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Human rights in Ukraine – 2006. XVII. The Right to health care

   

[1]

1. General issues

Article 49 of the Ukrainian Constitution guarantees each citizen “the right to health protection, medical care and health insurance. Health protection is ensured through State funding of the relevant socio-economic, medical and sanitary, health improvement and prophylactic programmes.  The State creates conditions for effective medical service accessible to all citizens. …The State provides for the development of physical culture and sports, and ensures sanitary-epidemic welfare”.

The European Social Charter which Ukraine ratified in 2006 also states that  “with a view to ensuring the effective exercise of the right to protection of health, the Parties undertake, either directly or in cooperation with public or private organisations, to take appropriate measures designed inter alia: to remove as far as possible the causes of ill-health; to provide advisory and educational facilities for the promotion of health and the encouragement of individual responsibility in matters of health; and to prevent as far as possible epidemic, endemic and other diseases, as well as accidents.

  The priority tasks for implementing these constitutional commitments are reform of the system of health care; review of the principles of its financing; formulation of the legislative principles for the introduction of health insurance; fighting the epidemic spread of tuberculosis, HIV-infection and AIDS; reduction in the level of child mortality; and ensuring the development of medical services in rural areas.[2]

It is chronically ineffective use of funding even more than the low amounts which the government allocates for health care - only 3.7& of the GNP - that makes far-reaching reform of the system a vital challenge facing the government.[3]

What is hindering implementation of such reform is the excessive number of “free” medical care guarantees. An unlimited scope of government guarantees for free medicine is incompatible with the restricted means available for fulfilling these commitments. Even the most affluent socially-oriented countries do not assume obligations on such a scale.

The private payments which the public pay for medical services are against the principle of equity. On the other hand, “free” medical care is a myth. Since 1996 the share of individual payments officially paid by the population has risen from 18.8% to 38.5% of the overall spending on health care. If we take unofficial remuneration into consideration, then that figure will rise to 52%. This means that in fact Ukrainians are paying more than half the cost of medical care out of their own pocket. Most of this money goes on medicines.  Widespread payments for health care make it less accessible for the poorer parts of society which infringes the principles of justice and equity. Charges make the poorer put off going to the doctor as a result of which they often only go when the need is already urgent when an illness that might have otherwise been curable has gone beyond that stage.

Informal payments in the area of health care foster corruption. Such informal payments commonly made for medical services are viewed by a lot of medical workers as justified compensation for their low salaries. The volume of these payments is large, and while on the one hand they keep medical workers from abandoning the profession, they do give preference to the wealthy and undermine the transparency of the system, which has a demoralizing effect.  There are cases where doctors demand extra payment for treating their patients with proper care. This has become so habitual in many medical institutions that doctors don’t even talk about it directly: the patient already knows from experience that if s/he doesn’t pay up, this will be reflected in the treatment.  There is believed to be particular corruption over any kinds of medical operations, services during childbirth and examinations using expensive equipment. According to official data from the State Judicial Administration and the Supreme Court, only two people have been convicted under Article 184 of the Criminal Code (violation of the right to free medical care). The offence is punishable by a fine of up to one hundred times the minimum wage before tax or custodial arrest for a period of up to six months.[4]

It must be acknowledged that the present mechanism for funding reduces efficiency of the health care system. “Public funds are allocated, in essence, to support the costs of existing health care facilities and not to achieve health care results. Hospitals face little incentive to reduce the number of admissions, as financing is still based on bed capacity. This creates perverse incentives, resulting in a rise in unsubstantiated hospitalizations. Hospital stays in Ukraine are among the longest in Europe, at an average of 14.4 days. State and communal health care institutions continue to have the status of spending units with very limited rights and incentives to make management and financial decisions that would allow for more efficient use of resources. Allocation of budgetary funds is based on a list of permitted line items, with norms set by the Ministry of Health. Although financing is decentralized, with 80 percent of total funding allocated at the regional and local levels, health care administrators have little authority to deviate from rigid line-item budgets. Budgets are strictly itemized, and the volume of resources set aside for each budgetary item is strictly regulated. Similarly, health care professionals receive fixed salaries set in accordance with a national pay scale, so remuneration bears little relation to quality of work or number of patients seen. Staffing levels are determined in accordance with norms set by the Ministry of Health, most often based on a set standard of hospital beds per 10,000 people”.[5]

Another major problem is the neglected state of primary care. “Too much funding goes on expensive inpatient care, while less costly primary care is neglected. Ukraine has 5.94 hospitals per 100 thousand people, higher than the EU average of 3.2.  Maintaining such a large number of inpatient facilities restricts funding for other purposes. The volume of specialized care exceeds that of primary care, turning the typical “heath care pyramid” upside down. Primary doctors constitute just 26 percent of all doctors, whereas in some European countries the share is as high as 50 percent. Ukraine has only 3,354 of the 33,000 general and family physicians it needs, so hospitals and ambulance services are used to provide routine medical assistance. By one estimate, nearly one third of hospital patients would qualify for outpatient care.[6].

The introduction of health insurance has long been discussed in Ukraine however due to a whole series of obstacles this mechanism for financing health care has not been initiated.  The issue has been discussed widely in society, and both its importance and the different possible points of view make debate on the principles, methods and ways of implementing it in Ukraine heated. At present there are two main competing concepts for introducing health insurance. The first asserts the need to introduce mandatory health insurance based on budgetary funding for the heath care system. The other proposes mandatory health insurance with the involvement of insurance companies, as well as the government.  Supporters of both concepts have tabled their draft laws in the Verkhovna Rada. For example, the first option was proposed in Draft Law № 0944 „On State social health insurance” which in autumn 2003 was not far off getting enough votes to be passed in its third reading in the Verkhovna Rada. At present, there is a new attempt, with Draft Law № 3155-1 „On general mandatory State social health insurance” tabled at the beginning of 2007.  Opponents of this put forward their Draft Law № 3370 for Verkhovna Rada consideration during the pre-2006 election term. That was not voted on, however already in September 2006 Draft Law № 2192 was tabled, this based on involving private insurance companies.

It must be said that each of these concepts has its advantages and shortcomings. The introduction of health insurance oriented on a model of mandatory civil insurance could lead to a regressive character of financing (the poor pay relatively more than the rich), there could be different programmes of services depending on the amount of insurance; competing insurance markets could be created which would almost inevitably lead to less justice, especially with regard to the elderly or those with chronic conditions. In addition, this model of health insurance involves a mechanism for management which is quite complicated to implement.[7]  There have not been any clear moves towards introducing health insurance and this reform which could have realistically helped resolve the problem of funding has been put off indefinitely.

The lack of adequate quality control in health care should also be mentioned. Control over quality is concentrated on the actions of personnel and not on the results of the medical assistance. Unlike private institutions, State and communal medical institutions do not require licensing. Certification of medical personnel is not monitored by self-governing professional institutions specializing in medicine. The quality of medical services remains a major problem. A lot of specialists have left the State sector because of pitiful funding and moved to private hospitals or to some other sphere. Human rights organizations often receive complaints about doctors’ actions leading to grave consequences. Yet due to “corporate solidarity” it is very difficult to prove negligence in court and the Prosecutor is reluctant to investigate such complaints. There are therefore only isolated cases where medical workers have been brought to answer for harm inflicted through inadequate medical care.

There are also problems arising as a result of contradictory legislation. A number of laws aimed at introducing changes remain ineffective, partly due to the government’s inability to provide the relevant rules or instructions on applying the laws. Nor is the legislation working for providing health care institutions with more autonomy via transforming them from budget-funded organizations into State enterprises.

Another problem is that of incomplete decentralization. “As so far enacted in Ukraine, decentralization does not give local or regional authorities discretion over health care spending. Although 80 percent of health care funds are disbursed at the local and regional level, allocations are determined centrally and quite rigidly. There is thus no incentive for smaller communities to pool their resources or to seek efficiency through the closure or consolidation of institutions too small to serve the community effectively, on the contrary, there is every incentive to fight to keep existing facilities operating.” [8]

The problem of infant mortality (in the first year of life) and child mortality (up to the age of 18) remains serious. The Deputy Minister of Health has himself stated that these mortality rates are continuing to rise.[9]  At a special meeting at the Ministry of Health to discuss the problem, the rise in infant mortality was confirmed and broken down into different regions for the first six months of 2006.  With an average for the country of 10.12 deaths per one thousand babies born, in the Zhytomyr region the figure was 14.79, in the Kirovohrad region – 13.98, the Chernivtsi region – 13.26 and Luhansk region – 12.87.[10]

In order to understand the magnitude of the problem, we can take the Zhytomyr region where in 2006 a check was carried out of infant and maternal mortality rates by a special commission set up by the Ministry of Health. The conclusions were not cheering. Over 5 months of 2006, the mortality rate of infants under a year old had risen by 25.7% in the region as compared with the previous year. This level is double that of the average around the country. Among the causes of death were breathing difficulties, injuries and accidents with the latter highlighting considerable problems in the organization of medical care for mothers and their babies.  The overwhelming majority of cases where infants died between 28 days and one year were registered in rural areas (70%). This indicates inadequate work in medical and social preventive care and regular medical check-ups of young children in rural areas. In the first month of life, the main cause of death is congenital defects which were not detected by a scan. In maternity wards in the region there were 5 deaths in the second and third weeks of life, which suggests that the stages for organization of medical care for newborn babies were not being observed properly. There are also problems with equipment in maternity wards in the districts and cities of the region. Only 8 of the 23 wards have respiratory equipment for newborns babies; there were no well rooms in three maternity wards with between 150 and 170 births a year; only 8 hospitals had foetal monitoring equipment. There were problems in the region with finding neonatal specialists and paediatricians, particularly in small and far-off districts. Overall in the region the following posts were vacant: 153 paediatrician jobs; 49 – midwife-gynaecologists; 15 – neonatal specialists and 21 child anaesthetists.   In district treatment and preventive medicine institutions there were shortcomings in the system for monitoring pregnancies these concerning the comprehensiveness and quality of examination, consultation, treatment, timely hospitalization according to the protocols and levels for medical assistance.[11]

Another indicator is also showing an increase each year, this being the number of women dying during childbirth. For example, in the Luhansk region where another special committee from the Ministry of Health worked, it was found that in 5 months of 2006 the indicator for maternal mortality was 50.7% (4 women died, as against one death in 2005). This suggests serious failings in the organization and quality of medical care provided to pregnant women, women who are giving birth or who have done so recently, both in-patients and those treated on an outpatient basis.

  There are virtually identical problems in every Ukrainian region, indicating the scale of the problems which Ukraine must address. Statistical data indirectly shows also that at the local level there is concealment of actual data or manipulation of the figures (for example, by “slipping” infants into a different weight group, weighing them incorrectly, etc). There are also such obvious problems as inadequate professional training of staff on health care for mothers and their babies, staff shortages, especially in rural areas, a lack of a systematic approach to resolving the problems in the field and providing for its material and technical needs. Instead of real plans, vague programmes are put forward, general methods instead of a specific analysis of the shortcomings in order to immediately address them, and abstract noises on the subject of why it is all bad. The instalment of new technology is limping along painfully, while the heads of health care bodies cannot find time to cooperate with the local authorities and bodies of local self-government, or with the law enforcement agencies.  It needs to be recognized that the problem of child mortality has already ceased to be a merely medical problem.

  Rural medicine, despite certain efforts by the government to improve the situation, remains in a dire state. There are neither the specialists, nor medicines, nor the necessary technical and material base. According to information from the Ministry of Health, at present there are almost 300 villages with populations of between 500 and 1,000 people which don’t have hospitals at all. According to the Minister of Health Y. Polyachenko, over the last 10 years nothing was done for rural doctors and the consequence now is a huge shortage of qualified staff in these areas.[12]  Mr Polyachenko said that the Ministry was attempting to conclude agreements with the local authorities. The plan was that the Ministry would take responsibility for training staff, finding equipment, etc, but the local authorities would have to agree to provide proper living and working conditions, the relevant benefits, etc.

Another important problem is the fact that over the last year the market for commercial donors has become much more active.  The Law “On transplants of organs and other human anatomical material” adopted in 1999 obliges doctors to get permission from relatives to use the organs of a person who has died. As a result, Ukraine experienced a shortage in organs for transplants. For example, estimates from the Coordination Centre for Medical Transplants of the Ministry of Health suggest that 1 thousand people in Ukraine may need kidney transplants while there are no more than one hundred such operations a year. However in 2006 there was an unexpected doubling in the number of transplants. Doctors explain it as being an increase in the number of organ transplants from relatives however the reason could lie in a more active market of commercial donors. . It should be noted that in Ukraine only relatives or spouses can legally be donors. Criminal liability is imposed in the Criminal Code for trafficking in human organs, with a possible sentence of up to 5 years imprisonment, however there are many in Ukraine whom this does not stop, and you can see a lot of advertisements offering human organs for sale.

Medical transplant operations are carried out in four centres: Kyiv, Zaporizhya, Donetsk and Odessa. Each potential donor is checked out by specialists from the Bioethics Committee. It’s not possible to carry out such operations in makeshift conditions so it would be very difficult for donors doing it for money to avoid such checks. It is much harder, however, to keep tabs on people who decide to sell their organs abroad. The public authorities prefer not to notice the increase in the illegal market in human organs, while the Prosecutor and Police say that nobody is specifically dealing with trafficking in organs. There have been no criminal investigations instigated over possible cases.[13]

Against a background of reduced social support and declining public health care, Ukraine is suffering two major-scale epidemics – HIV-infection and tuberculosis. According to WHO, Ukraine has one of the highest rates of HIV-infection in the world.

  In the majority of regions the number of people infected, suffering from or having died of AIDS is on the increase. During six months of 2006 8,058 new cases of HIV-infection were recorded among Ukrainian nationals, and 10 among nationals of other countries. 2,393 people living with HIV were diagnosed as having AIDS, including 61 children under the age of 14.  Despite the wide-scale introduction of antiretroviral treatment, there were 1,140 deaths from AIDS, including 17 children. As of 1 July 2006, there were 67 974 people officially registered as having the HIV infection. . This equals 144.3 people living with HIV per 100 thousand head of population (On 01.01.05 this was 133.5 per 100 thousand). In more than 6 thousand cases (6,297) the HIV infection has developed into AIDS.[14]

The highest rates are registered in the following regions: Dnipropetrovsk (356.5 per100 thousand head of population), Odessa (347.5), Donetsk (319.4), Mykolaiv (298,2) , and in Sevastopol (259,2) and the Crimea (221,3). These regions also have the highest number of new cases of HIV-infection.  

Over the last six months the infection was contracted in the following ways: parenteral (in general through injecting drugs)  – 45,3 %; through sexual intercourse – 35,4 %, (predominantly heterosexual)l  from mother to child - 16,4 %, not identified - 4,5 %. In the first two quarters of 2006 3 649 injecting drug users were registered, this being 45.3 % of all those officially registered as living with HIV in Ukraine.

According to monitoring, over six months of 2006 1,285,402 tests for HIV antibodies were carried out in Ukraine, with 15,380 people being identified as HIV-positive (1.2%). The number of people identified as having the HIV infection among pregnant women and potential donors is on the increase. Under the code 108 (donors), 542 people were infected (1.13%) and under 109 (pregnant) – 1,577 women (0.31%)[15]

The situation with the spread of tuberculosis is no less serious. During Government Day in the Verkhovna Rada, the Deputy Minister of Health stated that at the present time there are 84.1 people per 100 thousand of population suffering from tuberculosis.[16]

According to Kirsten Miskinis, Medical Adviser on fighting tuberculosis for the World Health Organization in Ukraine, the main reason for the epidemic is the lack of sufficient government spending to support the system for diagnosing the disease adopted back in Soviet times. At present in Ukraine only the first steps have been taken towards introducing the world-recognized strategy for fighting tuberculosis.  This consists of 5 elements: government support; programmes for the effective identification of cases of the disease; standard short-term chemotherapy; checking for the regular availability of medical remedies; registration and reporting. This treatment strategy makes it possible to effectively fight with the problems with the smallest amounts of funding. However there are also a number of problems which can only be solved through a systematic approach. One of the most difficult of these is the lack of a system enabling the identification and treatment of tuberculosis of particularly serious forms, - drug-resistant tuberculosis. More than 10 percent of those with the disease in Ukraine have specifically this drug-resistant form. The lack of a system for fighting drug-resistant tuberculosis is one of the major causes of the epidemic in Ukraine. Patients with this form which at the present time is practically untreatable, not only themselves cannot get better but continue infecting others.

The Verkhovna Rada Committee on health care, mother and child in 2006 warned that the government has lost control over the spread of tuberculosis. In conditions of political instability, where each year or even more often governments change at the highest level of power, virtually nobody has been taking responsibility for coordinating the anti-tuberculosis work at government level. Major contributory factors for the worsening situation in Ukraine are the lack of a clear strategy for combating tuberculosis at the highest levels, the failure to understand the social essence of the disease, as well as indecisiveness and lack of consistent policy in carrying out the relevant measures.[17]

During the assessment of the present situation with regard to tuberculosis, it was stressed that since the epidemic began no government in Ukraine has proved capable of having any real impact. This can be seen in the comparative figures on illness and death from tuberculosis which are becoming worse every year. Over the last ten years during which the disease has taken on epidemic proportions, the numbers have almost doubled and now stand at over 80 cases per 100 thousand head of population (at the beginning of the epidemic the figure was 50). More than half a million people are presently on the registers of tuberculosis treatment units.  This number rises by almost 40 thousand every year. The number of people dying of tuberculosis has increased by approximately 11 тисяч осіб на рік.  The number of patients whose illnesses is diagnosed at a late stage is rising rapidly. More and more pathogens of the disease are appearing and cases where it is resistant to some drugs and more serious or neglected forms of tuberculosis.

`  A very worrying trend is that young able-bodied people and children are forming a significant number of those with tuberculosis. All of the above points to a low level of early diagnosis and treatment of patients at the beginning stages of tuberculosis when the diseases is most easily dealt with.

  Criticism was also made of the central and local authorities for failure to act, for passiveness in implementing both general and special measures aimed at combating tuberculosis.  Figures were given reflecting the situation in institutions which are supposed to fight this disease. Despite the rapid increase in number of cases of tuberculosis, from 1990 – 2004 the network of tuberculosis treatment units and other specific medical institutions and their number of beds had been reduced by a third.  61 tuberculosis treatment units with 17 thousand places had been closed. Low salaries, regular staff redundancies, the lack of adequate mechanisms to stimulate work and social protection of medical staff of such units had led to a considerable staffing shortage in the tuberculosis treatment service which is at present only 40 percent staffed, with more than half of these being people of retirement age. Work-related illnesses among employees of this service had become 20 times higher over the period in question.[18]

  It must, finally, be noted that audits carried out over the last five years by the Accounting Chamber have unfailingly identified one and the same typical irregularities in the use of government funding allocated for the implementation of the government programme on combating tuberculosis. Most money has been used inefficiently and not as allocated.

  It is impossible to predict how the situation will develop in the future. It is also unclear whether the adoption by the Verkhovna Rada at the beginning of 2007 of a nationwide programme for countering tuberculosis for 2007-2012 will remain merely declarative words, as have previous programmes, or whether on the contrary this will provide the impetus to achieve a gradual improvement in the situation. In any case one can observe an acknowledgement that this is a problem of national importance and one on which the lives of many Ukrainians depends.

Below we review some of the issues of this general overview in more detail.

 

2. Review of legislation

  As mentioned earlier, the main basis for the legal system is the Ukrainian Constitution which defines the approach for formulating policy in all spheres, including that of health care.  It declares human life and health to be of the highest value and states in Article 49 that “everyone has the right to health protection, medical care and health insurance…  The State creates conditions for effective medical service accessible to all citizens. State and communal health care institution provide medical care free of charge; the existing network of such institutions shall not be reduced.”

The Constitution, however, does not define what is meant by medical care, nor does it indicate what kind of health insurance is meant.

The main document providing legal regulation for health care in Ukraine is the Law “On the fundamental principles of health care legislation in Ukraine”, adopted by the Verkhovna Rada in 1992.  This law sets out the organizational, professional, legal, economic and social principles for health care.

Most normative legal acts have been drawn up to develop the provisions of this base law.

In the years since independence, a national normative legal base for the health care system including approximately 900 normative legal acts has been created. These acts per force involve norms from many spheres of law, including civil, criminal, financial, labour and administrative law, social security, etc.

Six laws pertaining to health care were passed during the first year following Independence.  Among the first were “On the status and social protection of people who suffered as a result of the Chernobyl Disaster”; “On the Basic Principles of social protection for people with disabilities in Ukraine” and “On protection of the natural environment”. A law of direct effect was passed “On prevention of AIDS and the social protection of the population” which defined the procedure for legal regulation of issues related to the spread of AIDS in accordance with norms of international law and the recommendations of the World Health Organization. Over the following years a number of amendments were made to this law. A Presidential Instruction approved provisions for creating a National Committee for Fighting AIDS, and in 2000 a Presidential Decree “On urgent measures for preventing the spread of HIV/AIDS” was passed, as well as a number of Cabinet of Ministers Resolutions. In 1999 a “Programme for preventive measures against AIDS and drug addiction for 1999-2000” was passed, and in 2001 a Government Committee on preventive measures against HIV-infection and AIDS was created and is still functioning now.

The problem of social protection for those who suffered as a result of the Chernobyl Disaster remained an issue, and in 1992-1993 supplements were adopted to the Law “On the status and social protection of people who suffered as a result of the Chernobyl Disaster”, with a number of Presidential Decrees and Cabinet of Ministers Resolutions being passed. In 1997 the Verkhovna Rada returned to this issue, passing the Law “On the creation of a Fund for measures on liquidating the consequences of the Chernobyl Disaster and social protection of the population”. In 1998 the Law “On protection from ionizing radiation” was passed.

  From 1992 a number of laws pertaining to the demographic situation, and protection of mother and child were passed. These included: “On government help for families with children” (1992), “On the protection of childhood” (2001) and numerous Presidential Decrees on urgent measures for assistance to families with many children, and improving mothers’ and children’s health. There were also several Resolutions from the Cabinet of Ministers, for example, on protecting families with disabled or sick children, as well as on increasing social protection and material provisions for orphans and children deprived of parental care. 

Various Resolutions of the Cabinet of Ministers adopted national programmes for improving the position of women, the family, protection of the mother and child and family planning. In 1996 a National Programme “Children of Ukraine” was passed, and in 1997 a National Fund for the Social Protection of Mothers and children” “Ukraine for children” was created. In 2006 the Cabinet of Ministers passed a resolution “On approving the Government Programme “Child Oncology” for 2006-2010”.

In 1994 the Law “On ensuring the sanitary and epidemiological well-being of the population” came into force. This law regulates relations arising in this sphere; stipulates the relevant rights and duties of the public authorities, enterprises, institutions and individuals; establishes the rules of procedure for the organization of the State sanitary and epidemiological service as well as for State sanitary and epidemiological supervision. In connection with the adoption of this law, In 2000 the Verkhovna Rada passed amendments to some legislative acts, specifically to the Laws “On protection of the natural environment” (1991); “On information” (1992.); "On consumer cooperation" (1992), to the Cabinet of Ministers Edict “On government supervision over adherence to standards, norms and rules, and liability for their violation” (1993); to the Law “On environmental impact assessments” (1995) and other normative legal acts. To deal with the possibility of an epidemic or grave consequences of infectious diseases, the Law “On protection of the population from infectious diseases” was passed in 2001.

In the light of the Law “On information”, the issue of patients’ right to receive medical information came to the fore. This was reflected in the Judgment passed down by the Constitutional Court regarding the official interpretation of Articles 3, 23, 31, 47, 48 of the Law “On information” and Article 12 of the Law “On the prosecutor’s office”  (the case of K.H. Ustimenko No. 5-ep from 30.10.1997).

The grounds for the submission were the lack of clarity in the application of the above-listed norms by courts of general jurisdiction leading to a violation of constitutional rights.

From 1988-1990 Mr Ustimenko had, at the application of the administration of the Dnipropetrovsk railway technical college, been on the psychiatric register of the Dnipropetrovsk psycho-neurological clinic. The applicant who had learned of this in July 1990 considered that it restricted his chances of finding work and that it had caused him moral and material damages.  In order to seek compensation through civil proceedings, he turned to the Chief Doctor of the clinic demanding to know who had placed him on the register, when and on what grounds; who had been informed of this; by whom, when and on what grounds he had been taken off the register; whether the actions of the psychiatrists in 1988-1990 in limiting his work options had been lawful and who was responsible for the material losses sustained. The Chief Doctor refused to provide the information referring to the confidentiality of doctors’ records. Over almost seven years Mr Ustimenko’s cases was on several occasions with quite different outcomes reviewed by courts of general jurisdiction at all levels. With the final judgment, the applicant’s demands were partially met. He received a copy of his medical card and some other information which, however, he did not regard as sufficient.

  On 27 November 1992, citing Article 37 of the Law “On information”, but without explaining his motives, the Deputy Prosecutor for the Dnipropetrovsk region refused to provide Mr Ustimenko with testimony in the possession of the prosecutor’s office regarding the applicant’s state of health. Mr Ustimenko appealed the Prosecutor’s refusal to provide the information in court.  The court refused to consider the claim on the grounds that a citizen may appeal against the actions of the prosecutor’s office only in cases provided for by the Criminal Procedure Code. These civil suits continued from 1993 – 1996, reaching the Supreme Court.

  Having reviewed the case, the Constitutional Court issued a judgment which included the following: Article 23 § 4  of the Law “On information” must be understood as prohibiting not only the collection, but also the storage, use and dissemination of confidential information about an individual without the person’s prior consent, except in legally established cases and only in the interests of national security, economic well-being and human rights and freedoms; Confidential information shall include personal information (education, marital status, religion, state of health, date and place of birth, property owned, and other personal data; Article 23 § 5 of the same Law must be understood as meaning that every person shall have the right to become familiar with information on him- or herself collected by public authorities, bodies of local self-government, institutions and organizations if this information is not a state or other legally protected secret.

“In cases where medical information is not provided or is deliberately concealed from a patient, his or her family or legal representative, they may appeal against the action or inaction of the doctor directly in court, or should they choose, to the medical establishment or to an office of the Ministry of Health”. The judgment also declared Article 12 § 4 of the Law “On the prosecutor’s office” unconstitutional  in only allowing appeals against prosecutor’s decisions in circumstances set out in that law, since exceptions to constitutional norms are established by the Constitution itself and not by other normative acts.

  In 2006 the problem of receiving information about ones state of health remained an issue, most often when dealing with criminal investigations.

  One can cite the example of Skrypnyk, a 14-year-old boy who lodged an application with the prosecutor’s office to have criminal charges brought against police officers who he alleged had inflicted bodily injuries. Staff of the district hospital which had provided first aid care refused to provide the boy’s legal representative with a copy of the information on the boy’s medical file.  The information gave details about the bodily injuries and was vital for getting a criminal investigation launched. The hospital staff claimed that the record had been lost. This is not the first instance where hospital personnel, having found out the patient received injuries in a police station, refuse to give documentary records of injuries sustained.

  1995 saw the adoption of the Law “On donor blood and its components” which regulates this important area of modern medical practice and provides measures for organizing blood donors, etc. In 1999 amendments were made to this law.

In that same year the Law “On the use in Ukraine of narcotic substances and psychotropic means, their analogues and precursors, and abuse of these” came into force., together with a Law on measures to combat the circulation and abuse of such substances.

In 1996 parliament passed a Law “On medication”, this regulating the creation, registration, production, quality control, use and sale of medicines. The Law also defines the rights and duties of businesses, institutions and organizations, as well as of individuals, and the powers in this area of the public authorities. This Law was later that year supplemented through a number of resolutions of the Cabinet of Ministers, concerning control over immunobiological medication; procedure for purchasing medication; procedure regarding the use of narcotic substances, psychotropic means and precursors.  Four more Cabinet of Ministers Resolutions were passed in 1997 on procedure for the issue of certificates on importing and exporting  narcotic substances, psychotropic means and precursors; on approving rules for retail of medicines; on government control of the quality of medicines and on the creation of a State joint stock company “Medicine of Ukraine”.

  The enormous importance of medication is reflected in further legislative regulation of related issues. This included amendments to the Law “On the use in Ukraine of narcotic substances and psychotropic means, their analogues and precursors, and abuse of these”; the Presidential Decree from 1999 “On improving government control over the quality and safety of food items, medicines and production for medical use”, as well as two Resolutions of the Cabinet of Ministers on procedure for activities linked with the use of narcotic substances, psychotropic means and precursors, and a list of these, passed in 1999, 2000 and 2001.

However, according to practising doctors, the list includes medication about which it would be excessive to use the term “psychotropic effect”. This applies first and foremost to the group of tranquillisers included in №2 Table IV of the List of narcotic substances, psychotropic means and precursors. These are widely used in treating common illnesses. The second problem is that the lack of standardization of the rules and instructions for use of “legally” designated medicines of this group at the intergovernmental level sometimes leads to accusations of illegally bringing psychotropic substances into Ukraine.

A musician from Moscow B. was held for more than two months in SIZO [pre-trial detention centre] No. 27 in Kharkiv. He was accused of smuggling and possession of drugs on the grounds that when crossing the border he hadn’t declared his medication (Phenazepam and Klonazepam). He hadn’t known and couldn’t have foreseen that medication which had been prescribed by a doctor and purchased in a Moscow chemist was listed in Ukraine as “psychotropic substances”. In the information provided with the medicine there is not a word about this. B. was suffering from asthenodepressive syndrome after a serious operation and he sometimes got panic attacks. Thanks to the medication, however, his condition had been improving and he and his wife had decided to take a holiday in the Crimea. Instead, he ended up in a SIZO. At the present time B. is free, however the criminal case launched against him is being examined by the Derhachivsky District Court.

Muscovite architect G. ended up facing criminal prosecution in Ukraine when 27 tablets of the same

Phenazepam was found crossing the border.

In 1996 the provision of medical services for a fee was regulated at a legislative level via the Resolution of the Cabinet of Ministers “On approving a list of paid services provided in government health care institutions and higher medical education institutes”.  Some provisions of the Resolution were however declared unconstitutional in Judgment No. 15-rp/98 of the Constitutional Court (25.11.98) and the list was reduced.

A second judgment from the Constitutional Court on an official interpretation of paragraph three of Article 49 of the Constitution: “State and communal health care institution provide medical care free of charge” was handed down on 29 May 2002 (No. 10-rp/2002)

In 1997 and 1998 a number of laws were passed including: “On charitable work and charitable organizations”; “On declaring null and void some legislative acts of Ukraine on forced treatment and labour re-education of drug addicts”; “The Fundamental principles of legislation on mandatory State social insurance”; “On human organ transplants and other anatomic material”.  In 2004 parliament passed a Law “On banning reproductive human cloning”.

In view of the serious rise in the number of cases of tuberculosis in Ukraine, in 1999 resolutions were passed on comprehensive measures for combating tuberculosis, and specifically the Presidential Decree “On urgent measures for combating tuberculosis" (2000), aimed at improving specialized medical care, the introduction of modern medical technologies, comprehensive preventive medicine and treatment of tuberculosis and its complications.

19 Resolutions of the Cabinet of Ministers were passed in 1999. They pertained to the possible creation of a single government system of control over radiation; comprehensive programmes for radioactive waste; on procedure for protecting the population against ionizing radiation. Others were over the issue of domestic production of insulin; control over the circulation of imported alcoholic beverages; allocating funds for providing medicine for veterans of the War; the creation of a Council on environmental problems of the Dnipro River basin and others. In 2000 the President issued a Decree approving the document “On a Development Strategy for public health care in Ukraine”.

In order to regulate economic relations in the field of health care, parliament passed in 2000 a Law “On procurement of goods, work and services with Government funding” intended to create a competitive market, ensure transparency in the procurement procedure and achieve optimum rational use of Government funding. The list includes medical services. The law was aimed at opening up opportunities for competition on a tender basis for funding from State and local budgets between the State, communal and private sectors of health care.

In order to develop new organizational forms and economic mechanisms for providing the public with medical care, a Presidential Decree was passed in 2000 “On experimenting in Kyiv and the Kyiv region on the introduction of mandatory social health insurance”.

The Cabinet of Ministers Resolutions “On comprehensive measures for introducing a family medicine system of health care” (2000) and “On the creation of an inter-departmental coordination council under the Ministry of Health on inter-branch cooperation among health care institutions” (2000) were aimed at enhancing the quality and effectiveness of medical services, bringing qualified medical and sanitary assistance closer to each family, as well as rational use of health care resources. However ineffective and irrational use of limited budgetary funds remains a major problem. Approximately 80% of all funding is spent on maintaining and servicing costly specialized inpatient medical care which, as mentioned, is in marked contrast to most countries where inpatient treatment makes up around 50% of spending, while up to 30% is channelled into primary health care, working on the principle of family medicine.

Cabinet of Ministers Resolution № 1465 from 27.09.2000 approved procedure for carrying out mandatory preliminary and periodic medical check ups and a list of psychiatric counter-indicators for carrying out certain types of activity (work, professions and services) which can pose a direct threat for a person carrying out such activities or those around him or her.

In 2001 a Law was passed “On combating tuberculosis”. It defines the legal, organizational and financial principles of activity aimed at preventing the spread of tuberculosis of the authorities, bodies of local self-government, enterprises, institutions and organizations regardless of their form of property, type of activity or economic management, as well as individuals engaged in business activities. It stipulates the rights, duties and liabilities of legal entities and individuals in fighting tuberculosis.

The Law “On the protection of childhood” (2001) declares the protection of children to be a strategic national priority aimed at safeguarding the right of the child to life, health care, education, social protection and multi-faceted development.

However such lofty principles do not always coincide with practical application. On 18 August 2006 Olha R., in her eighth month of pregnancy, was detained by officers of the Kyivsky district police station in Kharkiv and taken to the police station. On 20 August she gave birth in the cell-like accommodation in which she was being held in the absence of any medical assistance. The police twice called for an ambulance but the doctors saw no grounds for taking Olha to hospital.  Olha says that the child received an injury to the head during the labour. Thank goodness both mother and child are alive. Olha also alleges that she was beaten in the police station despite being pregnant.

The Kyivsky District Prosecutor did not, however, find Olha’s allegations regarding physical and psychological pressure to be justified, nor did they see any elements of the crime of failure by a medical worker to provide help to a sick person. The Prosecutor’s decision states, for example: “R was looked at by doctors with the following notes having been made … hospitalization in case of contractions at an interview of 10-15 minutes or if the patient’s waters break.”

Among Cabinet of Ministers Resolutions passed in 2001, the most closely linked to health care were those “On approving procedure for carrying out activities connected with the use of narcotic substances, psychotropic means and precursors in treatment or preventive medicine institutions”; “Some issues on implementing the Law “On State social help for poor families”. The relevant Cabinet of Ministers Resolutions approved the makeup of a Government commission on preventive measures against HIV/AIDS, with measures defined for protecting the population and territory from manmade emergences or natural disasters. Some questions regarding registration, register and reporting on infectious illnesses were addressed

Certain aspects of the right to health care protection are regulated by the Civil Code which came into force on 1 September 2005. Chapter 21 of this Code covers non-property rights, and some of the articles here arouse doubts.

Article 281.6 “The right to life” states that pregnancy within twelve weeks may be terminated at the woman’s wish. In cases established by legislation it may be terminated from 12 to 22 weeks. Up to 2004, pregnancy could be terminated on medical grounds up to 28 weeks. Under this item of the Article the foetus is regarded as a child from the 22nd week. This means that even in the event of a serious pathology or complications with the health of the pregnant woman, doctors will not agree to an abortion after 22 weeks. In our circumstances this can often be against the health interests of the woman. Very often the technology used for examining a pregnant woman is outdated, especially in district hospitals and a foetal abnormality is often only discovered after the 22nd week when the woman may already not terminate the pregnancy. This can lead to tragic consequences.

  Ms M approached KHPG. In the 23rd week of pregnancy an ultrasound scan detected that the foetus had a serious abnormality of the blood vessels to the brain. The woman was also found to have a cytomegalovirus (CMV) infection. Despite these complications, the doctor of the district hospital in charge of supervising the pregnancy did not even inform her of the risks, let alone consider terminating the pregnancy. The baby was born sickly and despite the efforts of the neonatal specialists, died of an abnormality of the blood vessels to the brain and cytomegalovirus meningo-encyphalitis.  

  Article 284 of the Civil Code is no less dubious. Paragraph 2 of this Article states that “a person who has reached the age of fourteen and who seeks medical assistance has the right to choose a doctor and the methods of treatment.”  Paragraph 3 then goes on to state that: “medical assistance is provided to a person who has reached the age of fourteen at his or her consent”. It is clear that at 14, the majority of teenagers are not able to realistically assess their state of heath, nor the professional level of the doctor or the need to apply particular forms of treatment.  In our view, up to 18 such complicated issues as the choice of doctor or method of treatment should be made by the legal representatives of the teenager, the parents or those representing them, those treating him or her, adoptive parents, and so forth. The teenager should have the right of consultation, and where there are divergent views, where it is an issue of normal, not urgent assistance, the doctor should choose what is appropriate in the specific instance but must inform the district board of trustees.

  In our view Article 285 of the Civil Code can infringe human rights. Paragraph three of this Article states: “If information about the illness of a person may worsen his/her state of health or the state of health of persons indicated by paragraph two of this Article, or hinder the process of treatment, medical workers may give incomplete information about the state of health of the person and restrict access to certain medical documents”.

  We mentioned earlier the interpretation of the Constitutional Court of Article 23 of the Law “On information”. The Court’s judgment, which is binding on all and must be considered when passing any legal norms, laws and resolutions, prohibited the concealment of any information by medical personnel or institutions from patients. There may be no exceptions which means that Article 285 § 3 of the Civil Code needs to be changed.

  The need for major reform of the health care system is indisputable. Some of the fundamental concepts for development were outlined in the President’s Decree of 2005 “On urgent measures for reforming the health care system” and in the proposals of the Ministry of Health to the draft recommendations of parliamentary hearings on the problems in providing health care services and ways of overcoming them in 2005.[19].

The problems are highlighted by a number of studies. The State Committee of Statistics carried out a survey to ascertain the level of access the public have to health care, medicines and other medical goods, and to also find out how people assess their level of health and the prevalence of ill-health.[20]  In October 2006 10.5 thousand households throughout the country took part in the survey.

The results showed that the number of those households who reported being unable to satisfy their needs for medical care had risen from 13% in 2005 to 14%. The main reason given for medical services being inaccessible, as in the previous year, was the prohibitive cost for the household of medicines or medical services.  Among those with the lowest income, one in six households was unable to receive the medical care they required, against one in seven in 2005. 76%, against 78% in 2005, reported cases where they had not bought medicine because it was too expensive.

Problems remain with access to doctors. In almost half the households where one of the members had not received medical assistance, patients did not have the opportunity to visit a doctor. In four out of five of such cases, the respondents explained this as being due to the high cost of the services. 11% mentioned the lack of the particular type of medical specialist (in rural areas 18%). One in ten said that the waiting list was too long.

Nine out of ten respondents needing medical equipment, a dentist, prosthesis, or medical examinations, had not been able to afford the expense.

Every sixth household where members had needed but not received medical assistance reported cases where the needed treatment had not been available in the hospital. Nine out of ten also mentioned the cost as the reason for not having the treatment.  Among people being treated in hospital, 90% (against 89% in 2005) had taken medicine with them to the hospital; 79% (against 77%) – food; 61% (as in the previous survey) – bed linen.  The percentage of those who had taken none of the above with them remained the same as the previous year – 6%.

Every fourteenth UAH (against every tenth from January – September 2005) spent by the households surveyed on health care services was for informal services (bribes,  remuneration for doctors working without the legal backup – licenses etc).

  The results of the survey suggest that overall in Ukraine 56.0% of respondents are unable to receive proper medical services which is 0.7% less than for the previous survey. More than half of the respondents said that their state of health was satisfactory (57.7%). 17.7% said that they had a chronic medical condition requiring regular medical care.

The opportunity to receive medical care where one lives is a major component of social safety for individuals, the region and the country as a whole. 56.0% (against 56.7% in 2005) said that they were able to receive such services where they lived.  Table 1 shows the clear dependence of availability of medical services on where people live.

 

Table 1

Assessment of the ability to receive medical care at ones place of residence (in percentages)

Are you able to receive the necessary medical care where you live?

 

Yes

No

Urban areas

 

 

2003

42,8

57,2

2004

51,3

48,7

2006

50,4

49,6

Rural areas

 

 

2003

19,5

80,5

2004

21,4

78,6

2006

24,4

75,6

 

The results showed that despite the fact that the majority of medical services are officially still free of charge the main problem in access to health care was in fact not being able to afford it.  As a result of the generally low level of income in the country, medical services remain inaccessible to a significant part of the population. This problem is exacerbated by the shortcomings in he health care system limiting access for many parts of the public, especially those who live a considerable distance from large cities.

 

3.   Patients’ rights

  Ukraine’s Periodic Report on its implementation of the International Covenant on Economic, Social and Cultural Rights:[21] states: „The Fundamental Principles are founded on the main legal norms of the European model, in particular, with respect to the duty to provide medical information to the patient (Article 39); the right of the patient to freely choose his or her doctor and health care institution (Articles 34, 38); the procedure and conditions for consenting to the use of prophylactic, diagnostic and treatment measures (Articles 42, 44), medical confidentiality (Article 40) and consent to medical intervention (Article 43)”.

If we take from the Fundamental Principles [of health care legislation in Ukraine] those Articles which refer to patients’ rights we find the following picture:

A doctor may be chosen directly by the patient or appointed by the head of the health care institution or a department of it (Article 34);

The patient is entitled to ask for the doctor to be changed (Article 34);

Each patient is entitled to free choice of doctor if the latter can offer his or her services (Article 38);

Each patient is entitled, if this is justified by his or her condition, to be admitted to any State-run treatment or preventive medicine establishment at his or her choice if this establishment is able to provide the relevant treatment (Article 38);

The doctor is obliged to explain to his or her patient in an understandable form the state of the patient’s health, the purpose of the proposed examination or treatment, the prognosis for the possible development of the illness, including risk to life and health (Article 39);

The patient is entitled to read his or her medical files and other documents which may be used for further treatment. In particular cases where full information could be harmful to the patient’s health, the doctor may restrict this. In such cases he or she shall inform members of the patient’s family or legal representative bearing in mind the patient’s interests. The doctor shall behave in the same manner where a patient is unconscious (Article 39);

Medical personnel and other persons who in the course of carrying out their professional duties have learned of the illness, medical examination, check up and their results, intimate or family aspects of a patient’s life do not have the right to divulge this information, with the exception of cases envisaged by legislative acts (Article 40);

In using confidential medical information in the educational process, in scientific research works, including in cases where these are published, as well as in special literature, the patient’s anonymity must be ensured (Article 40);

During a period of illness preventing people from working, they shall be entitled to sick leave with payment according to legally established procedure of social security benefit (Article 41);

The consent of a mentally fit patient is needed for applying diagnostic or prophylactic measures or treatment. In emergencies when there is a real risk to the patient’s life, the consent of the patient or his / her legal representative to medical intervention is not required (Article 43).

  The level of public awareness about patients’ rights can be considered rather low, and the question of such rights is not seen as an issue for most people. 20% of those surveyed in a recent sociological study were not interested in this area at all.[22].  In general respondents did not believe that patients’ rights were observed in health care establishments. They assessed the situation in private establishments as a bit better than in State institutions.  Every fifth respondent (22%) said that they had encountered infringements of their rights when turning to State medical establishments. The only right which the overwhelming majority of respondents was confident of was the right to receive medical care (67%). As far as other rights were concerned, the respondents found these observed in less than 50% of cases, while the right to compensation, they believed, was effectively not safeguarded in Ukraine.

  The right to maintenance of quality standards for medical services in State  medical establishments is very often infringed through the lack of medicine, medical equipment and instruments, as well as poor general conditions (36-49%).

  The right to privacy and confidentiality is infringed, although only 7% of those surveyed mentioned this. In cases involving certain illnesses, this percentage is considerably higher. In the first instance there is widespread infringement of the right to confidentiality in relation to patients with socially dangerous illnesses (HIV/AIDS, tuberculosis, hepatitis).

  Among respondents whose rights had been infringed, only every fifth person had tried to exercise the right to make a complaint. Most people in this position had already had negative experience of defending their rights: they had received purely formal responses to their complaints (50%); their complaints had been sent from one department to another (43%) or there had been no response at all (34%).

  The international medical community has adopted a lot of documents outlining for modern times patients’ rights. One of these was the World Medical Association Declaration of Lisbon on the rights of the patient, adopted by the 34th World Medical Assembly (Lisbon, Portugal, September/October 1981) and amended by the 47th WMA General Assembly, Bali, Indonesia, September 1995.  We would also mention the Declaration on the Promotion of Patients’ Rights in Europe (the European Consultation on the Rights of Patients, held in Amsterdam on 28-30 March 1994 under the auspices of the WHO Regional Office for Europe (WHO-EURO)

If one compares these documents with the Fundamental Principles, it can be concluded that overall the fundamental rights of patients have been reflected in Ukraine’s legislation and that the latter in this area complies with international requirements. However the implementation in practice of the requirements and standards of domestic legislation and international documents is a very big problem.

Most attention, in our view, is needed to the following points of the Declaration on the Promotion of Patients’ Rights in Europe

2.1    Information about health services and how best to use them is to be made available to the public in order to benefit all those concerned.

2.2   Patients have the right to be fully informed about their health status, including the medical facts about their condition; about the proposed medical procedures, together with the potential risks and benefits of each procedure; about alternatives to the proposed procedures, including the effect of non-treatment; and about the diagnosis, prognosis and progress of treatment.

2.7   Patients should have the possibility of obtaining a second opinion.

3.1  The informed consent of the patients is a prerequisite for any medical intervention. (also 3.2-3.10 of the Declaration).

4.4   Patients have the right of access to their medical files and technical records and to any other

files and records pertaining to their diagnosis, treatment and care and to receive a copy of their own files and records or parts thereof. Such access excludes data concerning third parties.
4.5   Patients have the right to require the correction, completion, deletion, clarification and/or updating of personal and medical data concerning them which are inaccurate, incomplete, ambiguous or outdated, or which are not relevant to the purposes of diagnosis, treatment and care.
6.1   The exercise of the rights set forth in this document implies that appropriate means are established for this purpose..

6.5   Patients must have access to such information and advice which will enable them to exercise the rights set forth in this document. Where patients feel that their rights have not been respected they should be able to lodge a complaint. In addition to recourse to the courts, there should be independent mechanisms at institutional and other levels to facilitate the processes of lodging, mediating and adjudicating complaints. These mechanisms would, inter alia, ensure that information relating to complaints procedures was available to patients and that an independent person was available and accessible to them for consultation regarding the most appropriate course of action to take. These mechanisms should further ensure that, where necessary, assistance and advocacy on behalf of the patient would be made available. Patients have the right to have their complaints examined and dealt with in a thorough, just, effective and prompt way and to be informed about their outcome.

The Declaration on the Promotion of Patients’ Rights in Europe therefore sets in motion the development of independent structures (organizations) intended to defend patients’ rights.

 

ЛИССАБОНСКАЯ ДЕКЛАРАЦИЯ О ПРАВАХ ПАЦИЕНТА
принята 34-ой Всемирной Медицинской Ассамблеей, Лиссабон, Португалия, сентябрь/октябрь 1981 года.

Врач должен действовать в интересах пациента сообразно своей совести, с учетом юридических, этических и практических норм той страны, где он практикует. Настоящая "Декларация" утверждает основные права, которыми, с точки зрения медицинского сообщества, должен обладать каждый пациент.

Если в какой-либо стране положения законодательства или действия правительства препятствуют реализации нижеперечисленных прав, врачи должны стремиться всеми доступными способами восстановить их и обеспечить их соблюдение.

а) Пациент имеет право свободно выбирать врача.

б) Пациент имеет право получать помощь врача, независимо от посторонних влияний в своих профессиональных медицинских и этических решениях.

с) Пациент имеет право, получив адекватную информацию, согласиться на лечение или отказаться от него.

d) Пациент имеет право рассчитывать на то, что врач будет относиться ко всей медицинской и личной информации, доверенной ему, как к конфиденциальной.

е) Пациент имеет право умереть достойно.

f) Пациент имеет право воспользоваться духовной или моральной поддержкой, включая помощь служителя любой религиозной конфессии, или отклонить ее.


Declaration of Lisbon

World Medical Association Declaration of Lisbon on the rights of the patient

Adopted by the 34th World Medical Assembly, Lisbon, Portugal, September/October 1981,
and amended by the 47th WMA General Assembly, Bali, Indonesia, September 1995,
and editorially revised at the 171st Council Session, Santiago, Chile, October 2005 

Recognising that there may be practical, ethical or legal difficulties, a physician should always act according to his/her conscience and always in the best interest of the patient. The following Declaration represents some of the principal rights which the medical profession seeks to provide to patients.

 

Whenever legislation or government action denies these rights of the patient, physicians should seek by appropriate means to assure or to restore them.

 

  (a)  The patient has the right to choose his

  physician freely.

  (b)   The patient has the right to be cared for

  by a physician who is free to make clinical

  and ethical judgments without any outside

  interference.

  (c)   The patient has the right to accept or to

  refuse treatment after receiving adequate

  information.

  (d)  The patient has the right to expect that his

  physician will respect the confidential nature

  of all his medical and personal details.

  (e)   The patient has the right to die in dignity.

  (f)   The patient has the right to receive or to

  decline spiritual and moral comfort including

The experience of the Kharkiv Human Rights Protection Group [KHPG] Public Reception Centre suggests that the public need to receive independent legal consultations and professional assistance in standing up for their right to medical care.

In 2006 1,211 people approached KHPG with various problems. 38 (3.14% of the overall number) directly indicated infringements of their rights in medical establishments. The complaints can be broken down as follows::

30   inadequate medical examination;

6   the lack of adequate information about their state of health;

1  divulgence of information about their state of health;

1  inadequate treatment.

However in 27 other cases where the main reason for the complaint was, say, the courts or penal institutions, allegations were also made of poor treatment or inadequate medical examples.

We thus see that most violations were linked with the right to qualified medical assistance (Article 6 of the Fundamental Principles), primary, secondary (specialist) or tertiary (highly-specialized in complex cases – Article 35).

In second place were violations of Article 39 of the Fundamental Principles on the duty and conditions regarding the providing of information.

  One complaint was linked with a violation of Article 40 on medical confidentiality.

  In implementation of the recommendations of the World Health Organization and the Council of Europe a draft law “On patients’ rights”, drawn up by National Deputy S. Shevchuk, was tabled in the Verkhovna Rada. The draft law unfortunately had considerable shortcomings and was rejected.

  It should be noted that Article 43 of the Fundamental Principles points out the need for the consent of the patient, information in accordance with Article 39 of that law, for the application of diagnostic or prophylactic methods and medical treatment. However the way this “informed consent” is expressed is not defined with the law not stipulating the need for the consent to be in writing. Only in cases where a person refuses to continue treatment and after a once again verbal, explanation about the possible serious consequences, does the doctor have the right (but is not obliged to) receive written confirmation from the patient of his or her refusal to continue the treatment.  It is reasonable to ask what and how much the patient was informed and therefore what he or she is actually rejecting. Practice suggests a wide range of possible answers.

 

4.   Fee-paying medicine

The first attempt to legalize fees for medical services was made by a Resolution of the Cabinet of Ministers of Ukraine on 17 September 1996. However following a constitutional submission by 66 National Deputies, the Constitutional Court found some of the provisions of this Resolution to be unconstitutional and revoked them (Judgment from 25 November 1998 №15-rp /98).

With this Judgment the Constitutional Court for the first time gave a definition of “medical care”, stating that this includes treatment, prophylactic measures carried out in the case of illness, injuries, childbirth, as well as medical check-ups and some other forms of medical work.  The content of the concept of “medical service”, close to that of “medical care”, remains to the present day undefined not only in normative acts, including in the above-mentioned Resolution, but also in medical literature. The Constitutional Court separated cases where charging fees for medical services was unconstitutional from services which the State cannot take it upon itself to finance in State-run health care establishments (paramedical services), with the latter remaining in the Cabinet of Ministers Resolution.

The Constitutional Court focused its attention of the practice of voluntary donations which should be carried out in the appropriate legal forms and according to the procedure set out in the Law “On charitable work and charitable organizations”, and a camouflaged form of payment for medical services directly into the coffers of a State-run health care establishment.

On 29 May 2002 the Constitutional Court  returned to the question of providing an official interpretation of the provision in paragraph three of Article 49 of the Constitution – “State and communal health care institutions provide medical care free of charge” on the submission of 53 National Deputies.

What in our view is important in this Judgment is not only the confirmation that free medical care means the absence of the obligation for any citizens to pay for the medical care provided in State and communal health protection institutions, but also the stipulation that this is prior to, during or after the service. “Medical care free of charge” means that no payment may be extracted for such care in any form, whether through cash or not, whether under the guise of “voluntary contributions” to various medical funds, or in the form of mandatory insurance payments (contributions) etc”.

This final point warrants particular note. On the basis of its study the Constitutional Court considers that paragraph one of Article 49 of the Constitution ensures the right of each person to heath insurance, that is, not to mandatory, but to voluntary health insurance. With regard to State health insurance, its introduction will not contradict the constitutional instruction that “State and communal health care institutions provide medical care free of charge” only if the payers of mandatory insurance payments (contributions) are organizations, institutions, businesses and other economic parties engaged in business activities, State funds, etc.  The deduction of such payments (contributions) from individuals in the system of State health insurance will not comply with the constitutional provision under interpretation since it will be one of the forms of payment for medical care provided in State and communal health care institutions.

We would stress that the Constitutional Court’s Judgment makes it impossible to introduce mandatory State health insurance where the compulsory payments are imposed upon individuals. This point is often ignored by Deputies who table draft laws on the given subject.

Yet despite the Constitutional Court’s Judgment, the Cabinet of Ministers is planning (the Verkhovna Rada has not yet considered all the necessary draft laws) to collect a single social contribution which will include medical social insurance, with these contributions being made by both employers and those with social security (see Table 2).

 

Table 2

Contributions 5 years after the introduction of a new system of social insurance

 

Against accidents

Against unemployment

Pension

Medical

Total

Current legislation

Employer

1,4%

0,9%

22,1%

4,2%

28,6%

37,5%

Individual covered

0,9%

9%

2,5%

12,4%

3,5%

 

5.  Health insurance

  The concept of social insurance was approved in 1998 with the adoption of the Law “The Fundamental principles of legislation on mandatory State social insurance”.  At the present time there are four funds serving four types of insurance: a pension fund; an Industrial accident and occupational diseases which have caused disability Fund; an Unemployment insurance Fund; and a Social Insurance Fund for Temporary disability and expenses related to maternity leave and funerals. Article 4 of this Law mentions health insurance as another mandatory form of State social insurance. However no draft law on introducing mandatory State health insurance has been passed by the Verkhovna Rada. (two draft laws similar in essence, No.  4505 and  4505-1 were considered by the Verkhovna Rada in the pre-2006 elections term).

  In 2006 the most public attention was aroused by a draft law “On funding health care and health insurance” (No. 2192 from 19.09.2006).

  The draft law proposes establishing procedure for attracting extra funding for the health care system while also introducing delineation into two organizational and financial programmes:

-  State social medical provisions funded from a consolidated budget which must ensure a minimum guaranteed level of medical care in State and communal health care institutions for all citizens and in full for certain categories;

-  Mandatory health insurance through compulsory contributions which should be paid in equal proportions by employers and bodies of local self-government in the case of those employed, and by the bodies of local self-government and social security funds in the case of people who pay various forms of single taxes, or the self-employed, as well as those who receive social security support; by working individuals for those in their care (not including children)

Responsibility for implementing the programme is to be vested with a State health insurance organization, then later with a Health Insurance Centre to be created by all parties to health insurance.

  The draft law envisages stipulating basic principles for the development of voluntary health insurance and the provision of medical services at a fee as an additional source of financing for health care, as well as certain organizational changes to the system of health care.

  According to the draft law, patients would be restricted in their rights to medical care of a particular quality, the scope of which would be foreseen by the State programme for medical provisions, the Programme for mandatory health insurance, the programmes for voluntary health insurance or by contract.

  In addition, the State programme for medical provisions would stipulate which categories (such as orphans, young men doing military service, convicted prisoners, and others) were eligible for more than the normal life-maintaining level of health care in State and communal health care institutions and this would be financed fully from the State programme.

Other than these categories, only insured individuals would be entitled to more than the life-maintaining level.

One would note that these norms infringe the requirements of Article 49 of the Constitution regarding the duty of the State as being to create conditions for effective medical care available to all.

The Constitutional Court’s Judgment of 29 May 2002 clearly states that health care free of charge should be provided to all citizens in full measure, this including medical care not only directing at maintaining life.

  The draft law breaches the principle of free choice of doctor and health care institution (Article 6 of the Fundamental Principles), as well as the principle of equal rights and universal availability of medical care (Article 4 of the Fundamental Principles). It clashes with Articles 142 and 143 of the Constitution and Articles 61 and 67 of the Law “On local self-government in Ukraine” which stipulate that territorial communities themselves determine how budgetary funds are to be spent, while spending of bodies of local self-government arising as a result of decisions of the public authorities and previously not provided for by the relevant financial resources are compensated by the government (health care establishments are mainly financed out of local budgets).

Nor to a large extent is the draft law coordinated with programme documents in force at the present time. This concerns, for example, the Presidential Decree “On a Development Strategy for public health care in Ukraine” on the directions and stages for reform of the health care system, as well as the “Programme of actions of the Government on developing health care and medicine in Ukraine”.

The introduction of general mandatory State social health insurance is foreseen by the ““Fundamental principles of legislation on mandatory State social insurance”

  Another draft law “On general mandatory State social health insurance was also under review in the Verkhovna Rada.  The draft law had been passed in its second reading on 17 January 2001 however it was not supported by the Verkhovna Rada in its third reading.

The conceptual project under consideration provides a kind of alternative to the above-mentioned documents. There are very cogent grounds for the emergence of such an alternative since experience of moving from a purely State budget to an insurance-based system of financing of medical care (in the first instance this concerns the Russian Federation), demonstrates that such a transfer is accompanied by numerous adverse consequences, first and foremost, a rise in overall expenses (this is indicated in resolutions rejecting draft laws on general mandatory State social health insurance). There are also infringements of the system for financing medical establishments, combined with a lack of any real improvement in the quality of medical services and at the same time the retention of the “informal” forms of payment for provision of such services (this practice also exists in the case of patients who have treatment on the basis of voluntary health insurance in Ukraine).

The main reason for this, in our view, is the lack of an effective intermediary on the market for medical services that could ensure proper organization and protection of the rights of the person insured. With regard to this, it should be noted that in the course of the evolution of systems of social health insurance in EU countries, where this type of insurance is reasonable successful at ensuring a problem level of social guarantees, the role of such an intermediary is undertaken by a mutual insurance society – hospital funds created in the main directly at enterprises.

  Instead, the draft envisages making insurance organizations acting on civil-legal principles in accordance with the Law “On insurance” responsible for protecting the rights of insured individuals. The draft law makes an attempt, when creating a system of mandatory health insurance, of combining the positive elements of social and civil-legal insurance which, incidentally, has no direct precedents in world practice. In many cases, at the present time, insurance organizations and hospital funds play the role of intermediary in legalizing fee-charging medical services in State and communal health care establishments. One is therefore doubtful about the possibility of their reorientation to become patients’ representatives.

 

6.   Medical liability and doctors’ rights

  The Criminal Code in force from 2001 and the Civil Code of 2003 have established a wide range of actions for which medical personnel bear criminal or civil law liability.

  At present doctors may be prosecuted under the following Articles of the Criminal Code: 130 “Infecting a person with HIV or another incurable infectious disease”; 131 “Inadequate fulfilment of professional duties leading to a person becoming infected with HIV or another incurable infectious disease”; 132 “Divulging information about a medical test for HIV or another incurable infectious disease”; Article 134 “Unlawfully carrying out an abortion”; 138 “Unlawful medical treatment”; 139 “The failure by a medical worker to provide medical care to a patient”; 140 “Inadequate fulfilment of professional duties by a medical or pharmacy employee”; 141 “Violation of patients’ rights”; 142 “Unlawful experimentation on a human being”; 143 “Breach of legally established procedure for human organ or tissue transplants”; 144 “Forcing somebody to become a donor”; and 145 “Unlawful disclosure of a medical secret”.

Officials of hospitals (the director, chief doctor or head of department) are also quite often accused of misuse of their official position (Article 364 of the Criminal Code); work fraud (Article 366); professional negligence (Article 367) or taking a bribe (Article 368).

According to figures from the Ministry of Internal Affairs, in 2006 7 crimes were registered with criminal investigations launched under Article 139. One person was convicted in 2006 under Article 139 and under 140 – 7 people. Under Articles 141-145 of the Criminal Code during the year there was not one conviction.[23].  However, according to information held by the Kharkiv Human Rights Protection Group, three court cases are continuing under Article 143. In two cases first instance courts have passed verdicts over charges of breaching legally established procedure for human organ or tissue transplants. Appeals against these verdicts are still being heard.

The Civil Code has also not ignored doctors, imposing civil-law liability for some acts: compensation for damages, crippling a person or in causing other damage to a person’s health” (Article 1195). There are quite often civil compensation claims for moral damages against doctors (Articles 1167, 1168).

On the basis of the very wide list of Articles imposing liability as well as the extremely high price of a doctor’s mistake which are in no way in keeping with doctors’ working conditions, an “All-Ukrainian Project to Protect Doctors’ Rights emerged[24],. This takes a different perspective, looking at doctor – patient from the point of view of the doctor. The experts on this project have identified a new type of patient – “patient racketeer” who files suits with the court without any ground demanding incredible amounts in compensation for damages. The project also mentions that “insurance companies, societies for consumer (patient) rights and other organizations with a huge army of hungry lawyers have appeared on the medical market. As a result, doctors once again became convinced of the need for legal defence. Yet the question arose, who was in a position to achieve this. A general practice lawyer is not au fait with the specifics of the medical profession. Only a lawyer with medical training could achieve this (A.P. Zilber, 1999, 2000)”.  The problem is thus the readiness of general courts to examine one of the complicated categories of so-called “medical” cases demanding special medical knowledge and an analysis of a huge amount of official documentation. The need accordingly arises for specially trained lawyers able to provide qualified representation of the parties’ interests in such cases both with the public authorities and in the courts.

 

7.  The Army and patients’ rights

Major problems pertaining to patients’ rights arise because Ukraine has a conscript army. For young men there is a constitutional obligation (Article 17) to serve for one year in the Armed Forces unless they have legitimate social, ideological or educational reasons for having the duty waived. The violations of the rights of pre-conscripts, conscripts and soldiers as patients are directly linked with the general level of medical services for the public. The Armed Forces are hostage to an unreformed medical system with this having an effect on the level of supervision over children and teenagers, the level of medical care to teenagers with chronic medical conditions, and especially the level of medical examinations of teenagers and young men by medical commissions of the District or Regional military registration and enlistment offices, as well as medical establishments where expert examinations are carried out at the instruction of  a military registration and enlistment office.

A contract army will also have problems with unhealthy soldiers if health care does not undergo a radical overhaul. There is however a crucial difference. When taking on people for contract service, military doctors will be inclined to not take those in ill health who will then need to be paid compensation under the contract. Nevertheless, figures showing the number of military servicemen transferred to the reserve due to their state of health are staggering.  During 2006 military medical commissions of military medical establishments of the Ministry of Defence  declared as unfit (or of restricted fitness) for military service 7,375 military servicemen, of whom officers, ensigns and servicemen on contract accounted for 5,950, while there were 1,425 soldiers on military service.[25]

Unfortunately nobody is inclined to carefully examine conscripts and pre-conscripts (those being prepared for call up) even though it is dangerous and costly to have conscripts in ill-health in the army, for the young men themselves, for the army and for society as a whole. It is these conscripts who most often become victims or find themselves in situations involving hazing. They are very often also the carriers of infectious diseases – HIV, hepatitis, etc.

A person may be released from military service due to his state of health. The rules of procedure both for military service and being released from it are regulated by Orders №2 and №207 of the Ministry of Defence which contain a list of illnesses and procedure for examination of conscripts and pre-conscripts, as well as “Regulations on the preparation for and holding of call-up for military service”.

All young boys who have reached the age of 16 are considered to be pre-conscripts and by law they are examined in the year when they are to turn 17.  All young lads go through this regardless of their state of health, social position, educational situation or convictions.

The Kharkiv Human Rights Protection Group has been involved in defending the rights of pre-conscripts, conscripts and soldiers for over 14 years. As a rule it is the parents who approach us, or the conscripts themselves who complain of an inadequate examination by the medical commissions of the District or Regional military registration and enlistment offices, or by a medical establishment on the request of the offices. Some complain that their chronic medical conditions have not been taken into account. .

In checking such complaints we usually encounter a number of standard infringements by medical staff, as well as inadequate responses by the parents of the conscripts or pre-conscripts, unawareness of their rights and duties. This makes it possible for the district or regional military office medical commissions examining the young lads to disregard current legislation.

Very often, for example, parents don’t keep medical documentation about their children’s chronic conditions or do not have them registered with the relevant specialists when changing to another clinic. They don’t appreciate their responsibility for the health of their children and don’t take them to specialists either through lack of money or because they don’t trust doctors.

This means that pre-conscripts’ medical records often do not contain documentary proof of diagnoses, injuries, medical operations, etc. The lack of such documents, even where the complaints are mentioned, usually means that the young lad is declared able to serve. Parents of pre-conscripts do not often seek help at this stage even though the law with regard to their child has already been violated. This means that at call-up stage, the medical commissions are dealing with incorrect and incomplete information about the conscript which makes it difficult to reach a proper decision about their eligibility.

For example, Ms M from the Kharkiv region approached KHPG. She asserted that her twin sons had been in ill health since childhood but that the medical commission was not agreeing to examine them properly. They were first examined by the KHPG medical expert who found grounds for sending them to a neuro-pathologist. The results of the latter examination were accepted as reason for waiving military service for both brothers on medical grounds.

  If parents of a pre-conscript draw attention to an inadequate conclusion of a medical commission, they can seek to have it revoked by getting another examination, either arranging this independently, or via the military office medical commission, with this examination according to the law being carried out free of charge.  Parents often have difficulties communicating with the call-up medical commission and sometimes they are simply not allowed in. This is in breach of Article 154 of the Family Code according to which parents are considered the legal representatives of their children and have the right to represent them in all public authorities.

  Refusal to have an additional examination and the lack of money to pay for such an examination are, as a rule, what prompts people to turn to KHPG at this stage. Most often the young lads have not been diagnosed properly and we seek a proper examination.

Since 2000, KHPG, together with the section of legal assistance of the Kharkiv Regional Union of Soldiers’ Mothers and a working group of the International Society for Human Rights – Ukrainian Section, have been monitoring the quality of the call-up. Questions are directed to military units about the state of health of conscripts from Kharkiv and the region, about any asocial or suicidal tendencies, attempts to run away, etc. The answers received give grounds for drawing conclusions regarding the general quality of the selection process, which we would rate as generally low.

  A medical system ridden with corruption cannot adequately assess the state of health of young people, and the lack of accountability makes it even more dangerous. We encounter cases where young men with psychological disorders or people suffering from hepatitis C or B, or who are HIV-positive end up in the army. Unlike other countries that still have a conscript army, there is no law in Ukraine allowing for a suit to be brought against a medical commission or establishment which gave an incorrect diagnosis. Moreover, conscripts often have money demanded of them during the examination. We encounter direct demands for bribes for confirmation of illnesses which are in fact real.  In the case of conscript S, for example, who suffered from stomach and duodenum, a doctor demanded a bribe of 680 UAH to write the diagnosis “ulcer”. In another case, for an X-ray description of the skull after a brain injury, a neuro-pathologist demanded a bribe of 200 USD.  In both cases, we had to turn to the regional department of health and the management of the medical institutions.

Orders №2 and №207 of the Ministry of Defence, giving a list of illnesses, procedure and forms for medical examinations have a number of serious shortcomings. They do not take into consideration the present state of health of young people and the social specific features of conscription. The list of illnesses focuses on irregularities of body organs, present at the time of the examination. They seldom bear in mind the fact that a young man found fit for military service will find himself in conditions of heightened psychological and physical pressure, and often stress. The list of illnesses and accompanying explanations should therefore allow for the consequences of such pressure. This applies particularly to illnesses involving bones, muscles and connective tissue (Articles 69-74); disorders of the endocrinal system (Articles 11-12); digestive disorders (Articles 51-58); disorders of the nervous system (Articles 21-24); and especially psychological disorders (Articles 4-20) which are generally incompatible with military service. It is under these Articles that most infringements occur during call up and our monitoring shows that these are of a systemic nature.

Perhaps the major factor with mistakes when determining fitness for military service is the lack of knowledge of medical staff of even the inadequate legislation available in the form of Orders №2 and №207. As a rule the doctors of general State or communal health care institutions for the city and region examine the conscripts as for any patients, not giving any consideration to the specific circumstances that the young men will be in.  For example S., who was found on a scan to have a diffuse thyroid disorder, was not sent by an endocrinologist for thyroid tests, as required by Article 12 of the Order. During a conversation it became clear that the doctor was generally unaware of the legislation for military service. This unfortunately is the rule, rather than the exception.

These problems with calling up young men in ill health probably have a socio-economic basis. After all the budget allocates only 7 kopecks (!) [the cheapest bus fare in Kharkiv is 25 kopecks – translator) on a first medical examination, and each additional examination decreases the overall amount spent on examining the needed intake.  It is because of lack of financing that despite domestic and international reports suggesting epidemic levels of AIDS/HIV-infection, and hepatitis C and B, the Regulations on the call up do not contain special articles stipulating a mandatory test on at least those otherwise found to be fit for military service. In autumn 2006, during a voluntary blood test already in the military unit, one new conscript was found to be a carrier of the hepatitis C virus.

After each call up period in spring and autumn we learn of soldiers moved to the reserve due to hepatitis C, and sometimes AIDS. The number of such cases is likely in fact to be considerably higher since such infection is generally only discovered during voluntary blood tests among forces of the Ministry for Emergencies, defence units, or among soldiers who end up in a hospital with a clinic for hepatitis. Personnel of military hospitals believe the numbers of those infected to be higher. The government therefore needs to increase spending on examining conscripts, especially for dangerous infectious illnesses and to make the necessary amendments to Orders №2 and №207

One major problem is that young lads in ill health who are called up for military service often come from low-income families. They frequently want to do their service in order to improve their social status and have the opportunity to serve after the army in the police force, in security agencies, etc. They therefore say nothing about their health and may even conceal documents about their illness. In such cases the first examination is very important, and we often find a very superficial examination of young lads from socially vulnerable families who do not have documents about their illness. To avoid such situations we would suggest shared liability of doctors for incomplete or inaccurate information, together with the young lads and their parents for deliberate concealment of information, and teachers who give inadequate references. Personal liability should also be introduced for doctors and health care institutions for an incorrect diagnosis, especially if the army incurred expense on treating an ill lad, or where the call up had serious consequences because of his illness.

  Lacking the money for proper examinations, military office medical commissions often endlessly examine obviously unfit candidates, sending them away for 3 or 4 call up terms, and not taking a final decision. Nobody counts the cost of this. M had received deferments 4 times, and it was only our medical experts examined him, that he was sent for an additional examination, and found to be unfit for military service.

There are also a lot of problems with military medicine. KHPG constantly receives complaints of unqualified, inadequate or sloppy work by military doctors, especially in districts far removed from the regional centres, as well as of inadequate medical care for those with army disability status.

There are several reasons for this.  There are, first of all, stereotypes from Soviet times, where soldiers with medical problems were from the outset treated as though they were pretending. Secondly, there is a generally low level of humanitarian training of military doctors, psychologists, etc. A third reason can be not approaching higher level medical establishments (regional or garrison hospital) in timely fashion due to an inadequate or negligent attitude to young men’s health by the commanders of the relevant military units.

  In 2006 and early 2007 there were several flagrant examples of violations of patients’ rights in the army. One of the most tragic involved S. from Kharkiv who was doing his service in the Odessa region. In March 2005 he first complained of pain in his foot. Despite repeated complaints, even after the foot began swelling, no action was taken.  Doctors only paid any attention when the swelling got so bad that he couldn’t put his boot on. Yet even then a diagnosis was not made. The commander of the unit deliberately concealed information from the young man’s mother. It was only after three months that S, already in a very bad state, was sent to the Odessa district military hospital where he was diagnosed as having Ewing’s sarcoma on the left heel. He was operated on and treated at the Central Military Hospital of the Armed Forces. Despite the treatment, the cancer had had time to spread and S died in 2006.

 

8.   Recommendations

1. Pass a Law “On amendments and additions to the Law “On the fundamental principles of health care legislation in Ukraine”, to ensure that the Fundamental Principles comply with modern requirements of international and domestic law. The amendments should be aimed at the following:

  • providing a clear legal definition of “medical care”, “medical services”, “medical practice” and “auxiliary services in health care”;
  • regulating approaches to determining the list of medical services and medicines and other products with a medical purpose, the cost of which is either not covered or is only partially covered by the State Budget; defining how patients can share a role in paying for such medical services, medicines and other products with a medical purpose;
  •  improving regulation of the procedure for ensuring the right to freely choose ones doctor or health care establishment;
  • defining clear procedure for free choice and change of primary care doctors;
  • primary care doctors keeping registers of the patients under their care;
  • introduction of patients’ access to inpatient and specialized outpatient care solely on referral by a primary care doctor, provided on the basis of the relevant medical indicators; prepare a clear list of conditions under which patients have the right to make a direct appeal for free inpatient and specialized outpatient care without such a referral;
  • establishing clear medical and legal criteria for hospitalization, refusing to hospitalize somebody; treatment and discharge from hospital.

2.  Adopt a new version of the Law “On the use in Ukraine of narcotic substances and psychotropic means, their analogues and precursors, and abuse of these” (2000) which allows for health care institutions regardless of their form of ownership to hold, transport, procure, sell, produce, use or destroy narcotic (psychotropic) medicines and precursors included in No. 2 table IV of the List of narcotic substances, psychotropic means, and precursors

3. Urgently improve Ukraine’s legislation regarding the development of legal mechanisms for financing the system of health care.

 4. Submit draft laws on amendments to the Budget Code of Ukraine, and the Laws “On local self-government in Ukraine” and “On local State administrations” aimed at ensuring the effective combining of financial resources for the health care system with the medical risks at regional level.

5. Introduce a course on Medical Law in higher medical educational institutes’

6. Prepare textbooks and other study material for teaching a course on Medical Law

7. Create a network of independent centres of “Law-based medicine” on the basis of civic organizations.

8. Introduce amendments to the Constitution of Ukraine or initiate a new review concerning the interpretation of “free of charge” by the Constitutional Court.

9. Define at legislative level a base model for organizing medical funding: i) funding from the State and local budgets; ii) mandatory social health insurance; and iii) medical insurance on a civil agreement basis;

10. In order to have the draft law “On financing health care and health insurance” (№2192) brought in as well as in order to carry out further reforms of the health care system, the following are needed:

  • the introduction of contract relations between the party paying (i.e. the patient) and the party providing the medical services (a physical or legal entity);
  • definition of the status of the health care institution as the provider of medical services with the relevant rights and powers, for example, reorganizing communal health care institutions into non-commercial communal enterprises;
  • acceleration of the implementation in practice of national standards and protocols for providing medical care;
  • procedure for the creation of State and communal commissioning for providing the Ukrainian public with medical services;
  • definition of the patients’ rights and duties;
  • informing patients as consumers of medical services about the procedure for receiving these services and ensuring transparent access to medical information;
  • ensuring the possibility of alternative mandatory health insurance at the individual’s choice – both in the form of social and civil insurance.

In order to improve the quality of call up to military service:

  1. Urgently review Orders № 2 and  207 of the Ministry of Defence, taking into consideration the state of health of young men of call up age, conditions of military service and socio-economic problems;
  2. Introduce doctors’ personal liability for allowing the call up of somebody who is ill;
  3. Introduce administrative liability for deliberately concealing information about the health, psychological state and level of social adaptation for conscripts, their parents, teachers and doctors of all health care institutions responsible for providing medical documentation to medical commissions of district and regional military registration and enrolment offices.
  4. Ensure compliance with the Judgment of the Constitutional Court of Ukraine from 30 October 1997 in the case of K. Ustimenko, with regard to issuing medical documentation of conscripts to their parents or legal representatives;
  5. Increase budgetary spending on medical examinations for conscripts, especially on latent infections, such as hepatitis C, B, AIDS and tuberculosis.
  6. Ensure that all doctors who have any dealings with expert assessments regarding fitness for military service are familiar with the requirements of Orders № 2 and  207..


[1]  By Andriy Rakhansky, Inna Zakharova, Yevhen Zakharov, KHPG and Maxim Shcherbatyuk, UHHRU.

[2]  Cabinet of Ministers Resolution № 733 from 25 May 2006 “On summarizing Ukraine’s socio-economic development in the first quarter of 2006”

[3] “The State and the Citizen: Delivering on Promises”, Analysis of socio-economic policy carried out by the Blue Ribbon Commission in 2006.

[4] „The right to health care” www.helsinki.org.ua/index.php?id=1152704590

[5]The State and the Citizen: Delivering on Promises”, Analysis of socio-economic policy carried out by the Blue Ribbon Commission in 2006.

[6]  Ibid

[7] „What kind of health insurance should there be in Ukraine?”. http://www.helsinki.org.ua/index.php?id=1162997437

[8]  The State and the Citizen: Delivering on Promises”, Analysis of socio-economic policy carried out by the Blue Ribbon Commission in 2006

[9] V.V. Chornomorska: Rising infant and child mortality in Ukraine: the Ukrainian Medical website Hypocrites  www.hippocrat.com.ua/publicism/death-rate/

[10]  M. Bernyk, S. Ternova: Last place can prove shameful // Your health № 28 (855) from 22-28 July 2006 http://vz.kiev.ua/med/28-06/2.shtml

[11] Ibid

[12]  The Minister of Health is convinced that rural medicine has a future

 http://www.podrobnosti.ua/health/2006/01/21/279554.html

[13]  Trafficking in human organs is booming in Ukraine http://korrespondent.net/main/182831/

[14]  Statistics from the International HIV/AIDS Alliance in Ukraine:

 http://www.aidsalliance.kiev.ua/cgi-bin/index.cgi?url=/ua/library/statistics/index.htm

[15] Ibid

[16] Government Day in the Verkhovna Rada, 14 March 2006

http://portal.rada.gov.ua/control/uk/publish/article/news_left?art_id=69096&cat_id=46667

[17] Ibid

[18] Government Day in the Verkhovna Rada, 14 March 2006

http://portal.rada.gov.ua/control/uk/publish/article/news_left?art_id=69096&cat_id=46667  

[19] http://moz.gov.ua/

[20] http://www.ukrstat.gov.ua/

[21]  The UN Economic and Social Council: Implementation of the International Covenant on Economic, Social and Cultural Rights, Fifth Periodic Reports presented by State parties under Articles 16 and 17 of the Covenant. Ukraine.  

[22] The results of a sociological study: “Public opinion as an instrument for monitoring the observance of patients’ rights in Ukraine”, the Centre Socioconsulting, with the support of the International Renaissance Foundation

[23] Letter from the State Judicial Administration №14-3485/07 from 06.06.2007

[24] http://www.nir.com.ua

[25] Letter from the Ministry of Defence №321/4/3527 from 07.06.2007

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