XIII. Observance of human rights in the health sector
Year 2014 passed in the anticipation of reforms. Health system had also been waiting for reforms, but the year ended only with the announcements of changes and deterioration of the observance of the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.
The reason for the situation lies in the political arena in the first place: the part of the state of Ukraine de facto came under the jurisdiction of another state of the AR of Crimea, and in the area of ATO up to 4 million people were left without proper care on the part of the state.
Another important factor of the deterioration of the human rights observance situation in the health sector is the economic indicators of the state, which affected the price rise for medical goods and services. In the first place it concerns the rise of prices for medications and for different product groups, including local production or imports — by sample estimates from 1.6 to 3.2 times. One should also take into account the increase in utility prices and prices for other expenses of healthcare institutions (transportation, rent), which also lead to rising costs of medical services.
All these processes are taking place against the background of frozen incomes, especially in public sector. Rise in the US dollar from 8.00 to 20.00 hryvnias, to which the formation of prices in the medicine sector is also pegged, made it impossible to start scheduled treatment as well of those residents of Ukraine, who belong to conventional middle class. Income of the majority of pensioners and people receiving social assistance from the state does not allow them to buy vital medications.
The State of Ukraine not only exercises no control over the formation of prices for essential medications, despite the statements of some officials, but also stimulates the rising of prices for medicines. On April 1, 2014 came into force norm of the Law of Ukraine “On prevention of financial disaster and creation of conditions for economic growth in Ukraine”, which set the level of VAT on medicines in the amount of 7%. Press service of “Weekly Pharmacy” in its publication drew attention to the fact that the introduction of this tax would not affect the profitability of pharmaceutical business given that VAT was paid by the final consumer.
During 2014 havoc was made in the system of tendering procurement of medications that were supposed to provide treatment at public expense in hospitals. As of October 1, 2014 medications to the value only of 88 million hryvnias were purchased after countrywide national programs.
Only at the beginning of November 2014 the situation began to improve: “As of today tender procedures to the value of 1 billion 415 million hryvnias have been accepted. In the procurement procedure there are 722 million hryvnias out of 2 billion 160 million hryvnias, which are provisioned for these purposes in the State Budget. At the same time, biddings to the value of 37 million hryvnias are currently blocked at the Anti-Monopoly Committee. This is due to a large number of complaints — 42, while in 2012 there were 4 such complaints, in 2013 — no complaints. Biddings are blocked on purpose”, — said Minister of Health at interim V.Lazoryshynets.
As is known, onset of disease and need for its treatment do not depend on time that is on the moment when officials can finally hold tenders. What will happen to those people who were sick before November 2014? Hence ambivalent feelings are created by the report in the Government portal website: “Currently, drugs have already been sent to the field. Only during this week medicines worth 158.8 million hryvnias have been delivered to the regions. These medicines are for children with chronic viral hepatitis, immunobiological medicines and medicines for antiretroviral therapy”.
Monitoring of the rights of vulnerable groups of the population, conducted by public and human rights organizations, has established the following systemic problems that occurred in 2014:
1. Violation of the rights of clients of the substitution maintenance therapy (hereinafter — SMT) in the Autonomous Republic of Crimea and in the ATO area.
2. Violation of the rights of people living with AIDS in the ATO area.
3. Violation of the rights of palliative care patients, including rights of seriously ill children.
4. The emergence of new vulnerable groups:
a) People who temporarily left their permanent residence;
b) Victims of the combat activities in the ATO area.
1. National Strategy in the Field of Human Rights
Building of new health care system should be based on the universal principles of human rights observance which are recognized in the international instruments ratified by Ukraine, that is why the President of Ukraine on October 15, 2014 adopted the decree No. 811/2014 “On the Development of a National Strategy in the Field of Human Rights” aimed at improvement of legal and institutional framework, the creation of an effective mechanism for comprehensive ensuring of rights and freedoms of man and citizen in Ukraine.
According to the instruction of the Prime Minister, on November 24, 2014 on the order of the Ministry of Justice No. 245/7 there was formed a Working Group on the Draft of the National Strategy in the Field of Human Rights, consisting of representatives of all interested government authorities, civil society, international organizations, the Secretariat of the Ukrainian Parliament Commissioner for Human Rights.
On November 24, 2014 the first extended meeting of the Working Group took place, during which the draft of the Strategy was discussed and there were formed thematic subgroups for the preparation of the relevant sections of the Strategy:
— Civil liberties and political rights.
— Social and economic rights.
— Other rights.
— New challenges.
— Mechanisms of the observance, restoration and implementation of human rights in Ukraine.
Expert Group on Medical Reform of the Advisory Board of the Ukrainian Parliament Commissioner for Human Rights (hereinafter — the Expert Group) also participated in the development of the National Strategy, in particular the section “Ensuring the right to health protection.”
The Expert Group, considering it necessary to implement the regulations of the International Covenant on Economic, Social and Cultural Rights, namely the right of everyone to the highest attainable standard of physical and mental health (art. 12), offered the following version of the National Strategy section on human rights:
“13. Ensuring the right to health protection
By public health Ukraine ranks one of the last in the European region.
The strategic goal
Implementation of the right to the highest attainable standard of physical and mental health.
1. Measures have been taken to prevent the violation of the right to life due to lack of medical services in the healthcare system, with account of economic development of the state.
2. Ensuring the right of resistance to torture, inhuman and degrading treatment or punishment, caused by violation of access to certain types of medical services, including palliative care.
3. Guaranteed access to hospitals, medical goods and services that meet the worked out standards and clinical protocols for vulnerable social groups.
4. Development of healthcare system took place on the ground of principles of bioethics (informed consent, confidentiality) and with account of the needs of minorities, communities, vulnerable groups.
5. Establishment of the quality control system of medical services, medicines and medical goods based on the achievements of evidence-based medicine.”
The offered edition allows solving a number of issues:
1. For the first time in Ukraine’s legislation the concept of “the highest attainable standard of physical and mental health” will be used, as it is stated by the International Covenant on Economic, Social and Cultural Rights.
2. The right to life and the right to protection from torture will be considered as rights which are also ensured by the healthcare system of the state.
3. Establishment of canons of law for implementation of the principles of quality and acceptability of health services in terms of ethics, taking into consideration the needs of individuals, minorities and communities, vulnerable social groups.
2. Reforming of the Healthcare System
In late 2014 the Strategic Advisory Group on Healthcare Reforms in Ukraine (hereinafter — SAG) published the draft of National Strategy for Building of the New Healthcare System in Ukraine for the Period of 2015–2025. According to the head of the secretariat of SAG O. Stefanyshyna, organizational chart of SAG activities is based on the performance of 4 main objectives.
Objective 1: Analytical review of existing materials with the purpose of accumulation of information for strategy development and detailed reform plan:
— Public policy in the healthcare sector, according to the sector blocks, including recent documents from the pilot regions;
— National healthcare data based on the official reports and independent assessments and surveys;
— Review and assessment of relevant initiatives on public health and reinforcement of the healthcare system;
— Analysis and evaluation of current national and local epidemiological, economic, political and legal factors in the healthcare sector.
Objective 2. Development of accurate guidelines for the building of a new healthcare system, including the patterns of provision of services and legal and regulatory framework:
— Ensuring provision of healthcare and public health services, available to the entire population;
— Ensuring the highest possible quality of medical help to the population;
— Ensuring provision of healthcare services based on need and absence of refusals to provide healthcare services due to financial inability of citizens;
— Introduction of the system of ensuring of the effective use of resources for addressing the medical needs of the population;
— Development of effective criteria for making decisions about future investments and restructuring;
— Development of a mechanism for sustainable funding and management of healthcare sector.
Objective 3. Preparation of specific components of the National Strategy for Building of the New Healthcare System in Ukraine: leadership/management; financing; provision of services; human resources; medical products; vaccines and technologies; information.
Objective 4. Development of proposals of “roadmap” for the implementation of the National Strategy for Building of the New Healthcare System, with the description of mechanisms, tools and time frame for the specified purposes; period of implementation and budget; results and criteria for monitoring; responsible parties.
The objectives of healthcare reform of Ukraine can be grouped into four action points:
— Encouragement of personal responsibility of the citizens for their own health.
— Ensuring of free choice of service providers.
— Creating a business friendly environment in the healthcare market.
— Providing targeted assistance to the most disadvantaged segments of the population.
Given that the objectives of the human rights community, from our point of view, could be:
1. Monitoring of the observance by the state of the principle of non-recourse, i. e. preventing deterioration of the national healthcare system condition.
2. The current analysis of the compliance of announced reforms with the principles of international law and active legislation of Ukraine.
3. Monitoring of a principle of transparency of decision-making about sector reforms.
In our opinion, the most important is the first stage of the action plan, as on the feasibility of its execution depends the success of the reform in general. Among the first steps of reform the following ones can be specified:
1. Constitutionality of reform. Article 49 of the Constitution of Ukraine should be amended. Without these amendments any reform would be fictitious and limited to cosmetic changes and “optimization”.
2. Public trust and popularity of reform. The concept of providing emergency benefits to low-income and chronically ill and guaranteed level of free medical care should be developed.
3. Expanding funding sources of the sector. A consistent mechanism designed to attract donor support must be created, as well as a mechanism for taking urgent, coordinated actions at the national level involving all available resources.
4. Optimization of public spending on the sector. National Agency for Healthcare Financing should be founded, which would be responsible for the purchase of medical services, and perform a supervisory function for procurement of pharmaceuticals in the country.
5. Improving legal and regulatory framework. For example, MoH decree No. 11 of January 21, 2010 “On Approval of the Procedure for Circulation of Narcotic Drugs, Psychotropic Substances and Precursors in Healthcare Institutions of Ukraine” should be repealed as one that does not meet the resolution of the Cabinet of Ministers of Ukraine of May 13, 2013 “On Approval of the Procedure of Acquisition, Transportation, Storage, Leave, Use and Destruction of Narcotic Drugs, Psychotropic Substances and Precursors in Healthcare Institutions.”
Separately, the question of restructuring of the ambulance arises, that can only be resolved with the introduction of changes to the overall healthcare system. In our opinion, it is extremely important priority task with regard to the following factors:
— In the near future the increase of budgetary financing for the healthcare system is not expected.
— Additional sources of the sector financing, which include charitable foundations, insurance companies, donor support, direct (illegal) payments from patients for medical services — partly cover sector financing shortage, including adjusting to real living wage real incomes of medical workers, partly restore diagnostic and therapeutic equipment, but do not contribute to the restoration of key assets, and most importantly — do not ensure guaranteed equal access to quality modern standardized medical services to greater part of the population.
— Emergency medicine serves as a “social doctor” — provides medical care to all segments of society without regard to property or social status.
— Emergency medicine provides medical care in the most difficult moments for the people: road traffic accidents, fires, natural disasters.
— Emergency medicine in 2014 began to serve as the link of evacuation in military medicine.
Given the above factors the level of financing and provision of emergency medicine should be reviewed and the limited financial resources should be directed to the development of rapid, emergency medical care and disaster medicine.
3. Start of reforms
On December 24, 2014 at the Ministry of Health of Ukraine a working meeting took place at which the action plan of implementation of the Action Program of the Cabinet of Ministers of Ukraine and the Coalition Agreement in 2015 was discussed. In particular, experts discussed the mechanism for speedy transfer of the part of the state procurement of medicines and vaccines to international organizations. For this purpose amendments to the Law of Ukraine “On Public Procurement” and the Budget Code of Ukraine were worked out and prepared for the consideration of the Cabinet of Ministers of Ukraine and the Parliament of Ukraine. According to V.Lazoryshynets obligatory approval requires the MoH order for the implementation of the resolution of the Cabinet of Ministers of Ukraine of July 4, 2012 No. 603 “On Peculiarities of Execution of Framework Agreements” in order to provide a mechanism for the procurement of vaccines and medicines through international organizations directly from manufacturers. Agreements between the Ministry of Health of Ukraine and the World Health Organization, United Nations Children’s Fund “UNICEF” will be amended in the part of implementation of cooperation for the procurement of medications and medical devices. Making direct long-term contracts with the manufacturers of medications is planned in order to to ensure future continuity of the treatment process after government programs.
1. To implement to the National Strategy for Human Rights and national legislation the provisions of the International Covenant on Economic, Social and Cultural Rights.
2. To begin the implementation of medical reform with amendments to the art. 49 of the Constitution of Ukraine. To cancel the provision of the free medical care and the prohibition of reducing the existing network of medical institutions. To define in the Constitution the right of everyone to the highest attainable standard of physical and mental health as it is interpreted by the UN Committee on Economic, Social and Cultural Rights.
3. To develop a concept of providing the emergency benefits for medications to low-income and chronically ill. To introduce state regulation of prices for medicines, taking into account the experience of the Pilot Project for Introduction of State Regulation of Prices for Medicines for Treatment of People with Hypertension (the resolution of the Cabinet of Ministers of Ukraine of 25.04.2012 No. 340).
4. To optimize public procurement and release it from corruption risks. To accomplish this requires:
a) Parliament to adopt amendments to the Law of Ukraine “On Public Procurement” and the Budget Code of Ukraine with the purpose of implementing the transfer mechanism of procurement of medicines and vaccines to international organizations.
b) To issue MoH order for the implementation of the resolution of the Cabinet of Ministers of Ukraine of July 4, 2012 No. 603 “On Peculiarities of Execution of Framework Agreements” in order to provide a mechanism for the procurement of vaccines and medicines through international organizations directly from manufacturers.
5. To extend the improvement of the legal and regulatory framework, particularly:
— To repeal the resolution of the Cabinet of Ministers of Ukraine No. 776 of September 18, 2013 “On Approval of the Concept of Development of System of Financial Provision in the Healthcare Sector.”
— To repeal the decree No. 33 of February 23, 2000 “On Staff Standards and Typical Staffs of the Healthcare Institutions.”
— To repeal the MoH decree No. 11 of January 21, 2010 “On Approval of the Procedure for Circulation of Narcotic Drugs, Psychotropic Substances and Precursors in Healthcare Institutions of Ukraine.”
6. Among priority measures to make provision for the development of the system of emergency medical care and disaster medicine.
7. To review the expediency of state compulsory social health insurance as a primary stage of healthcare reform.
8. To conduct an independent audit of the Ministry of Health with the assistance of international organizations.
 Section prepared by A. Rohansky, NGO “Institute for Legal Research and Strategies”.
 November 10, 2014.
 Violations of the rights of the latter two groups at the time of the section drafting are being monitored.
 In the first place, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Rights of Persons with Disabilities, the Convention on the Rights of the Child, the Convention for the Protection of Human Rights and Fundamental Freedoms, the European Social Charter (revised). National legislation which ensures human rights in healthcare sector, is primarily based on the Constitution of Ukraine, Laws of Ukraine, including the leading role played by the Law of Ukraine “Fundamentals of Legislation of Ukraine on Healthcare”, resolutions of the Cabinet of Ministers of Ukraine, departmental regulatory legal acts. For details see: Human Rights in Healthcare Sector: Practical Guide/Under the scientific editorship of I. Senyuta. — Lviv: Publishing house LOBF “Medicine and Law”, 2012.
 International Covenant on Economic, Social and Cultural Rights (ICESCR). Resolution 2200A [XXI] UN General Assembly, December 16, 1966 — http://www2. ohchr.org/english/law/cescr.htm.
 A joint initiative of civil society, the Government of Ukraine and the International Fund “Renaissance” (MoH decree No. 522 of 07.24.2014) on providing consultative assistance to the Government on sector reform strategies, optimal utilization of foreign aid, efforts of donors
 Committee on Economic, Social and Cultural Rights, General Comment 14, The right to the highest attainable standard of health (Twenty-second session, 2000), U.N. Doc. E/C.12/2000/4 (2000), reprinted in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.6 at 85 (2003).