Modern civilistic instruments of medical reform: issues of law implementation and law enforcement

Elements of the rule of law are the principles of equality and justice, legal certainty, clarity, and unambiguity of the rule of law, as otherwise cannot ensure its uniform application, does not preclude unrestricted interpretation in law enforcement practice and inevitably leads to arbitrariness (paragraph 2 of subclause 5.4 clause 5 of the motivating part of the Decision of the Constitutional Court of Ukraine No. 5-рп/2005 dated 22 September 2005 ).

The study draws attention to the Decision of the European Court of Human Rights in the case "Fedulov v. Russia" [19], where the European Court of Human Rights recognised a violation of Article 1 of the Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms. The applicant complained that the authorities had failed to provide him with the free medicines he was entitled to in connection with his cancer treatment. Mr. Fedulov was diagnosed with cancer in 2007. He was entitled to free medication, in this case Bicalutamide, which he needed for 8-12 months. However, the pharmacy, which was intended to give him the medicine free of charge, provided it only once on these terms. In all other cases, he was informed that Bicalutamide was not available free of charge, but that he could purchase it at his own expense. In the following months, he paid 1,400 euros for treatment. He complained to the authorities and the courts about the lack of free medicines and sought reimbursement, but in February 2008 the district court dismissed his claim in full. The court found that the authorities involved, the St. Petersburg Health Insurance Fund and the St. Petersburg Health Committee, had done everything required by law. The applicant complained that he had not been provided with the medicines to which he was entitled under the law free of charge and that the authorities had not reimbursed him after he had had to purchase the necessary medicines at his own expense, basing his position on Article 1 of Protocol No. 1 (protection of property). The ECHR stated in its assessment that the parties did not deny that four times out of five the applicant had not been able to obtain the medication needed to treat his illness due to the lack of this medicine for distribution free of charge. Considering the finding that the applicant had a "legitimate expectation" that he would receive preferential assistance, the ECHR concluded that there had been an interference with the applicant's right under Article 1 of the First Protocol, and it is therefore necessary to determine whether this interference was justified.

The first and most important requirement of Article 1 of the First Protocol is that any interference by a public authority in peaceful possession should be lawful. As for the "law", Article 1 of the First Protocol refers to the same concept as the Convention, where the term is employed, and requires that the measure complained of be based on a sufficiently accessible and sufficiently precise domestic legal provision. Furthermore, the rule of law, one of the fundamental principles of a democratic society, is inherent in all articles of the Convention. So, the question of whether a fair balance has been struck between the requirements of the general interest of the community and the requirements of protection of fundamental human rights becomes relevant only after it is established that the intervention satisfies the rule of law and was not arbitrary.

In the present case, the ECHR notes that, although the applicant's right to the benefit in question was never in doubt, the domestic courts had, in fact, justified the refusal by reference to the lack of budgetary resources earmarked for that purpose by the St. Petersburg residents of this city for free medicine. Therewith, they did not invoke any legislative provision which would stipulate the refusal to provide the relevant benefit by any restrictions on budget funds, which made provision for any discretion on the part of the executive authorities to reduce or deny this right after reaching the budget allocation limit or any such provision that could provide legal grounds for such a conclusion. In this regard, it is noteworthy that in subsequent court decisions taken in proceedings on similar claims, it was clearly stated that the existing legal framework establishes the right of those who are entitled to the necessary medicines not only free of charge but also without any restrictions, and that the establishment of a maximum number of specific medicines per person or insufficient budgetary funding allocated to a particular region cannot serve as grounds for refusing to provide interested persons with medicines that are important for their lives.

The study of innovative legal constructions gives grounds to assert that legislative shortcomings, first of all vagueness and uncertainty of the legal essence of civil instruments, source gaps and lack of scientific interest, have already caused problems in law enforcement and, consequently, have violated human rights in healthcare.

CONCLUSIONS

Having studied the new legal constructions through the lens of judicial practice, their civilistic nature was clarified and recommendations were made to optimise the enforcement and administration of the law:

1. Law No. 2168-VIII is special, because it regulates the procedure for providing medical care at the expense of the State Budget of Ukraine under the medical guarantee programme. Therefore, the following conclusions are drawn: 1) when providing medical care under the medical guarantee programme, the patient's right to freely choose a doctor is limited by the choice of a primary care physician; 2) the choice of a doctor in the provision of other types of medical care under the medical guarantee programme is subject to numerous regulatory restrictions, which does not allow to fully feel the freedom of choice in the exercise of personal non-property right to medical care; 3) when providing medical care outside the programme, free choice must be provided on the basis of Articles 6 and 38 of the Fundamentals, which does not correlate with Article 24 of the Constitution of Ukraine.

2. The declaration on the choice of a doctor providing primary healthcare has the following legal significance: a) certifies the exercise of the right to freely choose a doctor; b) by its legal nature is not a transaction; c) is a legal fact that confirms the emergence of a natural person's status of a third party under the Agreement under the medical guarantee programme.

3. The contract under the medical guarantee programme on the legal essence is the contract on rendering of services. According to the principle of dichotomy, this contract consists of two parts: 1) in the part "customer - provider", it is a contract for the provision of services under public procurement; 2) in terms of rendering medical services by the provider to the patient, it is a contract for the benefit of third parties; 3) is civil legal in nature.

4. Theoretical gap leads to problems of legal understanding in the application of Ukrainian legislation, which has a negative impact on the effectiveness of human rights protection in the field of healthcare, which can be clearly seen in the analysis of judicial practice.

5. The "legitimate hope" that arises in a person in the presence of regulatory guarantees is under conventional protection, as illustrated in the decisions of the ECHR, and to change the paradigm, a transformation of the law is required. The principle of the rule of law is guarded so that dissonance does not deepen and "legitimate expectations" through a guaranteed right does not depend on the lack of public funds.

The subject matter is multidisciplinary, important for both lawyers and healthcare professionals, therefore scientific intelligence should be spectral and in-depth in order to provide better scientific cognition of the analysed legal constructions, and thus develop a doctrine that will best protect human rights, including in the administration of justice.

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[19] Judgment of the European Court of Human Rights in the case “Fedulov v. Russia” (2020). Retrieved from http://hudoc.echr.coe.int/eng?i=001-196411

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