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19. RIGHT TO HEALTHCARE (SOME ASPECTS)

   

About healthcare reform[1]

 Introduction

   According to the State Statistics Service, the natural decrease in population in Ukraine in 2012 made 124,996 people[2].

  During  two years (2011 - 2012) perinatal centers[3] were opened in Kirovohrad, Donetsk, Kharkiv, Dnipropetrovsk, Donetsk, Kyiv, Simferopol, and Poltava; however, the number of children, who died in the perinatal period[4], not only decreased, but tended to go up––4769 (4704 in 2011).

   In 2012, the number of infants (children under 1 year), who died of cancer, almost doubled (42 in 2012, 26 in 2011).

   Mortality from cancer of the adult population also tended upwards: 204 dead per 100 thousand of population in 2011 (194.9 in 2011).

   Mortality from HIV-related diseases remained at the same level: 12.1 deaths per 100 thousand of population (total of 5042 Ukrainians).

   The modern medicine is a knowledge-intensive and resource-intensive branch. However, only attraction of real financial resources can overcome the above selected examples of failure of the health care system.

   In the consolidated State Budget of Ukraine for 2012 the health expenditures made UAH55.2 billion, 12.9% more than the reported figure in 2011. But, given the increase in prices of medicines, goods and services that all residents of Ukraine felt in 2012, the 12.9% increase in expenditures is almost incomplete compensation for keeping the branch afloat.

   The Communications Department of the Ministry of Finance denies reports of “cuts” in health care expenditures for 2013[5]:

   "As to the underfunding of health care, it's no secret that this issue has not come up today, but it was a pressing problem for the previous governments.

   These are long-standing problems of the healthcare branch, which cannot be solved in one stroke, since they need restructuring of the entire system of health care and finding new (not just budget) sources of funding.

   In this regard, last year we started to implement the program of economic reforms for 2010-2014 "Prosperous Society, Competitive Economy, Effective State" in 4 regions with a pilot project intended to reform the health care system.

   In particular, the pilot regions will permit to test new approaches to the organization of health care and methods of funding to distribute the health budget by type of care that will improve health care and expand the availability and quality of medical care.

   The reforms of health care in the pilot regions and adopting these practices to other regions will regulate and optimize the network of health facilities, which will provide ground for the introduction of compulsory health insurance and thus attract additional sources of funding in the branch.”

   As always, on paper, on the sites of the Ministry of Public Health, and regional health administrations the reform looks bright, modern, but its practical implementation is beside the mark, as we know from eyewitnesses of reforms: pensioners, young mothers, doctors, farmers, youth, and the disabled.

   Also, in the first place, the human rights organizations are greatly concerned over helpless people, mentally ill, detainees held by law enforcers or convicted in criminal cases, HIV-positive people and more.

   The right to health is a basic inalienable right of every human being. The implementation of this right is an integral part of the right to life. This section of the “Report of human rights organizations” is dedicated to the violations of the rights to health by the ridiculous healthcare reform and includes recommendations of the human rights organizations on restoration of rights.

   

"The state of medicine is a face of power"[6]

(About healthcare reform in Ukraine)

      1. In Donetsk, the majority of persons interviewed by RFE heard nothing either about the reform of health or of family doctors[7].

     Commentary by a reader: I know nothing about Donetsk, but in Donetsk Oblast people know a lot about the reform. For example, in the city of Zhdanovka, 5 km from Yenakiyevo, earlier there was one hospital, and everything was well-trodden. Now there are two hospitals: the older one and the new hospital of family medicine. Now, say, if you want to make an appointment to see a surgeon, you have to see a family doctor in the first place, who, if necessary, refers you to a surgeon in the old hospital. And it is so with all medical specialists. You can’t go to the old hospital, without seeing the family doctor first.

      Commentary by a reader: Most have not heard? You’d better ask the personnel of dental clinics and their patients. They have been improved and stabilized for a year now. Due to reforms they were turned out from the premises usually located in urban centers. In Donetsk they happened to temporarily defend themselves, although the city rada there tried to raid the dental clinic with the help of SSU (search, etc.). Actually the wanted to take away the premises near the "Donetsk City", and to drive the dentists as far as to Putilovka into a dilapidated building.

      This is the oldest dental clinic Donetsk with more than fifty-year history. Twenty-seven years ago, being communal clinic, it was first to become a self-supporting enterprise. Doctors were able to survive in the most difficult years of the first decade of the "independence" and now they annually treat about 40,000 patients. Among patients there are many pensioners and disabled people who receive discounts and preferential service[8].  

Point on the map: the Kostiantynivsky area, in which medical reform failed to make roots[9]

     Some villagers of Kostiantynivsky Region of Donetsk Oblast demand to revise the innovations in local healthcare system. They maintain that because of closing down of the round-the-clock hospital in the former Yekaterinovsky local hospital which was turned into an out-patient clinic, the villagers were deprived of the rights to timely medical care.

   "What have entered the head of the officials? Let them come here and see for themselves how the hospital can be destroyed in six months after having survived since the 50s of the last century. Only last year they finished the top overhaul,” says one of Yekaterinovka's old residents.

   Yekaterinovka's inhabitants:

   "Do you want to know, how many people died only in our village for the last six months?  The woman died:  labile blood pressure and high blood glucose level. Earlier, after all, as an in-patient you could get on a drip, and now what? She’s got no relatives.  Who will drive her to Kostiantynivka?  The only city hospital does not admit peasants. Therefore she died after the next attack.”

   "The guy, 45, beaten black and blue. No free beds at the hospital.  So, he left back home and, on the way home, died,” another villager adds.

   People boil over the fact that because of introduction of medical reform now there is nobody to treat rural children. It appears that per 10 out-patient clinics and 23 medical assistants and obstetric stations, which are a part of Kostiantynivsky center of primary medical and sanitary aid, there is only one pediatrician seeing children at the regional center.

   “There's nothing for it,” and the physicians make a helpless gesture, “you can get from them no more than one rate for the children's doctor” (the total of the population of Kostiantynivsky Region makes 22 thousand people).

     2. The collapse of the pediatric service.

   The Volyn Oblast is not included into the program of "medical experiments". But, as Fedir Koshel, Head of City Rada Health Department, says the healthcare reform in Lutsk began several years ago. The oblast has common problems: Lutsk mothers do not want their babies to be examined by a family "doctor," who had worked his way through the six-month advanced training courses and retrained for a new profession. This is evidenced by statistics: the center of primary health care at the first Lutsk clinic renders medical service to 50,759 adults and 342 children only.

   The reform in its literal sense requires significant financial investments, first of all, into modern medical equipment. If the doctors continue working with the existing resource base, there is no sense in starting the reform[10].

   "Why break effective medical mechanism today?" asked the doctor with 20 years of experience. "They want to retrain us all and make family doctors. This is nonsense. To become a family doctor one must study from 8 to 10 years, rather than six months of casual retraining. After all, the organisms of an adult and a child are different, as well as the treatment. Especially it concerns children under one year old. I am afraid that these reforms will only destroy the pediatric service. Family medicine will begin working when our colleges will train appropriate professionals. I'm not talking about the diagnostic equipment that is currently used in our clinics, and access to it. You should start with buying the equipment, going about personnel training, and then proceed with working out statutes and changing sign plates.”

    "The penalty for failure to appear”

   According to the newspaper Segodnia[11] the notices about the need to register in clinics “in accordance with the Law of Ukraine “On the reform of the health system” appeared on almost every house. Doctors, like politicians during electioneering, go stumping and inviting Kyivites to book an appointment with them and promising to grant sick leaves without health inspection and advice even at night time. Physicians’ position is understandable: they will be paid extra money for each patient.

   The notices surprise people; they reckon that unregistered residents will be fined. "I called the clinic. And I was told that it is a must. In fact, we will be fined for failure to appear,” said the Kyivite from the Ernst Street.

   Doctors say that they are not ready to perform the functions assigned to them as part of a pilot project of health system reform[12].

   The health officials agree that "the family medicine in Ukraine is far from ideal," but argue that "the work of established family medicine centers is getting right, conditions for general practitioners are improving, and equipment is being purchased.”

   However, most family doctors still do not share this optimism.

   “Unreadiness of material and technical basis and unpreparedness of doctors for their a round of duties simply discredits the very idea. People have to see family doctors, but family doctors are not ready to carry out routine functions,” says family doctor Ruslan Dobrovolsky.

   Moreover, the current clinics and outpatient departments of family medicine treat patients of different age groups under the old scheme.

   "We’re lucky our doctor is a former pediatrician and she knows how to handle a child. But I am outraged by the situation that the children are sitting with adults in the same lines and contact with ill people. Therefore I do my best to avoid going to the hospital and only on the phone tell them what to jot down in the medical record,” says Alina, a young mother who entrusts her baby to the family doctor.

   Another failed attempt to implement medical insurance from January 1, 2013.

   As stated in the purpose of health reform, the reorganization and optimization of the network of medical institutions, distribution of medical care at different levels and other measures are carried out to further compulsory health insurance, which in turn will dramatically improve the financial "climate" of the branch.

   To promote legislative support for reforms, another bill "On compulsory state health insurance” was proposed to the Verkhovna Rada of Ukraine on August 13, 2012.

   The purpose of the bill was to introduce as of January 1, 2013 the mandatory state social insurance based on the three-level system of health insurance. According to the bill, the nature of these levels was as follows:

   * Level 1: joint system of compulsory health insurance based on the principles of solidarity and subsidies and payment of insurance benefits at the expense of the Medical Insurance Fund;

   * Level 2: cumulative system of compulsory health insurance based on the principles of accumulation of means of insured persons by the Cumulative insurance fund;

   * Level 3: system of private health insurance based on the principles of voluntary participation of citizens.

   The first and second levels of the health insurance system belong to compulsory health insurance. The second and third levels of insurance system belong to cumulative health insurance.

   The bill specified that citizens of Ukraine may participate and receive insurance payments from different levels of the health insurance system. Also, the bill defined principles and mechanisms of the system of compulsory health insurance, its object and subject, their rights and obligations, persons subject to compulsory health insurance, mechanism of calculation and payment of insurance fees.

   The suggested contractual regulation of mandatory health insurance was as follows:

   - The contract (policy) of health insurance concluded in favor of the insured person between the Medical Insurance Fund and / or the accumulative insurance funds and insurers;

   - The contract for rendering medical services to be concluded between the Medical Insurance Fund and / or the accumulative insurance funds and health care providers; it includes a list of medical services, their cost, scope, methods and frequency of treatment, quality criteria, standards of care, preventive measures, responsibility, etc.;

   - Cooperation agreement entered into by the health care providers at various levels includes a list of medical services provided by involving relevant professionals or sending patients for necessary treatment to other health care providers.

   But it should be noted that, according to the Central Scientific Expertise Department[13], the proposed changes in the bill, especially concerning the abolition of the laws of Ukraine "On compulsory state social insurance against temporary disability benefits and expenses related to the birth and burial" and "On compulsory social state workmen's compensation insurance and against occupational diseases that caused disability” and others may destroy current system of compulsory social insurance specified by the legislation of Ukraine on compulsory state social insurance and basic laws on social insurance.

   In general, the analysis of the content of the bill indicates that it does not provide for achieving the goals and objectives declared in the letter of explanation and its implementation will not help to solve the main problems of the functioning and development of the health system in Ukraine related to ensuring of the constitutional rights citizens of Ukraine to free medical care, creation of "conditions for effective and accessible to all citizens health care" (Article 49 of the Constitution of Ukraine).

      Dnipropetrovsk: as a result of medical reform the pediatrics is practically destroyed.

   Tetiana Okhotnyk, public activist, mother of two preschool children, told the edition Dnepropetrovsk.  Kommentarii[14] : “In the spring mothers faced the situation when they came to policlinics and didn't know where to go further.  For example, on Vorontsov three districts of pediatricians transferred to adult policlinic, to an unadapted wing.”

   “Children's policlinic on Yuvileyny was closed, the premises were adapted for a notary office, partially closed in Novomoskovsk. Actually all children's policlinics ceased to exist as such,” generalizes Tetiana on information on "excesses" of medical reform which parents share among themselves at city forums.

   The main problem, as it appeared, was that in the newly-created out-patient clinics in one turn to the doctor or for doing medical tests there stood adults, children, babies, pregnant women, sick and healthy; also there was only a small number of family doctors of due qualification. Besides, the policlinics of the Soviet construction aren't adapted to provide separation of flows of patients.

   According to activists of the independent parental movement "For Our Children", who found each other in the Internet, this reform was half-baked. The doctor's consulting room for children is next to the psychotherapist’s room, on Sofia Kovalevska the same is near the room of the dermatovenerologist. In Novomoskovsk medical tests are done near the fluorography room. Mothers in Novomoskovsk were more than once witnesses of delivery for medical examination of prisoners at the time of reception of ordinary patients. One more example from Novomoskovsk: mother came to the domiciliary out-patient clinic to make the cardiogram to the child. However, the "adult" doctors refused to perform the procedure as they had not been trained to decipher the "children's" cardiogram.

   Thus, the transformations are carried out quickly and without preliminary preparation of doctors, offices, and patients.

   For example, in the Pobeda residential district the children's policlinic on Kosmichna St. served 15-20 thousand children. In one week, according to the decision of the oblast health department, this policlinic was reformed, and six pediatricians were transferred to 22, Geroyiv St., where 3 out-patient clinics were created.

   "As a result, the endless lines to the reception, high-gained tickets, two-hour lines to do blood tests. To get to the ENT, the mother with her child has to come to Geroyiv, spend the time standing in line for pediatrician, get the referral, go to Kosmichna, receive a ticket and see the doctor. To make the detailed test of blood, it is necessary to go to Fuchik St. via 22, Geroyiv St. While earlier everything was in one building, doctors of all levels, out-patient clinics, massage, and exercise therapy,” complain parents.

   Parents are outraged by the methods of carrying out reforms: “They open a new children's perinatal center where they can spend hundreds thousands hryvnias for rescue of one child, and, on the other hand, they destroy pediatrics. It’s irrational.  In one week they ruined the system, which took them dozens of years to be built.”

  Iryna Derevyanko, public activist, said: “Why to open the perinatal center, bear children, save their lives, if already in a month this child will go to an out-patient clinic and be put at risk of infection with all adult diseases?” Many mothers complain that during an appointment the doctor, say, diagnoses “bronchitis”; however, after continuous clothing and undressing, transition or moving to other buildings, lines to do tests, and lines to see the narrowly focused specialist the child will already be diagnosed pneumonia.”

   Tetiana Okhotnyk added that “we kept struggling for two months to bring back the day of the healthy child, which had always been on Tuesdays.  The patient would be stopped at the reception for sure.  And now it is impossible: the therapist never stops his/her appointments.  And for the most part his patients include sick adults.”

   Parents believe that, certainly, reforming of medicine is necessary. However, the transformations should be carried out depending on the needs of this or that district or city. So, in their general opinion, in large districts in the city it is more expedient to keep children's policlinics and it is more expedient to apply the principle of the organization of medical aid in out-patient clinics in the remote areas.

   12 clinics are to disappear in Dnipropetrovsk[15]

   This decision was adopted at a session of Dnipropetrovsk Oblast Rada on 21.12.2012. The ruling majority vote ignored both outraged patients under the walls and warnings of opposition in the hall. The government says: innovations are needed for efficient use of budget money, some medical institutions will be merged, medical personnel will not be sacked. Meanwhile, the opponents of the decision warned: like all medical reforms in the oblast, it was not publicly debated.

   Such decisions should not be allowed to be adopted without public hearings or public debate. There are merging hospitals situated on different banks of the Dnipro linked with a bridge. The seventh hospital is merged with the emergency hospital. Who suggested such nonsense? Where is the logic? I understand that someone wants to get his/her opponent under. Why do they liquidate our doctors? The whole country is laughing at our medical experiments, and people cry for their children and elderly people are dying,” opined Victoria Shylova, the Deputy.

   “I ask to stop ruining clinical hospitals in Dnipropetrovsk. And the second point: the supervisory boards of hospitals still do not know about their reorganization. What about our local self-government then?” adds Deputy Kateryna Vidiakina.

   On December 21, 2012, in the morning, about two dozen patients of the 7th hospital came to the walls of Dnipropetrovsk Oblast Rada despite ringing 15-degree frost. Protesters came spontaneously, without slogans and resolutions. It turned out that on the square, near the Christmas tree, all meetings are banned, and militia enclosed the area and asked the protesters away.

   Hryhoriy, patient of many years at the seventh hospital was outraged: the institution had a good cardiology department, and now he could not undergo elective heart treatment there. "It's not something like sore stomach, when you can make do with a pill. This is your heart. If it stops, it's as good as lost,” the man told the RFE.

   The government does not take into account the opinion of the representatives of NGOs, independent trade unions and deputies[16].

   Victoria Shylova, the Deputy of Dnipropetrovsk Oblast Rada, called the health reform a "plague”. Ms. Shylova noted that 95% of oblast residents opposed the reform in this format, which not only failed to bring medicine closer to people, but, quite the contrary, it increased the distance to the nearest clinic up to 80-100 km.” Only local officials do not notice this.

   Chairman of the NGO of disabled workers, victims, families of workers killed at work in Dnipropetrovsk Oblast “Myr” Serhiy Shubnykov commented: "During 15 years, the health standards are constantly revised. If earlier I could be treated at the hospital for a month, then later this term gradually decreased. Now, if in 7 days a patient does not recover, the qualification of the physician is prejudiced. But there are situations when it is simply impossible to make a recovery in such a short time, e.g. in the case of infarction.”

   The NGO "Myr" promoted the formation of the initiative group “Against healthcare reform” in the Dnipropetrovsk Oblast. Its activists are currently trying to reach the power to close down the pilot medical reform. The dialogue with the authorities follows a well-beaten track: correspondence in vague terms. Despairing of success, people resorted to peaceful assembly to initiate a local referendum among the population.

   However, after the application about the rally in Dnipropetrovsk on April 27was filed, the Administrative Court officers called Serhiy Shubnykov. They told that the City Rada of Dnipropetrovsk filed a counterclaim, and the court ordered the banning of peaceful action.

   On the eve of the peaceful assembly in Dnipropetrovsk the representatives of the Free Trade Union of Medical Workers of Ukraine, initiative group “Against healthcare reform" and of "Myr" organization came to tell about their problems to Kyiv. They convince that they were forced to come, because they may not deliver information at the regional level. “All channels of communication in Dnipropetrovsk Oblast are blocked. We cannot speak on any channel, so we give a press conference in Kyiv for the authorities to hear us,” says Victoria Shylova.

   "This health reform project is not for people but for officials,” says Serhiy Shubnykov.

   No one disputes the need to reform the existing health care system, but few expected just such a result.

   In some cases, they carry it to the point of absurdity. As Victoria Shylova told, with funds earmarked for reform they purchased tomographic scanner worth UAH8 million, which is standing idle for six months now until they purchase the software (costs about the same). Its servicing costs about UAH 5 million annually, which the budget of the local hospital, of course, cannot afford. Therefore, patients have to pay a charitable contribution to the tune of UAH380 to UAH1500.

   The pilot oblast is against such an experiment on human beings. So, the guests from Dnipropetrovsk ask, if it is feasible to give the go-ahead to such healthcare reform.

   The ambulance will no longer aid you

   Soon the centers of emergency medical care will emerge in Ukraine consisting of emergency units and unified dispatching department equipped with GPS. But most doctors reasonably believe that the reform will be a profanation.

   Maxym Ionov, doctor at Kyiv emergency station, Chairman of the Free Trade Union of Emergency Doctors[17]:

   In summer of 2012 the Verkhovna Rada of Ukraine hastily pushed forward the half-baked Law "On emergency medical care", which entered into force on January 1, 2013. This means that now the can issue orders and regulations in its sole discretion bypassing legal procedures and expert analysis on the part of other government agencies.

   Moreover, on 21.11.2012, the Cabinet of Ministers of Ukraine adopted a resolution that clearly defined the work of Emergency medical care (the name EMC in accordance with the law since 01.01.2013). Namely: it strictly regulated the on call arrival time of EMC teams (10 minutes in urban and 20 minutes in rural areas); differentiation of urgent and not urgent calls and introduction of temporary EMC bases. These measures are intended to create Centers of emergency medical care and disaster medicine with departments of emergency medical care, as well as a unified dispatching with GPS plus temporary emergency bases.

   What happens in practice?

   Maxym Ionov: Over time people may forget about the quality of medical care, and here's why. Today, the main purpose of officials is arrival time and subsequent emergency hospitalization plus austerity plan. Already "tomorrow" they wil determine the main parameter criterion "to bring the patient alive/dead", and "the day after tomorrow" the question of quality of medical care will disappear by itself.

   From 1 January 2013 the house call may be carried out not by a doctor, but a medical assistant, and in a few years by some paramedic. The emergency team will have no medical preparations, no equipment, no assistant (only a driver) and nobody with medical experience! For me, as a doctor, there is a difference between hospitalization of the patient with acute coronary syndrome (myocardial infarction) undergoing intensive therapy with defibrillator (assistant’s level) or admit him after pre-hospital thrombolysis, as our experts in cardiac resuscitation  do.

   Why, taking up the question of EMC brigade’s arrival in 10 minutes, nobody brings up a question of horrific road conditions, extremely worn medical vehicles, traffic congestion, rudeness on the part of drivers of other vehicles, unreadable house number and street names, or their absence, passages and driveways and approach roads to receptions? And the list may go on.

   GPS-navigators. Many employees and citizens were delighted with the expectations of GPS-navigation. With great relief they came to know that now it would be easier and faster to find the correct address. But no such luck! The GPS-navigators were installed not to facilitate the search for an address, but for control and monitoring of the emergency team on dispatcher’s monitor in order to know where the team is located and what it is doing. Although, truth be told, everybody knew this info. The team went on reading a map unable to find a proper driveway to answer the call. However, the total control over fuel and lubricants was established, and the administration was not interested in long traffic jams, because the monitor did not show these jams.

   Extra bases for EMC teams.

   The similar experiment in Kharkiv showed complete disorganization of these innovations. Virtually they created 30 such bases, but EMC teams were sent just be on call near clinics or medical institutions, in some cases just on the street, with no minimum ability to satisfy their physiological needs (eating, hygiene needs, etc.). All this led to protests and criticism from both the population and the medical personnel who found themselves in terrible conditions.

   Qualified personnel. The last decade was one of the main problems of the ambulance service. Today throughout Ukraine there is a continuous outflow of skilled personnel. The reasons are simple: poor working conditions and miserable wages, young professionals are not motivated, experienced doctors and nurses go over to institutions with more relaxed and better paid working conditions in the private sector.

   Maxym Ionov: We are in the midst of restructuring of the health care system, which, according to officials, involves optimization of medical institutions, while in reality it means their closure, sale or complete ruin. The same is about the ambulance service. Officials undertake to "reorganize" it without even miserable investments, and it means that the old system will be ruined and the new one will not be created. You cannot build a house without money, without buying building materials. But our ministerial officials deem it possible.

   "Reformed" pediatric service in Vinnytsia

   Olga, Vinnytsia resident, says: "This is about health reform. My son is 10 years old and as many years we go to children's clinic, we often come here. However, current conditions are a real trial. Yesterday we went to see the oculist, the endless line at the door to the office, turned around and went home. I decided to return early in the morning. Reception twice a week from 9.00 am to 03.00 pm! Before the reform the reception was on a daily basis! We came before 9.00, but there were so many people as if they stayed overnight there… Maybe 30 people waited in a line. And I hoped to be with my child among the first! We lined up and were admitted to the doctor’s room on the fourth hour of the day. Six hours in the line! Six! All are tired of waiting. This happened for the first time in 10 years. Well, maximum waiting time was half an hour. Well, an hour, sometimes ... But not six hours, it's almost a workday! Terrible! The doctor was tired as well and I understand it. Without lunch and breaks. It gives a pain in the neck. Children are hungry. Nobody expected that we would wait so long.[18]

   Vinnitsa association "Parents against healthcare reform" gathered nearly 30,000 signatures of Vinnytsia residents against such model of health reform, which is currently being tested in Vinnytsia Oblast.

   Villagers to the President: exclude our settlement from pilot health reform

   Voronovytsy urban type community, Vinnytsia Oblast, 20 kilometers from the oblast center, gathered together to pass a decision and appeal to the Oblast State Administration and the President of Ukraine requesting to exclude their settlement from pilot medical reform. This action was caused by government’s attempts to close a large regional hospital, which served about twenty thousand inhabitants of Voronovytsy and nearby villages[19].

   “They now call it “optimization,” says Viktor Stetskiv, head of the Voronovytska Settlement Rada. “Indeed, it is closing. There is a gradual reduction of personnel and beds. Already from 80 to 50. And what does the number of beds mean? It means medical staff that serves them, and public funding. And as a result, many patients cannot get proper treatment. Officially we serve 14,000 people from nearby villages and unofficially about 20 thousand. Many residents of neighboring villages of Tyvrovsky Region are unable to get to their local hospital: there are no regular buses and they go to our hospital. And we do not deny reception. Moreover, historically the hospital was built jointly by neighboring collective farms. But here arises the problem of "the emergency aid". Tell me, who should visit the patient, who is not registered in our hospital? Then … there appeared family doctors. The sick man calls in a doctor, but how he can reach the neighboring villages? The "ER" is an independent service. And they want to include it into the disaster medicine. But I do not see the logic: there were no disasters here from time immemorial.”   

   Intermediate results of health reform in 2012:

   1. There was no coordination of legal basis of the pilot project of reforming the medical branch with the provisions of the Constitution of Ukraine, Budget Code of Ukraine, Economic Code of Ukraine, Civil Code of Ukraine, Code of Laws of Ukraine on Labor, and Law of Ukraine "On payment for labor”[20].

   2. The process of unconstitutional reducing existing network of medical institutions and the establishment of payment for services in the health sector went on.

   3. The Law of Ukraine "On emergency medical aid" does not take into account the essential features of the emergency medical care. The existing infrastructure in the administrative-territorial units is ignored: the state of roads and the state of public transport.

   4. The primary care centers in the pilot regions, especially not within the oblast center, in rural areas provide no opportunities for patients to reach them, including the elderly and patients with disabled locomotive system.

   5. By the end of 2012 the primary care centers in the pilot regions were understaffed with medical personnel with appropriate qualification and left without facilities for diagnosis and treatment of the most common diseases, injuries, poisoning, pathological, physiological (pregnancy) states.

   6. Non-transparency of the reform. 10.24 2012 the CMU approved the resolution no. 1113 "On approval of the creation of hospital districts in Vinnytsia, Dnipropetrovsk, Donetsk oblasts and Kyiv." Paragraph 12 of the Procedure of public consultations on the formulation and implementation of public policy (approved by the resolution of the Cabinet of Ministers of Ukraine no. 996 from 03.10.2012) specifies that the draft resolution of the CMU needs mandatory public discussion. The paragraph 8 of the note of explanation to the aforementioned draft resolution of the Cabinet of Ministers ordered the Ministry of Public Health of Ukraine to upload the text to its site for discussion. However, this document was never uploaded to the site of the Ministry of Public Health of Ukraine[21].   

   The negative consequences of the implementation of health reform go on coming out:

   * The out-of-practice doctors and professionals are lost for the branch.

   * Collapsing pediatric service.

   * Population linking health reform to the deterioration of health care, especially for vulnerable groups.

      Recommendations

   1. Bring the provisions of the Law of Ukraine no. 3612 of 07.07.2011 "On the procedure for health care reform in Vinnytsia, Dnipropetrovsk, Donetsk oblasts and Kyiv" and the Law of Ukraine no. 3611 of 07.07.2011 "On Amendments to the Basic laws of Ukraine on healthcare intended to improve the medical care" in compliance with the Constitution of Ukraine, Budget Code of Ukraine, Economic Code of Ukraine, Civil Code of Ukraine, Code of Laws of Ukraine on Labor, and Law of Ukraine "On payment for labor”[22].

   2. Prevent reduction of network hospitals and introduction of paid medical services in accordance with the current Constitution of Ukraine

   3. Strengthen monitoring by law enforcement agencies of the mechanisms of "reorganization" of medical institutions and compliance with applicable laws on economic and labor law.

   4. Strengthen control of NGOs of the implementation of health reform.

   5. Increase the "transparency" of decision-making on all issues of implementation of health reform, including the conduct of public hearings, regulations, adoption of which requires the use of this mechanism for implementation.

   6. Disseminate information on the measures and steps of implementation of health reform in advance of the actual administrative actions.

   7. Develop centers of primary health care based on a complete set of specially trained professionals with appropriate qualifications in light of international experience (10-year training).

   8. Amend Art. 49 of the Constitution of Ukraine on elimination of provisions for free treatment to guarantee a certain list of free medical services (minimum basic level guaranteed by the government).

   9. Having amended Art. 49 of the Constitution of Ukraine to identify sources of health funding: state budget and fund of compulsory medical insurance.

   10. Suggest Ombudsman of Ukraine to take personal control of health care reform in order to prevent violations of basic inalienable human rights to life and health.

 

Law of Ukraine "On Psychiatric Care" in the context of human rights

Law of Ukraine "On Psychiatric Care" was adopted on 22.02.2000, and ever since has complicated life of both mentally ill and their families. It is no exaggeration to opine that this law barred psychiatric assistance in the form in which it existed in the Russian Empire and the USSR. Many believe this is a positive step, because in Soviet times there was a repressive psychiatry, and many dissidents were victims of it. But in Soviet times alongside the repressive psychiatry, there existed traditional effective and efficient psychiatric care.

All mentally ill received the necessary aid quickly and efficiently. And, although the hospital environment in Soviet times was rather modest, patients were not hungry and had necessary drugs free of charge.

Now all this is up in the air. Food in psychiatric hospitals is extremely bad and free medical preparations are prescribed not on the basis of their efficacy, but because of their cheapness. However, it was hit the hardest not by the lack of money, but by the above law. Article 11 of the Law specifies the informed consent of the patient for medical examination: “The psychiatric examination is conducted by the psychiatrist at the request or with the informed consent of the person.” That is, if a person is competent, neither relatives nor, especially, third parties can organize psychiatric examination without patient’s consent. But we all know that one of the symptoms of endogenous illness––schizophrenia, bipolar disorder, etc.––includes the absence of critical evaluation of one’s condition. Thus, the schizophrenic would never agree to be examined by a psychiatrist because s/he feels healthy, and any attempt to treat the condition s/he ascribes to hostile forces. The only thing now for the relatives of the patient at the signs of illness is to wait and see, or what? Call a psychiatrist? Can do. But under the law the psychiatrist visiting the patient should introduce himself, tell that he is a psychiatrist and ask if the patient wants to be examined. Of course, most patients refuse to be examined, and the psychiatrist goes away empty-handed. But the patient remains ill. And sometimes, quite often, s/he poses a hazard to herself / himself and to her / his people.

The untimely treatment may lead to suicide and have serious consequences for the patient's family. There is a lot of examples, because the KhPG assists relatives of such patients. Here's one such example:

One woman addressed a complaint to the KhPG: her daughter is mentally ill and constantly beats her grandson and herself.

The woman called for emergency psychiatric aid, but her daughter flatly refused to be examined. She called the law, which can call an ambulance, but does it very reluctantly and rarely. In this case, the militia arrived to tell that it was nothing but domestic discord. The “domestic discord" ended in disaster: the sick woman beat her child which was taken to the hospital with a concussion. Then the KhPG appealed to the board of guardians and office of a public prosecutor. The board of guardians deprived her of parental rights, and the grandmother became the guardian of the under-age grandson. But nobody concerned himself with the sick woman and no one treated her. Neither the law enforcers, nor the office of a public prosecutor turned to physicians, and, of course,  the patient herself did not want to be treated.

Another example concerns a situation which is in the process of being solved.

The patient V. had mental disorders from little up, repeatedly underwent treatment at a psychiatric ward for adolescents, was registered in an out-patient psychiatric facility, but had no established diagnosis of "schizophrenia". His illness was diagnosed as abnormal personality, and he was found unfit for military service. At the age of 28, he suddenly began to consider himself a girl, and began dressing in ladies' wear and taking female hormones estrogens. His parents failed to realize at once that it was a manifestation of mental illness, but when they learned that he also had raised credits and had not refunded money, bought three cars, and generally had made a lot of funny things, they understood that this was a manifestation of the disease, which he had had still in his youth. Assuming that V. was a threat to himself, the parents called an acute psychiatric aid. The ambulance brought V. to a psychiatric hospital, but he refused to be examined by the psychiatrists, and he was released from sanitary inspection room. The parents went to court, but the court refused their request and did not schedule a psychiatric examination. Now the parents do not know what is happening to their son: he broke kinship. They know only that the bank, where he raised credits and did not refund money, brought an action before the court to seize his property. And in this case, the court worked quickly giving permission for the arrest of the V.’s property. Once again the parents of the sick man, with new documents this time, went to the law to appoint a psychiatric examination of V. But nobody knows what will come out of it.

According to psychiatrists, the courts and the militia very unwillingly give permission for compulsory treatment and examination leaving patients without any medical assistance.

In one case, the neighbors helped to manage the situation with aggressive insane. The sick man N. had been diagnosed as schizophrenic, but was not deprived of legal capacity. He was not treated and the disease aggravated. N. became aggressive, beat his children and wife. Every day his neighbors heard screams and fights. However, the law did not bother to intervene on the grounds that it was a family affair. Then the neighbors knocked at the door during a fight, and, when N.  began threatening them, called the law. The N.’s psychosis state was evident, and militia called a psychiatric emergency aid. N. has been hospitalized and is undergoing treatment now. The KhPG staffers advised neighbors to do it. And fortunately, the neighbors were courageous and not indifferent.

The psychiatrists cannot work properly because of this law. They see that the person is ill and is dangerous to his relationship, but they have no legal leverage to treat him. Only due to the fact that our state-paid workers are timid and usually do not resort to public actions we do not have protests by psychiatrists who really worry about this law and related situation. The KhPG applied to Minister of Health Ms. Bohatyriova with request to revise the law, but we've received no reply until now.

The sick people, not only their relatives, are constantly turning to us. They often complain of some fictional problems. But we see that they should be treated. However, our appeals to psychiatric clinics are in vain, because the patients do not give "conscious" consent to medical examination and treatment, they do not realize that they need such assistance.

As to repressive psychiatry, the law does not protect against it. In independent Ukraine there still exists repressive psychiatry. We ran into it in the case of patient R.

He had a long-standing diagnosis of schizophrenia. But he rarely underwent treatment and kept off the out-patient psychiatric facility. Naturally, he did not receive necessary medical preparations. So, he was not under medical supervision, when the whole story occurred, with which the KhPG is concerned now. Therefore, it's not possible to diagnose the current stage of the disease.

According to official version of investigators and court, R. beat the girl so badly that she went to the hospital, where she underwent surgery. According to R.’ mother, the militia denied him of liberty unlawfully; they beat him black and blue before he was taken to neurosurgery with a concussion; but he could not beat the girl, because at that time he was elsewhere. We will not go into these details further, because we are interested in the medical part of this story. The investigators brought R. to undergo psychiatric examination, which confirmed the presence of a mental illness. On this basis, the court ruled to bring R. to a psychiatric hospital with strict supervision, which is located in Dnipropetrovsk, having recognized him as socially dangerous.

This would not have happened, if the Law of Ukraine "On Mental Health Services” had not left the fate of R. at his discretion, and he had received the timely treatment (if he really inflicted bodily blows, as the investigators concluded).

However, in the psychiatric hospital with strict supervision they started treating him with potent neuroleptic beyond drugs, which was certified by the Kharkiv Regional Psychiatric Hospital no. 3. During her visits, mother saw her son grown thin and in convulsions. The KhPG lawyers forwarded an inquiry addressed to the head doctor with a request to inform, what medications were used in the treatment of R., but got no answer and had to begin legal action against the hospital. The court ordered the head doctor to answer the KhPG lawyers. And only after that, they began treating R. with other medications. Thus, we see how an illness that was either not treated, or treated insufficiently can cause tragic consequences. But the law does not protect us against the repressive psychiatry.

Now the legal proceedings R. vs. Militia and vs. investigator are underway. The KhPG experts represent R. in court.

The relatives of another patient turned to us to help them hospitalize sick man A. This sick man A. turned to KhPG complaining that the SSU pursues him trying to kill. The former wife of A. filed an application that A suffers from mental disease. In 2007 he was treated in KhOPH no. 3. Now his condition has declined. The wife appealed to the head of the department where her ex-husband was treated. The doctor said that it was necessary to hospitalize him immediately. But A. does not want to hear about it, because he feels healthy. He constantly pursues his ex-wife and daughter, who had to leave Kharkiv; he tried to penetrate the apartment of elderly parents of his wife and broke the door. His wife called the militia, told them about the disease of A., asked them to help hospitalize him. But the militia conducted an interview with A. persuading him to behave in accordance with generally accepted norms and left; nevertheless the problem persists.

Now A. continues to haunt his wife and her parents. The appeal of KhPG to the out-patient psychiatric facility led to nothing. They explained that A. may be hospitalized after simultaneous calling an ambulance and militia, if the militia wants (!) to take part in it. So until now the problem is not resolved.

There is another unacceptable thing in the Law "On Psychiatric Aid". Part 2 of Art. 11 of this Law reads: The psychiatric examination is conducted by a psychiatrist at the request or with the informed consent of the person; of persons under 14 years of age (minors)––at the request or with the consent of a parent or other legal representative; of a person legally recognized incompetent ––at the request or with the consent of her/his guardian. In case of disagreement with one parent or absence of parents or other legal representative of a minor the psychiatric examination is conducted by decision (agreement) of the agency of guardianship, which may be appealed (Article 11 as amended by the Law no. 1033-V ( 1033-16) of 17.05.2007). That means that a mentally ill child may be examined only by the consent of both parents. But one of the parents may not realize that a child needs psychiatric examination. S/he may be just afraid of contacts with psychiatrists, which happens at every turn.

Several years ago a young woman separated from her husband appealed to the KhPG. Despite the fact that their 5-year-old son was mentally retarded, her husband, who very rarely saw his child, did not give consent for examination of the child by a psychiatrist. So, the boy grew up without proper medical supervision and, therefore, his condition deteriorated. Then the KhPG experts arranged for the doctor to examine the child.

But the law does its dirty work. And how many children are left without medical assistance?

In our opinion, it is necessary to form a working group of leading mental health professionals and develop a new redaction of the Law of Ukraine "On Psychiatric Aid".

Violation of the right to health care in penal system

What is to be done when a person is in custody, if her/his health is deteriorating by the day and the appropriate institution subordinate to the State Penal Service of Ukraine (SPSU) cannot provide the necessary medical care? If a person is convicted and the judgment against her/him has entered into force, the procedure of person's release for health reasons in accordance with Article 84 of the Criminal Code of Ukraine may be applied. Considering all the circumstances, the court endorses the release and the person can be treated in a civilian hospital.

But what is to be done with those sick people who are still accused (suspects)? In the case of the life-threatening disease the court cannot release them for health reasons.

As for altering the preventive measure of detention and resorting to alternatives not associated with imprisonment, even in such cases, when a person suffers from a failure to get medical aid and her/his life and health are in real danger, the courts are slow to protect human rights and adopt new and innovative solutions for detention in custody. It should be noted that in a pilot decision of the European Court of Justice (the Court), in the case Kharchenko vs. Ukraine, on 10.02.2011 the Court opined that the abuse of arrest in Ukraine is a systemic violation and Ukraine within six months should take certain measures to correct these deficiencies.

If at the national level they cannot achieve the transfer of a patient from the institution subordinated to the SPSU for treatment in a civil hospital and the person needs immediate medical attention, the lawyers appeal to the Court according to the Rule 39 of Regulations of the Court on taking urgent measures to protect the life and health of the person.

But it so happens that despite the judgment on the urgent measures that is compulsory for Ukraine the urgent measures are not taken.

This happened in the case of Professor Anatoly Temchenko, former rector of the Kryvy Rih University:

This happened in the case of Tamaz Kardava, in which the delay in providing treatment resulted in a tragic death.

Morbidity and mortality in penal institutions*

Indexes

1.1.2004

1.1.2008

1.1.2009

1.1.2010

1.1.2011

1.07.2011

1.1.2012

1.7.2012

Number of prisoners

191 677

149 690

145 946

147 716

154 027

157 866

154 029

152 076

Died

824

729

765

761

808

601

1 169

440

Per 1,000 prisoners

4.30

4.87

5.24

5.15

5.25

7.61

7.59

5.79

Number of suicides

41

54

40

44

44

28

59

32

Per 1,000 prisoners

0.21

0.36

0.27

0.30

0.29

0.355

0.383

0.42

Active TB infection patients

9 080

6 195

6079

5667

5486

5393

4 822

5 007

Per 1,000 prisoners

47.37

41.4

41.65

38.36

35.62

34.2

31.3

32.9

HIV positive

1 917

5 017

5073

6069

6020

6438

6 910

6 347

– 8.15%

Per 1,000 prisoners

10.0

33.5 / + 15%

34.8 /

+ 3.6%

41.1/ +18%

39.1

40.8

44.9

41.7

*Prison portal http://ukrprison.org.ua/statistics/1344593701

As seen from the table, in 2008 the number of HIV positive persons in penitentiary system of Ukraine constantly increased. During 2012, there was no fundamental change in the situation with the provision of antiretroviral therapy for HIV-positive convicted persons and prisoners.

So, at the beginning of 2012, the antiretroviral treatment was provided for 986 persons. According to the penal service, there were 1,100 persons on the list for antiretroviral treatment.

At the end of year, the number of prisoners on the list for antiretroviral treatment, who did not receive any drugs, began increasing. A number of factors contributes to this.

Firstly, the number of prisoners appointed for antiretroviral therapy and undergoing examination in multipurpose hospital units of SPSU increased.

Secondly, the stock of ARV preparations in colonies is usually far below the need. This happens because the SPSU usually undersupplies the hospitals in the colonies. For example, if the sanitation service orders 20 schemes, the SPSU supplies no more than 9-10. Therefore the prisoners, who have been brought to the hospital to undergo antiretroviral therapy, are denied medication by the management of sanitation service.

Another example. At the beginning of the year, only at the Chernihiv penal colony no. 44 20 people urgently needed ART therapy. The colony had no preparations to treat these prisoners. There was enough medical preparations only for those, who were already undergoing medical treatment. The stock of medical preparations was calculated approximately for three months. The similar situation occurred in other colonies. For example, at the end of the year in Kirovohrad PC no. 6 more than 10 HIV positive prisoners needed ARV drugs.

The NGO Soniachne Kolo from Odesa turned to the ACO "Network of organizations working in the penal system" on behalf of the ill prisoner in Kherson specialized hospital in the colony no. 7: “C. E., born in 1970, Kherson Oblast, Holoprystanska PC no.7, CD-44 cells / ml blood, viral load 3000000, TB of lymph nodes, undergoes TB treatment from September 2012. The sanitary service has no ARV drugs in store, the convict needs ARV therapy in the absence of proper preparations.” Lately the situation extremely deteriorated; the NGO Soniachne Kolo is located at a distance from Kherson AIDS center; in the meantime, the representatives of the NGO made arrangements for antiretroviral therapy for S.E. for one month. According to the latest tests, the patient’s CD-4 shows 40 cells / ml of blood.

According to the clinical protocol of antiretroviral therapy for HIV infection in adults and adolescents, “all HIV positive patients undergo screening for hepatitis C virus (hereinafter: HCV) by detection of antibodies to HCV (B-III). The positive result of the study should be confirmed by the presence of HCV RNA in the blood by PCR (A-II).” However, this requirement is not satisfied regularly. In late 2012, the situation somewhat improved due to SPSU’s receiving humanitarian aid.

In 2012, there were reports of interruption of taking of ARV drugs by prisoners, the antiretroviral therapy was discontinued. One of the reasons consisted in the earlier practice of ARV treatment in the penal system of Ukraine. Thus, HIV positive prisoners were supplied drugs not only by the SPSU, but also by the Centers for prevention and control of AIDS. However, if the convicted, who received antiretroviral drugs at the AIDS center, moved from one penal institution to another, s/he had difficulties with access to therapy. Most often this situation arose, when the sentenced was transferred to institutions located far from AIDS Centers, which complicated the timely supply of drugs.

This practice is in conflict with the Regulations adopted on September 5, 2012, which schedules the conduct of antiretroviral therapy. The regulation clearly defines entities responsible for the ARV treatment in prisons. The Centers for Prevention and Control of AIDS should provide drugs to all persons in need of treatment prior to the entry into force of the verdict. After the entry into force of the judgment the obligation to provide ARV treatment of prisoners is assigned to health care institutions of the penal service.

In addition, in 2012 there were problems with the provision of certain schemes of antiretroviral therapy for HIV positive prisoners. In June 2012, convicted Dmitry in interoblast hospital of SPSU the doctors in charge prescribed the ART scheme that included the Truvada medicine. The drug was given with a margin of three months. But in the colony, in which Dmitry was serving a sentence, this drug was not available. In order to avoid omission of drug administration to the convicted, they modified the scheme of ARV treatment. As a result, a new scheme of ARV therapy was now supplied by the regional center against AIDS.

In order to prescribe and start the antiretroviral treatment of sentenced Mykhailo M., he was transferred from correctional facility no. 97 to the interoblast hospital in correctional facility no. 124, where he was prescribed antiretroviral therapy. Having issued drugs, they immediately sent him back to the correctional facility no. 97 in violation of the clinical protocol of prescription of ART: “The main indicator for deciding on the start of ART is the number of CD4-lymphocytes. The decision on the prescription of ART should be based on the results of two separate tests of CD4-lymphocytes conducted at intervals of 14-28 days to exclude laboratory error and other causes of indicator deviation (e.g., intercurrent disease. “According to the convicted, while in Donetsk investigatory isolation ward, he declared a hunger strike because of intense side effects of ARV treatment. In his appeal he demanded that he be given the opportunity to undergo treatment in the interoblast hospital until the side effects of treatment alleviate.

In 2012, there remains an acute problem of undermanned staff of infection disease doctors in the colonies. Due to the lack of such specialists, often the HIV positive prisoners were limited in their access to services of infectious disease doctors.

The exceptions include the interoblast SPSU hospitals and institutions, where service is rendered by infectiologists of oblast (city) Centers for prevention and control of AIDS. However, more often the colonies that are located far from the Centers of prevention and control of AIDS are not able to implement the sick-call of HIV positive prisoners by the infectiologists. Moreover, the administration of the colony cannot open new jobs for medical professionals in staffing establishment of health units.

Both prisoners and prisoners in penal institutions often cannot undergo quality medical diagnostics. The SPSU is doing its best to upgrade medical equipment, but these measures and the intensity of the upgrade process are not enough.

In 2012, there were complaints of poor diagnosis of tuberculosis. Early in 2012 the convict Ivan K. underwent examination in multi-field hospital of SPSU at the Dnipropetrovsk investigatory isolation ward and was prescribed to undergo the antiretroviral treatment. Having received the prescription, he returned to the colony. Less than in a month later he died, because during examination in multi-field hospital of SPSU the doctors failed to diagnose the extrapulmonary tuberculosis. This diagnosis was made in TB hospital under Ministry of Health, where he was moved due to a sharp deterioration in health.

In addition, during 2012 there were complaints of prisoners of the absence of supply of medications. A limited stock of medications in the medical units of colonies forms the basis for corruption. For example, in 2012 convicted Mykola L. turned to the medical unit asking to extract a tooth. The dentist used local anesthetic lidocaine, which is a very weak painkiller sometimes used in the case of tooth extraction. At the same time, the dentist had Ultracain as well, which kills pain much better. However, for such a drug the dentist demanded "donation" to the tune of a pack of cigarettes. There were also complaints from prisoners about the absence of other medications: hepatoprotectors, fluconazole (medicine for opportunistic infections).

There happened a paradoxical situation: the ACO "Network of organizations working in the penitentiary field” was addressed to in the case of the problem with prevention of vertical transmission in HIV positive pregnant woman in the investigatory isolation ward. According to clinical protocol, she had to start taking drugs. But soon she was convicted and sent to Melitopol female colony for minors. The problem was that this institution was unadjusted to keep the sentenced mother with the child. The temporary solution was found in this case: the mother an her child stay at the investigatory isolation ward for the time being.

Recommendations:

1. To legally determine the grounds for selecting a preventive measure in criminal proceedings with due regard to the state of health of the subject of criminal prosecution.

2. Implement an effective mechanism for altering the preventive measure on the basis of the health status of the subject of criminal prosecution.

2. The SPSU shall work out a mechanism for predicting an adequate supply of medical preparations, particularly drugs for antiretroviral therapy in medical units of penal system taking into consideration the likely number of patients, including HIV positive ones.

3. The SPSU shall provide for continuity of antiretroviral therapy in connection with the transfer of convicts from one penitentiary institution to another.

4. The SPSU shall design a procedure for infection disease doctors to treat HIV positive convicts (manning table, planning extended counseling).

5. The SPSU shall work out special prison regulations for HIV positive mothers with a child in detention.

 

Judicial protection of the right to health[23]

Protection of patients' rights in cases against Ukraine: practice of the European Court of Human Rights in 2012

Judging by the European Court for 2012[24] and previous years, you can make a definite conclusion that patients' rights may be protected by reference to a violation of Article 8 of the Convention, if the process and results of failure and / or lack of care has not been such that may actually be recognized as torture and / or inhuman or degrading treatment. If the effects of failure or lack of medical care are more significant, one should refer to a violation of Article 3 of the Convention (or Article 2, if the case results in the death of a person) and ask the Court to recognize these actions as such that are qualified as torture and / or ill-treatment.

 It is significant to note that the decision by the European Court of Human Rights (hereinafter: the Court) under Articles 2, 3, 8, 14 of the Convention against Ukraine concerning violations of patients' rights in health care cases in 2012 were not accepted. This may mean both a lack of violations by the government of patients’ rights (which does not seem to be true) and lack of competence of applicants from Ukraine, the complaints of which are recognized as unacceptable, or they do not submit complaints data at all.

 Analyzing the Court's practice in 2012, it should be noted that the proportion of cases involving patients' rights is very low. This, in our opinion, is due to several aspects:

 1. The text of the European Convention on Human Rights does not contain a separate article that defines the human right to health.

 2. The time-varying legal position of the Court on qualification of the violation of patients' rights according to Article 2 (right to life), 3 (prohibition of torture), 8 (right to respect for private and family life), and 14 (prohibition of discrimination). In its decisions of previous years, the Court in various ways interpreted objectively similar situation with violations of patients' rights taking as a basis the consequences caused by actions or inactions of a doctor. If these actions led to the death of the patient, the Court could find a violation of Art. 2 of the Convention; in the case of affliction the Court could find a violation of Art. 3 of the Convention; in the case of misery the Court could find a violation of Art. 8 of the Convention; if the activity or inactivity of doctors, according to the Court, were aimed at discriminating of individuals based on gender, age, race, etc., the Court could find a violation of Art. 14 of the Convention.

 3. The difficulty and complexity of these cases, the reluctance of the Court to analyze precisely the objective side of the activity of doctors and provide a juridical appraisal. Instead, the Court is ready to address issues concerning the availability of a thorough investigation in the criminal process on damnification of a patient through actions or inactions of a doctor in a particular state.

 However, analyzing the decisions against Ukraine made by the Court in 2012, we can notice certain trends.

 Thus, in the case Todorov vs. Ukraine (application no. 16717/05, judgment of 12.01.2012) the Court drew attention to the permanent absence of guarantees by Ukrainian authorities of the rights of patients in prison.

 Before his arrest the applicant was diagnosed with immature cataracts in both eyes and atopic dermatitis. After admission to the investigatory isolation ward the applicant was examined by medical personnel of the investigatory isolation ward and placed under observation by a specialized clinic because of aggravated immature cataract in both eyes, diffuse eczema, and chronic gastritis. During his stay in the investigatory isolation ward the applicant's medical condition only worsened. He needed an urgent operation on his eyes, lest he completely lost his sight. In this case, the applicant had a number of skin diseases that impeded its implementation. The Court noted that, although the applicant refused an operation on his eyes, his refusal was associated with doctor's recommendation, which indicated the need for priority treatment of skin diseases of the applicant, as this largely determined the success of the operation on the eyes. The Court considered that such refusal was not unreasonable. The Court pointed out that the national authorities recognized the impossibility of rendering the applicant necessary medical care in the investigatory isolation ward and twice petitioned the applicant's release for this reason, but both requests were rejected by the national courts, as a result of which the applicant received no timely necessary medical assistance. The Court concluded that the domestic authorities failed to take all necessary measures to prevent the loss of sight by the applicant. On September 9, 2005 the doctors diagnosed the complete loss of vision by the applicant, and in this connection he was granted the first disability group. In fact, this was the fault of state agents that did not provided necessary medical aid to the person in need of it.

 In connection with these results, the Court noted that failure to provide adequate medical assistance to those who are kept in the penal system is a structural problem in Ukraine.

 A similar failure to grant the rights of the patient, leading to serious consequences, was observed in the Kaverzin vs. Ukraine (application no. 23893/03, judgment of 15.05.2012). According to the applicant, his disability was the result of lack of proper and particularly timely treatment. According to him, his eyesight damage was not properly diagnosed in January 2001, which led to the inability to obtain necessary treatment. The applicant claimed that as soon as doctors discovered the damage, he should have been taken to the hospital and examined by a doctor, who specialized in ocular diseases. The Court also gave special importance to the fact that the damage to the eye of the applicant was not considered by the authorities within six months from the time it was discovered in January 2001. The government has not provided any explanation for the delay in granting the applicant the necessary medical aid. Within the framework of the resolution the Court held that there was a violation of Article 3 of the Convention because of the lack of proper medical assistance to the applicant in connection with damage to his eye in the period from January to September 2001.

 Unfortunately, the Court tried no purely medical cases against Ukraine in 2012, but the legal position of the Court on the assessment in terms of the provisions of the Convention illustrates the case G.B. and R.B. vs. the Republic of Moldova (application no. 16761/09, judgment of 18.12.2012).

 The applicants were born in 1968 and 1966 respectively and reside in Ştefan Vodă. They are husband and wife. On May 4, 2000 the first applicant had to deliver a baby. The Head of the Department of Obstetrics and Gynecology of the District Hospital of Ştefan Vodă, Mr. B. performed a cesarean section. During the procedure, he removed her ovaries and Fallopian tubes without her consent. As a result of this operation, the first applicant, who was thirty-two at the time, was suffering from early menopause.

 In 2001 the first applicant had to receive medical treatment intended to counter the effects of early menopause, including in the form of hormone replacement therapy. According to her doctors, she should continue this treatment until she reaches the age of 52-55, after which further treatment would not be needed.

 According to neurologist, since November 5, 2001 the first applicant was suffering from asthenic-depressive syndrome and osteoporosis. On February 18, 2002 doctors discovered that the first applicant had hot flashes, neuroses, and frequent palpitations. On May 8, 2002 the asthenic neurosis was diagnosed. As a result of the examination conducted by the medical team on March 18, 2003, the removal of the ovaries and Fallopian tubes of the first applicant was unnecessary, and the operation led to her sterilization.

On July 26, 2006 the psychiatrist and psychologist found that the first applicant was suffering from long-term psychological problems and that she continued to show signs of post-traumatic stress disorder.

On March 15, 2005 the district court of Căuşeni found B. guilty of medical negligence, which caused serious damage to health and bodily integrity of the victim. He was sentenced to six months in prison; the sentence was suspended for one year. The Court relied on medical reports and found, in particular, that B. could not inform the applicants of sterilization within ten days after the event. The ovaries of the first applicant could be saved, but B. failed to do it.

On May 11, 2005 the Court of Appeal upheld that decision. On August 2, 2005 the Supreme Court overruled the judgments of lower courts and made its own judgment recognizing B. guilty, but freed him from criminal liability, because the limitation period for his conviction had expired.

 It is important that the Court corroborated the legal assessment of such violations, which is confirmed by the following.

 As the Court has pointed out in previous cases, the notion of "private life" is a broad term that cannot be exhaustively defined. It covers, in particular, the physical and psychological state of the person (see X and Y vs. the Netherlands, March 26, 1985, § 22, Series A, no. 91, Pretti vs. the United Kingdom, no. 2346/02, § 61, ECHR 2002-III ). In particular, a medical intervention, which is contrary to the patient's desire, is qualified as an interference with his or her rights under Article 8 of the Convention (see Glass …, § 70).

 In this case, the domestic courts found infringement of the rights of the first applicant. Although the courts have not directly addressed to Article 8 of the Convention, they found that there was a serious interference with the physical and mental integrity of the first applicant without her knowledge or consent.

 The devastating impact on the first applicant of the lost ability to reproduce, and the subsequent long-term health problems makes it a particularly serious interference with her rights under Article 8 of the Convention, which requires a fair compensation.

 In the light of the foregoing, the Court finds that the first applicant had not lost the status of the victim, and that there has been a violation of Article 8.

 Therefore, the Court is prepared to consider medical errors at least in the context of a breach of Article 8 and prescribe compensation for material and moral damages by the state.

 Analysis of of the practice of national courts for 2012 concerning the protection of patients' rights

 Analyzing the practice of national courts on the basis of data included into the Unified State Register of judgments (hereinafter: the Register), we can also make some generalizations about the major trends of the domestic jurisprudence in 2012.

 1. A small number of cases of criminal prosecution of persons, who commit crimes aimed at violating the rights of patients.

 Thus, in the Register we have found for the period under investigation only four sentences for which the persons were held liable for the crime under Art. 140 of the Criminal Code of Ukraine (improper performance of professional duties of medical or pharmaceutical worker). Interestingly, 3 of 4 sentences are in fact acquitting judgements, which is generally very rare for domestic litigation.

 What is decisive, in all four cases, the consequences arising from the improper performance of duties by a medical officer was the death of patients.

 So, in case no. 1-25 12, for which the sentence was imposed by Vyshgorod District Court of Kyiv Oblast, the story line included the circumstances as follows.

On 11.02.11, Person_4, as the head of department, therapist of the therapy department for socially-disadvantaged persons of Kyiv City Clinical Hospital no. 1, without the approval of the deputy chief doctor of the medical unit, ordered a company car "Toyota", registration no._1, and ordered to prepare for transporting patients Person_7, Person_8, Person_11, Person_6 and Person_10 and gave verbal instructions to subordinate employees Person_12 and Person_13 to help the latter intending to carry these persons outside of Kyiv and leave them there to free the therapy department for socially-disadvantaged persons of Kyiv City Clinical Hospital no. 1 for patients. Once Person_7, Person_8, Person_11, Person_6 and Person_10 at approximately 15 hours boarded the car, Person_4 gave the driver of the above car Person_14 verbal instructions to take him along with these patients to Vyshhorod, where Person_4 at the public transport stop located at Person_15 Street left patients Person_7, Person_8, Person_11, Person_6, and Person_10, though Person_4 realized that the cast-offs would not be able to protect themselves and survive, as temperature outdoors ranged from 0 to +1 degrees C, the patients were left without money, the patient Person_7 was was an invalid having no toes on the left foot, patient Person_9 had pathological dysfunction of the lower extremities in the form of paraplegia of the low extremities with high reflexes, presence of abnormal neurological symptoms and muscle contracture, patient Person_6 had toxic encephalopathy with convulsive syndrome and dysfunction of tendons, patient Person_8 had peg leg at the middle third, patient Person_10 was unavailable for productive voice communication and had dysfunction of the left limbs. On 11.02.11, about 18 hours, Person_7, Person_8, Person_11, Person_6, and Person_10 were delivered by the ambulance to the accident and emergency department of Vyshhorod Central Regional Hospital, where the condition of the latter was diagnosed as "general hypothermia."

On February 11, 2011, about 22 hours 10 minutes, Person_7 died in Vyshhorod CRH due to ischemic heart disease. The fact that it was a result of the impact of low temperatures did not find its confirmation in court.

 According to the results of the trial, Person_4 was found guilty of crimes committed under Part 1 of article 135 of the Criminal Code of Ukraine and received a penalty of 1 year imprisonment.

 Under Art. 365 Part 3, Art.140 Part 1 of the Criminal Code of Ukraine Person_4 was justified.

 In the case no. 0110/1844/2012 the person adjudged guilty for causing injuries that led to the death of the victim was found guilty of a crime under Art. 140 of the Criminal Code of Ukraine, but immediately released from liability in connection with the lapse of time.

 The story line of the case is is as follows: Person_2 working as a surgeon at the surgical department of the Territorial Medical Association of Sudak City Rada, on 25.10.2003, about 20-00 hours, was on night duty and without the approval from the head of the surgical department alone decided to perform puncture of soft tissues of the upper third of the left shoulder and conduct subsequent surgery of patient Person_3, which was treated with a diagnosis of "posttraumatic hematoma of the left shoulder with damage to the neurovascular bundle, syndrome of crushing of the soft tissues of the left shoulder"; as a result of these actions the victim suffered injury of left axillary artery, which led to external bleeding resulting at about 00-55 hours INFO_2 in death of Person_3.

 Almost similar are circumstances of case no. 1-398/11, by the sentence in which the defendant was found guilty of the indictment under Part 1 of Art. 140 of the Criminal Code of Ukraine and acquitted.

 The only case that ended with the verdict was the case no. 2320/1119/12, in which the verdict convicted the person who, while performing her duties improperly, caused death of the patient.

 According to the data established by the court, the guilty person from 09-15 till 14-00 hrs improperly performed his professional duties as a result of negligent treatment of them, which had serious consequences for the patient. So, from 12-15 h., when patient Person_6 was transferred to the intensive therapy unit of anesthesiology and intensive care department of public institution "Cherkasy Oblast Oncologic Dispensary", where she remained under the supervision of a physician-anesthesiologist Person_5, who during intensive care and during resuscitation, having everything to carefully supervise vital functions in the postoperative period until their recovery and stabilization, due to improper performance of his professional duties, negligent, careless attitude towards them, which resulted in a bad, indifferent, undiligent, inattentive, careless, negligent their performance, allowed the introduction by a person unidentified during investigation, materials relating to which were allocated in a separate proceeding, into the body of Person_6 of medication Lidocaine, injection of which was not foreseen at this stage of treatment, that led to serious consequences for the patient in the form of death of Person_6 that was confirmed at 14-00 hrs INFO_3, which, according to the conclusion of the forensic test no. 579 from 12.10.2011 carried out by the appointed commission, died from poisoning with Lidocaine against the background of severe intoxication caused by a generalized form of stomach cancer, while, according to the conclusion of additional forensic examination no. 10-k of 07.02.2012 carried out by the appointed commission, the most likely input of Lidocaine into body of Person_6 was an injection; however Lidocaine was introduced into the body of Person_6 during the period of time counted by minutes, dozens of minutes before death.

 Now we can on the basis of this quick analysis conclude that the national law enforcement practice still goes the way of indulging the low level of legal and moral responsibility of physicians.

 2. Positive decisions of the courts sustaining the claims for compensation for material and moral damages only for serious reasons and / or criminal prosecution if the person is guilty of violating the rights of a patient.

 So, in case no. 1305/2-129/10, the decision on which was adopted on August 27, 2012 by the panel of judges of the chamber of civil cases of the Appeal Court of Lviv Oblast in the argument of the legal position of court special attention is paid to the fact that the person found guilty of causing personal damage to life and health of the plaintiff was prosecuted.

 According to the story line of the case, on July 20, 2007, during the delivery maternity patient Person_3 in Horodok Central District Hospital (hereinafter: CDH) occurred intrauterine fetal asphyxia leading to serious consequences––death.

The materials of the criminal case showed that fetal death was caused by the fact that Person_6, who worked as head of obstetrics and gynecology department of Horodok CDH, during plaintiff’s childbirth improperly discharged his professional duties due to unfair attitude towards them.

 The resolution of Horodok District Court of Lviv Oblast on June 16, 2009 found Person_6 guilty of committing an offense under Part 1 Art.140 of the Criminal Code of Ukraine (the failure or improper performance of medical or pharmaceutical professional duties as a result of neglect or unfair treatment of them, if this resulted in serious consequences for the patient), but released from criminal liability in the manner and under the conditions specified by paragraphs "g" and "d" of Articles 1, 6 of the Law of Ukraine "On Amnesty" on December 12, 2008, and closed the criminal proceedings.

 The appeals court made a decision, which was a rarity in domestic practice: the decision of Horodok District Court of Lviv Oblast from November 16, 2010 had to be changed increasing the amount of monetary compensation for moral (non-property) damage to be recovered from Horodok Central Hospital of Lviv Oblast in favor of the Person_3 from UAH30 000 yo UAH 80 000 (eighty thousand).

 We believe that the main reason for such procedural resolution, according to the text of the decision, was the proof with the help of criminal proceedings of the doctor’s guilt of improper performance by a medical or pharmaceutical worker of his professional duties as a result of neglect or unfair treatment of them, which caused grave consequences for the patient, in this case, the death of a child.

 3. Unpreparedness of courts to satisfy claims against hospitals and doctors responsible for causing damage to life and / or health of patients.

 According to the Register, in 2012 27 decisions were made in the framework of civil proceedings of the so-called "docnjrs’ cases."

 Thus in 18 of 27 cases analyzed appeals were dismissed in full, in 9 cases the courts ruled on partial or full satisfaction of the claim.

 This trend is typical for previous years as well. Despite the increase in the number of decisions made on the merits of "docnjrs’ cases", the courts still follow the same trend as in previous years: they dismiss appeals for compensation for material and / or moral damage in whole or in part.

  4. The ungrounded position of forensic experts on the evaluation of actions and / or inaction of doctors and consequences of their actions and causal relationship among them is rather frequent

 Thus, the testimony presented by the forensic expert in the case no. 1-25 12 was included into the verdict as an established fact that there had been no causal connection between leaving of several patients by the doctor on the street at low temperature and the death of one of them the next day.

 Questioned in court the forensic Person_22 explained that the death of Person_7 occurred from chronic ischemic heart disease with the development of cardiac decompensation. The findings of histological examination indicate the signs of influence of low temperature on the body of Person_7. At the same time he pointed out that on the body of Person_7 there were signs of frostbite, which were had formed long before death, as evidenced by the necrosis of feet. He could not tell how the stay at a low temperature in the open air for several hours before death influenced the death of Person_7. He explained the Court that the effect of low temperature showed as a point hemorrhages on the mucosa of renal pelvises, kind of macroscopic abnormalities. The hypothermia was not the cause of death of Person_7; the cause of death was the coronary heart disease. The effect of low temperature is a probabilistic supposition.

 As far as there was no other evidence of the relationship between the impact of low temperatures and the onset of death of Person_7, the court did not establish a causal link between the actions of the doctor and the patient's death and, as a consequence, the defendant was aquitted under Art. 140 of the Criminal Code of Ukraine.

 In civil proceedings there is a similar situation: in case no. 2-5428/11 about damages caused by the damage to health, according to the conclusions of the commission investigating the quality of health care rendered to the patient Person_1 from 14.12.2009 contained in the file (p. 61-62), the occurrence of such postoperative complications in the plaintiff as osteomyelitis can be explained by a liability to disease due to: anatomical and physiological features of the structure of the lower extremities, namely the lack of a sufficient number of muscles, muscle atrophy, and increased content of subcutaneous adipose fiber.

 That is the forensic experts most frequently are taking the side of their fellow doctors not confirming a causal relationship between the actions or inaction of doctors and such consequences as damage to health of the patients.

 Recommendations:

 1. Lawyers: study in more details the practice of the European Court of Human Rights in order to understand the logic and precedent-related practice of the Court concerning the "docnjrs’ cases."

 2. To rivet the attention of the lawyers to the fact that the patients' rights in the European Court of Human Rights can be protected by reference to a violation of Article 8 of the Convention, if the process and results of inaction and / or lack of proper care have not been such as to be recognized as torture and / or inhuman or degrading treatment. When the effects of inaction or lack of proper medical care are more serious, one should refer to a violation of Article 3 of the Convention and to ask the Court to recognize these actions as torture and / or cruel treatment, or Art. 2, if they resulted in death.

 3. Make a collection of samples of claims in "doctors’ cases" in the framework of civil proceedings in the national process with reference to the provisions of the Convention.

 4. To rivet the attention of the lawyers to correct wording of claims in national proceedings, indicating not only the material and moral damage as a claim, but also require recognizing the actions or inactions of medical workers illegal.

 5. Participants of criminal and civil proceedings should more widely resort to alternative assessment as additional arguments in support of the claim.

 6. Courts during adjudication should account for the degree of effects that were caused as a result of actions or inactions of the defendants, analyze the findings of forensic and expert testimony in judicial proceedings within the context of their objectivity and validity of the findings and relevant factual circumstances.

 7. The state expert institutions should make the disciplinary responsibility system more effective in the case of the low level of expertise, incomplete examination of all circumstances and materials, etc.

 

[1] Prepared by Andriy Rakhansky, Institute of Legal Research and Strategies.

[2]  http://www.ukrstat.gov.ua/

[3] National Project: "New Life - New quality of maternal and child health care."

[4] January-November 2012.

[5]  http://www.minfin.gov.ua/control/uk/publish/article?art_id=353252&cat_id=326268

[6] Head of Vinnytsia Regional State Administration Mykola Dzhygha.

[7] # relatedInfoContainer

[8] http://pauluskp.livejournal.com/196852.html

[9] After the publication of "062 Donetsk" http://062.ua/

[10] http://vidomosti-ua.com/news/48748

[11] #

[12] http://www.radiosvoboda.org/content/article/24705089.html

[13] Conclusion of the Main Scientific and Expertise Department from 26.09.2012, http://w1.c1.rada.gov.ua/pls/zweb2/webproc4_1?pf3511=44150

[14] http://dnepr.comments.ua/news/2012/06/01/112313.html

[15] RL. http://www.radiosvoboda.org/content/article/24805620.html

[16] "Health reform: regular improvement or ticket to the kingdom come?» http://life.pravda.com.ua/health/2012/05/3/101606/

[17] Read more about about the problem of first aid on "Maidan» http://maidanua.org/

[18] http://zotov-news.blogspot.com/

[19] http://amm.net.ua/pid-vazhkim-chobotom-medichnoyi-reformi.html

[20] Read more in: "Human Rights in Health Care - 2011» http://library.khpg.org/index.php?id=1340911384

[21] # more

[22] "Human Rights in Health Care - 2011» http://library.khpg.org/index.php?id=1340911384

[23] Prepared by Natalia Ohotnikova, KHPG expert on medicine cases

[24] Read more: http :/ / hr-lawyers.org

 

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