federation considered a case in which a patient died as a result of an incorrect diagnosis. The treatment was prescribed as an operation to remove a hematoma from a bruised ster- num, but the result of death, according to the conclusion of the forensic medical examination, was pneumonia not detected during the examination [4]. In such circumstances, the relatives of the deceased have the right to apply to the court for protection of their rights in compensation for moral damage, according to the rules of Article 151 of the Civil Code of the Russian Federation.

The patient also has the right to defend his rights in accordance with the procedure provided for in Article 1085 of the Civil Code of the Russian Federation, that is, to apply to the court with a claim for compensation for physical harm caused as a result of improper provision of medical services. In such circumstances, the patient has the right to demand, on the basis of Article 29 of the Law on Consumer Protection, the elimination of deficiencies in the service provided, however, the difficulty lies in the fact that the elimination of physical deficiencies in the field of medical services is problematic, since they are associated with physical harm to health.

An urgent problem is the protection of patients' rights in the process of providing them with "quasi-medical" services that do not find their recognition and legal regulation (first of all, alternative medicine). In fact, the methods of such medicine are not prohibited, however, according to many researchers, due to the unsettled nature of this area, many fraudulent schemes are widespread in it. On the other hand, even if alternative medicine methods are recognized as acceptable from the point of view of legislation, there are currently no significant studies in this field that could assess how these methods are, firstly, safe for the life and health of patients, and secondly, effective from a medical point of view.

It should be noted that at present we can talk about an increasing trend in the number of claims against medical institutions and their employees, as well as an increase in cases of criminal prosecution in connection with non-provision of medical care or as a result of improper performance by a person of his professional duties [7]. It seems that this is not due to a deterioration in the quality of medical care, but to the low legal culture of the medical community, including the heads of medical institutions [8]. The situation became especially acute during the period of coronavirus infection in 2020-2021, when the burden on the healthcare system increased unprecedentedly. The circumstances indicated in this article, from our point of view, actualize the study of legal means to ensure proper medical intervention, legal mechanisms to ensure the rights and freedoms of the patient, and the prospects for improving legislation in this direction [2].