Defects in the legislative regulation of medical services for the patient, considered as services for the consumer

Vinokurov Vladimir Anatol'evich ORCID: 0000-0003-0002-3010 Doctor of Law Professor of the Department of Theory and History of State and Law of Saint Petersburg University of the State Fire Service of the Ministry of Civil Defense, Emergencies and Elimination of Consequences of Natural Disasters named after Hero of the Russian Federation Army General E.N. Zinichev 196105, Russia, Saint Petersburg, Moskovsky ave., 149 V.Vinokurov.JD@gmail.com Other publications by this author

SHafigulin Kirill Vital'evich Legal Adviser; Federal State Budgetary Institution 'VCERM named after A.M.Nikiforov of the Ministry of Emergency Situations of Russia' 194044, Russia, Saint Petersburg, Saint Petersburg, Akademika Lebedeva str., 4/2, - V.Vinokurov.JD@gmail.com

Introduction. The Constitution of the Russian Federation stipulates that everyone has the right to health protection and medical care (part 1 of Article 41). This provision is included among the fundamental human and civil rights and freedoms in the Russian Federation, while stating that "the enumeration of fundamental rights and freedoms in the Constitution of the Russian Federation should not be interpreted as a denial or belittlement of other universally recognized human and civil rights and freedoms" (part 1 of Article 55).

Since the Basic Law of the State does not contain any references to goods, works or services, except for the possibility of their free movement around the country (part 1 of Article 8), it should be agreed that the rights of consumers of goods, works and services are universally recognized human and civil rights, despite the fact that they are not named. in the Constitution of the Russian Federation.

The main part. The relations that arise between consumers and manufacturers, performers, importers, and sellers when selling goods (performing work, providing services) are regulated by the Law of the Russian Federation "On Consumer Rights Protection". It should be noted that this Law of the Russian Federation does not clarify the concept of "service". Unlike the aforementioned Law of the Russian Federation, the Federal Law "On the Fundamentals of Public Health Protection in the Russian Federation", which regulates almost all relations arising in the sphere indicated in the name, has a definition of a medical service, according to which a medical service is "a medical intervention or a set of medical interventions aimed at prevention, diagnosis and the treatment of diseases, medical rehabilitation and having an independent complete meaning" (Article 2).

The general definition of services and their types are set out in Part two of the Civil Code of the Russian Federation, which examines the contract for the provision of paid services (Article 779). Based on the specified norms of civil legislation, a service is defined as the commission of certain actions or the implementation of certain activities. The types of services include communication services, medical, veterinary, auditing, consulting, information services, training services, travel services and other services.

A more precise definition of the term "service" is contained in the national standard of the Russian Federation GOST R 50646-2012 "Services to the public. Terms and Definitions", which was put into effect on January 1, 2014 for voluntary use by Rosstandart Order No. 1612‑art dated November 29, 2012. In accordance with this national standard, a service is "the result of direct interaction between the contractor and the consumer, as well as the contractor's own activities to meet the needs of the consumer of services," while services provided to the public are divided into tangible, intangible (socio–cultural) and mixed (paragraph 3.1.1). The number of socio-cultural (intangible) services, along with others, includes a service to maintain the normal functioning of the consumer, "including the maintenance and restoration of health" (paragraph 3.1.3), that is, medical services are listed among the usual services that must meet the needs of the consumer of these services.

Russian Russian: The Federal Law "On the State Language of the Russian Federation" establishes a rule according to which, when using Russian as the official language of the Russian Federation in certain areas, the norms of the modern Russian literary language must be observed (Part 3 of Article 1). The Federal Law referred to such areas, including information intended for consumers of goods, works, and services (paragraph 94 of part 1 of Article 3).

Service, in the meaning we are interested in, is explained in explanatory dictionaries of the Russian language as "an action that benefits another" ^{[1, p. 870]}.

Thus, from the point of view of the general interpretation accepted in Russian, services can be very diverse, including medical services.

The submitted acts are sufficient to understand the essence of the service, which may be medical. In our opinion, it is necessary to separate medical services from other types of services, given the increased number of disputes concerning the provision of medical services, numerous judicial decisions based on disparate legal norms, and ambiguity in understanding the essence of medical services provided today. A medical service as a medical intervention is not an ordinary service (for example, for repairing a water supply network or delivering goods), but in essence, medical care, which is very difficult, and in most cases impossible, to redo or return to its original state.

Let us turn to the responsibility of the contractor established by law, that is, the one who provided or should have provided the service, if we consider the medical service on an equal basis with other types of services.

As established in the Federal Law "On the Fundamentals of Public Health Protection in the Russian Federation", "harm caused to the life and (or) health of citizens while providing them with medical care is compensated by medical organizations to the extent and in accordance with the procedure established by the legislation of the Russian Federation" (Article 98), which addresses us to the standards set out in Articles 13-15 The Law of the Russian Federation "On Consumer Rights Protection", which provides for the following liability of the contractor for violation of consumer rights: 1) that provided for by law or contract; 2) compensation for damages in full and penalties or (penalties); 3) the need to fulfill the obligations imposed in kind, despite the payment of penalties and damages; 4) a fine of fifty percent of the amount, which is awarded by the court in favor of the consumer in in case of non-compliance on a voluntary basis with the satisfaction of consumer requirements; 5) compensation in full for the damage caused to the consumer's life, health or property as a result of any deficiencies in the service, but within the prescribed service life or shelf life; 6) compensation to the consumer for moral damage, if there is fault of the person who caused the damage.

If we try to imagine the possibility of applying the liability measures specified by the Law of the Russian Federation "On Consumer Rights Protection" for poor-quality provision of medical services, such as medical intervention, for example, during an appendicitis operation, then we note that compensation for damages in full and penalties or penalties is possible if this is provided for by the contract, then there is a payment for the service at your own expense. In the case of an operation as part of the provision of free medical care, such compensation is not provided. It is also possible to compensate for moral damage. But despite the amounts paid, how can appendicitis be cut out once more, that is, as required by the aforementioned Law of the Russian Federation, "fulfill the obligation in kind"? Obviously, no one will be able to determine the "service life or expiration date" during which "full compensation is provided for damage caused to the life, health or property of the consumer as a result of any shortcomings in the service."

Such practical inconsistencies did not prevent the Supreme Court of the Russian Federation from giving the courts an explanation, from which it follows that "legislation on consumer rights protection applies to relations on the provision of medical services to citizens provided by medical organizations within the framework of voluntary and compulsory medical insurance."

Despite the above decision, the practice of adjudicating legal disputes has begun to tend to the fact that the requirements for the provision of medical services do not correspond well with the requirements and responsibilities that are established for other types of services. Thus, by the ruling of the Judicial Board for Civil Cases of the Supreme Court of the Russian Federation dated July 15, 2019 in case No. 44-KG19-7, the decisions of the Bereznikovsky City Court of the Perm Territory dated March 16, 2018 and the appellate ruling of the Judicial Board for Civil Cases of the Perm Regional Court dated June 6, 2018 regarding the collection of a fine from the state budgetary healthcare institution of the Perm Region "City Hospital named after Academician Wagner Evgeny Antonovich" Berezniki. The rationale for this decision was based on the norm of part 8 of Article 84 of the Federal Law "On the Basics of Public Health Protection in the Russian Federation", which establishes that the provisions of the Law of the Russian Federation "On Consumer Rights Protection" apply to relations related to the provision of paid medical services. This approach, although it creates a precedent according to which the provision of free medical services cannot be viewed through the prism of the Law of the Russian Federation "On Consumer Rights Protection", does not solve this problem, especially if one understands that the provision of "free medical care" is by no means free: this assistance was paid for by regularly transferred funds. insurance premiums for compulsory medical insurance. (Article 425 of the second part of the Tax Code of the Russian Federation). M.I. Sirotkina warns about the possible problems of the decision adopted by the Supreme Court of Russia in her article, believing that such an approach "can be interpreted as actually depriving patients receiving medical services under a compulsory medical insurance contract of the guarantees provided to them by the Law on Consumer Rights Protection" ^{[2, p. 40]}.

Many scientists and specialists have repeatedly noted and analyzed the problems associated with the provision of medical services, showing in their research the specificity of these services in comparison with other paid services. L.V. Vysotskaya writes about the special responsibility for the poor-quality provision of medical services, pointing out a significant flaw in the legal regulation regarding the absence of "special rules on liability under the contract for the provision of paid medical services" ^{[3, p. 153]}. E.L. Potseluyev and A.E. Gorbunov agree with her, suggesting "that the legislator specify the norms concerning civil liability in the field of healthcare in order to reduce disagreements when applying them in practice, for example, by adopting a law protecting the rights of consumers of healthcare services" ^[4].

Considering the legal meaning of the terms under study, N.S. Ponomarev concludes that "both medical care and medical services are a set of medical benefits that are provided exclusively and only under contracts" ^{[5, p. 44]}. At the same time, I.V. Timofeev identifies a significant problem, which "consists in the fact that the federal legislator, combining these two concepts under study into a legal structure from public law ("medical care" as a social good and the obligation to provide it by the state) and private law ("medical service" as a unit of financial and economic assessment of medical intervention in the completed case of medical care) sectors, it combined the socio-legal concept of medical care, which is difficult to enforce, which, in our opinion, made it difficult to understand its content, expressed through the definition of "medical service"" ^{[6, p. 13]}.

That the Federal Law "On the Fundamentals of Public Health Protection in the Russian Federation" "has not been able to fully replace the previously existing Fundamentals of the legislation of the Russian Federation on Public Health protection, which coordinated, guided and subordinated the norms relating to the same subject of regulation, but contained in other normative legal acts", noted by T.Ya. Khabrieva ^{[7, p. 9]}. A.V. Tikhomirov stated that the said Federal Law "created a new legal configuration in the field of health protection in isolation from the social reality that develops in accordance with the current legal doctrine and general legislation," because he believed that this act "by virtue of numerous references to the powers of the branch department, in essence, established a priority." bureaucratic discretion not only over the norms of law, and not only this Law, but also the acts of general legislation that constitute civil turnover, but also over the civil rights and freedoms of participants in this turnover in the industry" ^{[8, p. 40]}.

The complex of problems related to the provision of medical services that arise in practice, the imperfection of the legislative regulation, confirmed by the research of scientists, led a number of parliamentarians to the idea of making the necessary changes to Russian legislation.

Let's consider the draft law "On Amendments to the Federal Law "On the Basics of Public Health Protection in the Russian Federation" and Article 1 of the Law of the Russian Federation "On Consumer Rights Protection" posted on the website of the State Duma (regarding the clarification of the concepts of "medical care" and "medical service"), received No. 580179-8. The explanatory note to this draft law quite rightly states that "the right to medical care cannot be equated with the concept of "service"", and "medical care guaranteed by the Constitution of the Russian Federation cannot be defined by the concept of "service"". Therefore, it is proposed to clarify the definitions of, firstly, medical care, which from a medical service becomes a medical intervention or a complex of medical interventions "aimed at the prevention, diagnosis and treatment of diseases, medical rehabilitation and having an independent complete meaning" and, secondly, a medical service that turns into "the name of a medical intervention or complex medical interventions", which should be used exclusively for financial support, licensing, statistical monitoring, and the formation of clinical recommendations and standards of medical care.

The draft law proposes to introduce into the Federal Law "On the Basics of Public Health Protection in the Russian Federation" and the Law of the Russian Federation "On Consumer Rights Protection" the same rules according to which relations arising from the provision of medical care to citizens under the program of state guarantees of free medical care to citizens should be regulated by the provisions, but "with the exception of legal relations regulated by other legislative acts."

At the same time, the requirement of the Federal Law "On the Basics of Public Health Protection in the Russian Federation", according to which the provisions of the Law of the Russian Federation "On Consumer Rights Protection" apply to relations related to the provision of paid medical services, remains, which negates all attempts to define a medical service as a formalized concept for accounting, separating it from medical care.

The indicated approach of the parliamentarians who submitted the bill, in fact, suggests considering medical care as what is provided to patients for free, that is, at the expense of the budget of a specialized fund, and medical care – with all the requirements of the legislation on the provision of services – as what the patient pays for out of his own pocket. This proposal does not solve the problem, but only confuses both those who provide medical care (today it is a medical service), and those who are patients (today it is a consumer of the service), and those who are forced to sort out disputes between the former and the latter.

Conclusion. It is possible to correct the stated drawback of the submitted draft law if it is decided to regulate all legal relations related to medical care provided to a patient both free of charge and for a fee only in accordance with the norms of the Federal Law "On the Basics of Public Health Protection in the Russian Federation." This approach will be clear to everyone: both those who provide medical care (today – medical services), and those who receive it, and those who control the quality of this care, and the judicial authorities that sort out disputes between patients and medical organizations.

The adoption of a draft law proposing amendments to the Federal Law "On the Fundamentals of Public Health Protection in the Russian Federation" and the Law of the Russian Federation "On Consumer Protection" in terms of clarifying the concepts of "medical care" and "medical service" is a very timely measure. But since the interpretation of these terms, laid down in the draft law, violates the principle of equality in receiving medical care, including in terms of protecting their rights, which should be uniform, the authors formulated proposals to preserve the spirit of the constitutional norm, according to which everyone has the right to health protection and medical care (part 1 of the article 41).

In our opinion, in order to eliminate ambiguities in the application of legislative norms concerning the provision of services in general, medical services (which are proposed to be called medical care), in particular, it is proposed:

1) to supplement Article 3 of the Federal Law "On the Fundamentals of Public Health Protection in the Russian Federation" with Part 12 as follows:

"12. Relations arising in the provision of medical care to citizens within the framework of the program of state guarantees of free medical care to citizens, as well as in the provision of paid medical care, are regulated by the provisions of this Federal Law.";

2) in Article 84 of the Federal Law "On the Fundamentals of Public Health Protection in the Russian Federation", replace the phrases "medical services" and "paid medical services" with the words "medical care" and "paid medical care" in the appropriate case.;

3) add a new paragraph 3 to Article 1 of the Law of the Russian Federation "On Consumer Rights Protection", stating it as follows:

"3. The provisions of this Law do not apply to relations arising in the provision of medical care to citizens.".

These innovations will make it possible to fully ensure to all residents of our state the constitutional right to health protection and medical care (part 1 of Article 41) equally.