A bill on the decriminalization of medical activities has been introduced to the State Duma

On behalf of President Vladimir Putin, United Russia submitted to the State Duma a bill to abandon the term “medical service.” A significant part of doctors, including representatives of the Health Workers Trade Union, have been insisting on this for a long time. The authors of the initiative emphasize that the document was developed with the aim of “decriminalizing the provision of medical care.” In particular, the extension of the provisions of the law “On the Protection of Consumer Rights” to the current relationship between a health worker and a patient entails the initiation of criminal cases against health workers under Art. 238 of the Criminal Code (performance of work or provision of services that does not meet safety requirements). Commenting on the initiative at the request of Kommersant, lawyers point out that the root cause of cases of unjustified prosecution of doctors is often not so much shortcomings of the legislation as problems of law enforcement practice.

In early February, during a meeting between Vladimir Putin and members of his campaign headquarters, the head physician of city hospital No. 52 in Moscow (and concurrently the chairman of the headquarters) Maryana Lysenko complained to the head of state about the term “medical service.” “Doctors actually provide medical care, treat patients, save lives, performing an important government function. And we know that this issue has been resolved in education. Vladimir Vladimirovich, we kindly ask you to solve it for us,” said Mrs. Lysenko, meaning that this concept must also be used in the field of medical activities. The head of state replied that he did not know why “our bureaucratic structures are so stubborn.” “Formally, this could be a service. But this is much broader than just taking, selling, buying, renting. Let’s do this, I’m not against it, I’m for it,” said Vladimir Putin.

On March 20, on behalf of the president, a group of senators and deputies representing United Russia submitted to the State Duma a bill developed “in order to increase the prestige of the medical profession and decriminalize the provision of medical care.” “For citizens, the provision of medical care is often associated with such a concept as “medical service,” associating medical workers with persons providing services, rather than people helping their patients,” the authors emphasize. The explanatory note states that the current application of the term “service” to medical activities entails the extension of the provisions of the law “On the Protection of Consumer Rights” to the relationship between the health worker and the patient. The consequence of this is the initiation of criminal cases under Art. 238 of the Criminal Code (production, storage, transportation or sale of goods and products, performance of work or provision of services that do not meet safety requirements). “As a result, a situation has arisen where doctors are afraid to take on the risk of certain consequences, although saving lives is often an action that involves a reasonable risk,” the explanatory note says.

In the law “On the Fundamentals of Protecting the Health of Citizens in the Russian Federation,” the term “medical service” has a very narrow meaning, the authors of the initiative state, and propose to eliminate the ambiguous by changing the name of the terms “medical care” and “medical service”: “It is proposed to define “medical care” as medical intervention or a complex of them, as actions themselves to provide assistance to citizens.” They intend to establish that relations in the provision of medical care, including the rules and conditions for its provision, the rights and obligations, as well as the responsibility of health workers, are regulated only by the norms of special legislation. Deputies propose to make corresponding changes to the laws “On the Fundamentals of Protecting Citizens’ Health” and “On the Protection of Consumer Rights.” Legislators consider it necessary to use the concept of “medical service” exclusively for the purpose of financial support for the provision of medical care and sanatorium-resort treatment to citizens, licensing of medical activities, statistical observation, as well as in nomenclatures and standards in the field of healthcare.

The head of the State Duma Committee on Health Protection, Badma Bashankaev, is confident that the bill will “put everything in its place.” “This is not only about the ethical side of the matter and the legal protection of doctors. The bill may, to some extent, help solve the problem of personnel shortages. Indeed, today doctors often fear unfounded criminal prosecution due to the use of the term “service” in Article 238 and leave the profession,” comments Mr. Bashankaev. He emphasizes that the protection of the doctor and the protection of the patient are “inextricably linked” and only by being equally protected can the doctor and patient have confidence in each other. The head of the Trade Union of Healthcare Workers, Anatoly Domnikov, agrees with him: “We have been advocating such changes as a trade union for a long time. We will be glad if a decision finally takes place.”

Director of the Institute of Health Economics at the Higher School of Economics Larisa Popovich believes that it would have been enough to adjust the law on the protection of consumer rights by removing the term “medical service” from its scope “to some extent.” “In principle, we are all consumers, including medical care. Doctors receive money for this help, therefore it is a service to society. They serve society, society hires them to help those in need. This terrible rejection by doctors of the term “service” is rather artificially provoked,” Ms. Popovich is sure. “Will it be better for the patient?” We will see this.”

Lawyer of the Yakovlev and Partners legal group Evgenia Ryzhkova says that there are no differences in the Criminal Code of the Russian Federation for bringing medical workers to justice under Art. 238, art. 109 (causing death by negligence) or Art. 118 (causing grievous bodily harm through negligence): “It is almost impossible to predict the qualifications that the investigation will choose.” According to her, Art. 238 of the Criminal Code of the Russian Federation is more often applied to employees of private clinics in cases where the services are dangerous for consumers. The head of the Moscow bar association Aronov and Partners, Alexander Aronov, adds that under Art. 238 of the Criminal Code of the Russian Federation is invoked “when the investigative authorities established that the doctors knew that the service could be dangerous for the patient – for example, they did not have the necessary specialization or used equipment of dubious quality.” In cases where a health worker violates health protection legislation in the process of providing assistance, that is, it is a professional mistake, liability, according to him, arises according to other norms of the Criminal Code of the Russian Federation, for example, Part 2 of Art. 109 of the Criminal Code of the Russian Federation (causing death by negligence). “The root cause of cases of unjustified prosecution of medical workers is not so much shortcomings of legislation as problems of law enforcement practice – from the degree of professionalism of investigators to difficulties with conducting forensic medical examinations and examinations of the quality of medical care,” believes Mr. Aronov.

Evgenia Ryzhkova does not expect “significant changes in the criminal legal field” in connection with the adoption of the bill. However, in her opinion, he can change the practice in the civil law field: “For example, they will no longer satisfy patients’ demands to collect a fine for refusing to voluntarily fulfill the consumer’s demands. It will also shift the burden of proof in civil proceedings to the plaintiff, that is, to the weaker party in disputes with clinics.”

Kommersant asked the Ministry of Health to comment on the initiative, but did not receive a response at the time of publication.

Natalya Kostarnova, Alexander Voronov