Розвиток медичних прав дітей в Україні (1919 р. - початок ХХІ ст.)

As in many countries around the world, in Ukraine after the First World War and after the change of government (Ukraine became the Soviet Republic), the question of revising the legislation for improvement and bringing it into line with the requirements of the time arose. One of the main tasks of the Soviet government during this period was to ensure the health of the population in general and children as the future of the state in particular. On June 29, 1920, in accordance with the resolution of the Council of People's Commissars of the USSR the Council for the Protection of Children began its work, whose competence included the settlement of the issue of food supply, sanitation, and public education of children of the urban poor. Subsequently, provincial councils for the protection of children were established under the leadership of the chairmen of provincial executive committees, among whose tasks according to the statute “On Provincial Councils for the Protection of Children” was the implementation of the largest possible number of measures for health, nutrition, supply, and education of children.

At that time, the state paid special attention to disease prevention. Thus, programs of physical education classes were developed in all children's institutions, which were held under appropriate medical supervision. Moreover, these measures were included in the operational plan of the People's Commissariat of Health for 1923-1924 [17, p. 28]. We should not overlook the fact that during this period there were special institutions for children with vision and hearing disorders and for mentally-retarded children and children with disabilities, which, in the authors' opinion, is quite justified and logical because these categories need special medical supervision and living conditions. Undoubtedly, this was a big step forward because until that time such institutions did not exist in Ukraine.

It should be noted that on November 19, 1924, the Council of People's Commissars and the All-Ukrainian Central Executive Committee of the USSR adopted a resolution “On the state organisation of children's health and the rights and responsibilities of children's health doctors”. The document provided that, in addition to the position of a child health doctor, the positions of medical support staff (nurses) for child health care would also be introduced in places that serve all types of children's institutions. Article 3 of the considered document contained the list of measures of sanitary-prophylactic, treatment-prophylactic, and medical-pedagogical nature the application of which was entrusted to health care bodies. Among them: 1) supervision over the sanitary condition of children's institutions; 2) sanitary care for children's nutrition; 3) application of personal and public prevention measures to children; 4) control of infectious diseases in children's institutions; 5) supervision over the psychophysical development of children; 6) dissemination among children, as well as teachers and parents of the necessary sanitary and hygienic information and habits (sanitary education), etc. Moreover, Art. 9 of the above mentioned Resolution provided that the children's health doctor monitored the sanitary condition of children's institutions, monitored compliance with certain sanitary and hygienic standards, including the announcement of quarantine in closed children's institutions and temporary closure of open children's institutions in case of acute infectious diseases or a mass epidemic among children or staff with the consent of the health inspector and the consent of the Inspectorate of the People's Commissariat of Education.

Thus, it could be stated that this Resolution was revolutionary, as it clearly indicated the health care bodies for children, outlined the scope of their powers, enshrined the legal status of a child health doctor (now known as a pediatrician), and so on. As for children's institutions, their network consisted of institutions of open (consultations, nurseries, “milk drops”, kindergartens, etc.) and closed (mother and child homes, shelters, etc.) type [21, p. 127].

During the Second World War, one of the main problems was the demographic crisis, due to which the health authorities had to increase the birth rate in Ukraine, to take care of the health of children. That is why in 1943 in the USSR the creation of sanatorium kindergartens began, where children with impaired health were provided with the necessary nutrition and constant medical care. Children could stay in such institutions from 3 to 6 months within 24 hours. Moreover, they were provided with enhanced nutrition and constant medical care. Pedagogical work in sanatorium kindergartens was carried out, considering the state of health of children. Additionally, the health of newborns should be considered. First of all, it should be pointed out that in the postwar period, this area had certain negative features and shortcomings. The unsatisfactory state of hospital life in many maternity hospitals and other hospitals led to a reduction in the length of stay of women in bed in several areas. It should not be forgotten that in those days there was no proper connection with pediatric counseling, and therefore, under such conditions, early discharge of children, including premature babies, was a threat to their health and life. Considering this, not only increased the number of deaths of newborns in the hospital, but also increased the mortality of newborns after their early discharge from the hospital [28, p. 55].

The end of the 1960s in the field of health care was marked by the adoption in the USSR of the Law “On Approval of the Fundamentals of the Legislation of the USSR and the Union Republics on Health Care” of December 19, 1969. It was the first law (a kind of code) in the USSR that comprehensively regulated the issue of health care. According to this Law, on July 15, 1971, the Law of the Ukrainian SSR “On Health Care” was adopted in the USSR, in the introductory part of which it was stated that special attention of socialist society is paid to the health of mother and child. A separate section of the above law was devoted to the protection of motherhood and childhood. Article 65 of this Law enshrined the right of a mother and her newborn child to receive medical care (inpatient care during childbirth, medical and preventive care, etc.). The law also provided the provision of medical care to children and adolescents in treatment and prevention and health care facilities: children's clinics, dispensaries, hospitals, sanatoriums, and other health care facilities.

At the constitutional level, the right of citizens to health care was first enshrined in the Constitution of the USSR in 1977 and, of course, in the Constitution of the Ukrainian SSR in 1978. In Art. 40 of the Basic Law of the Ukrainian SSR, it was noted that the state took special care of the health of the younger generation, which, in particular, provided for the prohibition of child labor not related to education and labor education. There have been significant changes at the international level regarding children's rights, including medical rights. These changes had a great impact on the development of medical rights in Ukraine. In 1978, the UN General Assembly in its resolution noted that the International Y ear of the Child provides a unique opportunity for all countries to undertake an in-depth review and evaluation of their policies for children and to establish programs of action to be undertaken, and for the world community to renew and to reaffirm its determination to meet children's needs and to secure their fundamental rights. Moreover, at this 33 session of the UN General Assembly, a resolution about the necessity of adoption of the convention on rights of the child was adopted. In support of the decision of the UN General Assembly, on March 15, 1979, the Verkhovna Rada of the Ukrainian SSR adopted a resolution “On holding the International Year of the Child in the Ukrainian SSR”. This resolution envisaged directing efforts of the state and public organisations to ensure a stable improvement of the well-being of children, namely the development of a network of children's hospitals, polyclinics, sanatoriums, and preschool institutions, expanding the range and improving the quality of goods for children, improving public catering for children and more.

The most significant world event of the twentieth century in the field of children's rights, including medical rights, was the adoption by the UN General Assembly of the Convention on the Rights of the Child in 1989, which the Ukrainian SSR ratified in 1991. The Convention on the Rights of the Child is regarded as successful by practitioners pursuing a career in the field of Public International Law because, in addition to having been ratified over the decades by more than 190 countries (even under several reservation clauses), the socio-legal view of this legislation has been gradually adopted by the populations of countries located in various continents of the globe [5, p. 606]. The idea of universal acceptance of childhood finds justification in the swift ratification of the UNCRC, a document that has enshrined Euro-American ideals and notions of children, childhood, and the politics of protection [6, p. 69-70]. According to this Convention, states parties recognise that every child has the inherent right to life, and they shall ensure to the maximum extent possible the survival and development of the child (Art. 6), enshrine the rights of the mentally and physically disabled child (Art. 23), recognise the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health (Art. 24), recognise the right of a child who has been placed by the competent authorities for the purposes of care, protection, or treatment of his or her physical or mental health, to a periodic review of the treatment provided to the child and all other circumstances relevant to his or her placement (Art. 25). The Convention had a significant impact on the legislation of all states, including the Ukrainian SSR, on their attitude to the rights of the most vulnerable age group, as well as the recognition of the need to ensure the rights of children at the legislative level. However, there is a huge gap in the Convention. We share U. Kilkelly's opinion, that at the same time, the CRC says remarkably little about the scope of the child's right to health and how to ensure that children's healthcare is delivered in a rights-compliant manner. Nor does the CRC directly states the many sensitive and controversial issues in children's health, including consent to medical treatment, involvement in medical trials, and the impact of poverty on child's health [18, p. 217].

1.1. Children's medical rights in Ukraine after proclamation of independence

The current Constitution of Ukraine, adopted in 1996, stipulates, that citizens have the right to social protection, including the right to be provided in the case of full, partial, or temporary disability, loss of a breadwinner, unemployment due to circumstances beyond their control, and in old age and in other cases provided by law (Art. 46). It is this article that guarantees social protection to children with disabilities by the state and on its basis, other legal acts are adopted in the field of providing state assistance to children with disabilities (for example, the Law of Ukraine “On Fundamentals of Social Protection of Persons with Disabilities in Ukraine” of March 21, 1991, No 875-XII). Article 48 of the Constitution of Ukraine stipulates that everyone has the right to an adequate standard of living for himself and his family, which includes adequate food, clothing, and housing.

The main article of the Constitution, which is the basis of children's medical rights in Ukraine, is Article 49, according to which everyone has the right to health protection, medical care, and medical insurance. Medical care is provided free of charge in state and municipal health care facilities. In Ukraine, as well as in most countries, parents make all decisions about the medical care of their children. The authors strongly agree with T. Dare that in fact there is a presumption in favor of parental rights. Such rights are normally rebuttable: they can be set aside by courts where parents' decisions pose a significant risk to the life or well-being of the child [15, p. 947].

In accordance with the ongoing medical reform in Ukraine, changes have been made to the responsibilities of the pediatrician. Thus, according to the order of the Ministry of Health “Procedure for providing primary care” of March 19, 2018, No. 504 pediatrician is obliged to provide the following services free of charge:

- to provide primary care to patients;

- to form and control the implementation of the plan of examinations and treatment, analyse the results of research, prescribe drugs and other treatment measures;

- to provide medical care to patients in an emergency;

- to refer, in accordance with the medical indications of a patient who does not need emergency medical care, to provide him with secondary (specialised) or tertiary (highly specialised) medical care;

- to coordinate work with other parts of medical care;

- to manage patients suffering from socially dangerous infectious diseases in accordance with the legislation;

- to carry out immunoprophylaxis in accordance with current legislation;

- to advise on a healthy lifestyle;

- to carry out measures of mass and individual prevention of infectious diseases;

- to assess individual disease risks and advise on prevention. Develop individual health examination and monitoring programs;

- to inform the patient about national screening programs and perform other functions in accordance with the law or the program;

- to provide medical care for a healthy child;

- to prescribe medicines with the registration of documents according to the legislation;

- to draw up medical notes, forms, sickness certificates.

The Constitution also enshrines the protection of childhood by the state (Art. 51), which indicates a special attitude of the state to this vulnerable part of the population. In execution of this provision of the Constitution, in 2001 the Law of Ukraine “On Childhood Protection” was adopted. This law provides a definition of the terms child, childhood, child with a disability, etc., as well as a list of children's rights. One of them is the right to life and health care (Art. 6). This right means that every child has the right to life from the moment he or she is determined live-born and viable of the criteria of the World Health Organisation. The state also guarantees to the child the right to health care, free qualified medical care in state and municipal health care facilities, promotes the creation of safe living conditions and healthy development of the child, nutrition, and the formation of healthy lifestyle skills. In order to achieve all of the above, the state takes measures:

-to reduce infant mortality;

-to ensure the provision of necessary medical care to all children;

-to combat disease and malnutrition, including by providing children with access to sufficient quality food and clean drinking water;

-to create safe and healthy working conditions;

-to provide mothers with appropriate health care services in the prenatal and postpartum periods;

-to provide all segments of society, including parents and children, with information on the health and nutrition of children, the benefits of breastfeeding, hygiene, sanitation of children, and the prevention of accidents;

-to develop educational work, services in the field of family planning and reproductive health;

-to provide children with preferential medicines and food in the order established by the legislation.

Therefore, studying the issue of development of children's medical rights it should be noted that the rights of children in health care can be classified into two main groups: - universal, which are inherent both for children and adults; - specific, which belong only to children, besides they are reinforced with guarantees of their legal status. The first group include the right to life and development, the right to the highest level of health as possible and access to health services, to receive treatment based on clinical need, respect for privacy and dignity, etc. The second group include the following: the right of disabled children to special care, the right of children placed in the care of the State to periodic review of treatment, the right to protection from the use of narcotic and psychotropic drugs, etc. [23, p. 1123].

As for the right to life, there are still fierce disputes among scholars. Some scientists note that the unresolved issue is the balance of human rights, first of all, the balance between the protection of the fetus and the respect for a pregnant woman's rights [26, p. 135]. The resolution of the issues and forming of a reasonable legal position in Ukraine require comparative legal research of the experience of other countries. One of the important decisions of the essential question of constitutional guarantees for the life of a child during the prenatal period in the event of a conflict of interests was made by the Constitutional Tribunal of the Republic of Poland [29]. In the Tribunal's view, termination of pregnancy even where, “based on prenatal tests and/or on other medical grounds, there is a high probability of the fetus's severe and irreversible impairment or of the fetus's life-threatening incurable illness” is inconsistent with the Constitution of the Republic of Poland. It held that an unborn child - as a human being, entitled to the inherent and inalienable dignity of the person - is recognised under law as a subject of rights and obligations who enjoys the right to life. Moreover, the experience of non-west legal systems, for example, Islamic law where there are specific approaches to children's rights protection, is interesting for research [30].

So, nowadays, children's medical rights and children's health care are still developing. For example, there are studies about human digital rights [31], children's right to freedom from obesity [14], and human rights in conditions of the COVID-19 pandemic fight [32]. So, as we can see, at the beginning of the XXI century there were considerable changes in children's health care. The development of children's medical rights has been continuing up to nowadays.

Conclusions

Thus, it could be concluded that children's medical rights were actively developed in the twentieth century after the First World War. It was an event of a global scale that prompted legislative changes in national legislations, including Ukraine. Ukraine's experience in children's health care is rich in examples of both successful reforms in the field of children's health care, and not so successful. A new system of public health was built, much was done to ensure the smooth realisation of children's right to health care, which was most needed during World War II, to overcome its consequences such as demographic crisis, exacerbation of children's health problems, settlement issues of their rehabilitation, both physiological and psychological, etc. Furthermore, intense activity in the provision of quality medical services to children was developed, the rights of children at the highest constitutional level were enshrined. Moreover, Ukraine acceded to the Convention on the Rights of the Child, which also contained articles on children's medical rights. So, Ukraine's accession to international conventions is an indicator of the direction of Ukrainian legislation in line with the consolidation of children's medical rights according to international standards. The modern Constitution of Ukraine contains articles on children's health. Moreover, Ukraine has adopted a separate law “On the protection of childhood”. The modern Ukrainian legislation about children's medical rights has been improving, new medical reform has been carried out, which also provides changes in children's health care. Nowadays, the issue about children's medical rights among Ukrainian and foreign scholars still have been developing. That is an indication of further development of children's medical rights both on an international stage and in Ukraine. That is why the conclusion can be drawn, that development of children's medical rights in Ukraine had reached the level when it is necessary to create a juvenile code with a separate section on children's medical rights.

References

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