CONCLUSION

The above research of the theoretical problems of legal regulation of labour of the medical employees, as well as of the laws governing the labour law status of medical employees and other normative regulations and practice has allowed the author to make a number of independent conclusions and formulated certain concrete suggestions as to how to improve legal regulation of the medical labour.

1. Medical employees, being subjects of labour law, do possess both the general and the branch-wise legal personality. Nevertheless, in order to avoid duplication in the terminology used to characterise legal personality of medical employees it appears appropriate to recognize that, as employees, they are granted

with the universal, rather than general labour law personality, while as subjects of specific professional activity, they are granted with special labour law personality.

2. Based on the constitutional principles of differentiation of legal regulation, it is possible to conclude that medical employees do possess the special labour law status, understood as a set of labour rights, duties and liabilities taking effect in the course of emergence, maintenance, modification, suspension and termination of labour law relations with medical institutions, that are based on the law and inherent only to medical employees. The special labour law status of a medical employee is to be divided into two components: the general (uniform) one and the specialized (differentiated) one. The general (uniform) component of the medical employee\'s labour law status is a set of common, identical for all medical employees\' rights, duties and liabilities. The specialized (differentiated) component of the labour law status of medical employees is a scope of special rights, duties and liabilities that correspond to a certain position, specialty and qualification of a concrete medical employee.

3. The principal criteria to distinguish the special labour law status of medical employees possessing from that of other persons involved in medical practice are as follows: they received proper education (special higher education, postgraduate training or either midlevel medical education) and they entered into a labour relationship with an employer, which is either a medical institution or any other institution licensed to exercise medical practice. At the same time, an individual can be considered as a medical employee with the special labour law status only when he (1) received special higher education and postgraduate training or either midlevel medical education (2) has a certificate of a specialist (before 1 January 2026) or an accreditation certificate (after that date), (3) holds and official position in a medical institution in accordance with his labour contract and corresponding to his specialty related to the medical practice.

4. In its static aspect the labour law status is to be understood as formal legal stipulation of the elements of the status in the norms of labour law, while the dynamic aspect it should be considered as its specific content defined by the provisions of labour law as applied to various “life stages” of a labour relationship or, in the other words, as a complex of its elements in the process of emergence, modification, suspension and terminaton of a corresponding labour relationship.

5. Maintenance of effective labour law status of a medical employee requires a labour contract in force, as well as a row of additional conditions to be met, and these conditions include, in the first place, the need to preserve: 1) the appropriate level of theoretical knowledge and practical skills, (2) the required level of personal health. Besides that, long breaks (more than five years) are not allowed in the implementation of medical activities.

6. The change in the labour law status of a medical employee is understood as a modification in one or more of its constituent elements: rights, duties, liabilities, etc.

7. Since the existence of a labour contract in force is the basis for the emergence and existence of the special labour law status of a medical employee, the special labour law status of a medical employee may be suspended only when the professional himself is suspended from his work in accordance with any provision of Article 76 of the RF Labour Code, or of part 2 of Article 351.1 of the RF Labour Code.

8. A ground for termination of the special labour law status of a medical employee is the termination of his employment contract (Articles 71, 77 of the RF Labour Code). Since the special legal personality of the medical employee is a necessary prerequisite for his special labour law status, in some cases, termination of this status may be preceded by the termination of the special legal personality of the medical employee, which is carried out on the basis of a judicial decision or as a result of the circumstances provided for by law. The circumstances, in their turn may be divided into two main categories based on length of the period of termination: 1) termination for a period of time (more or less lasting) and 2) termination for life.

There also exists a separate group of circumstances, in which the special labour law status of a medical employee terminates, while the corresponding special legal personality remains in existence. Such circumstances include all the general grounds for termination of labour contract that were not mentioned above. When these circumstances come in effect, they do not prevent a medical employee to enter into another labour contract at any time after the previous one was terminated. In case if any employer agrees to hire him as an employee, this medical employee gets back his special labour law status.

9. One of the possible classifications of the rights and duties of a medical employee that constitute the content of his labour law status is the classification based on legal value and scope of effect of the document where they are established.

10. Besides the rights and duties established in the law, for the proper achievement of the main objectives of a medical employee, i.e. protection of health of the patient, the medical employee should have a sufficiently wide range of discretionary powers. This discretion is based upon the uncertainty of conditions and prerequisites of the labour of a medical employee, factual inequality between the doctor and his patient and the public significance of medical labour. All of this implies certain elements of professional authority that the doctor (professional) holds over the patient (non-professional). The discretion follows from the nature of medical practice and constitutes an element of the special labour status of the medical employee vested under Article 70 of the Fundamentals with the status of the doctor in charge, and it is included in the specialized (differentiated) component of his special labour law status. But the doctor in charge is vested not only with the professional discretion inherent to every medical employee as a participant in labour relations, but also with certain employer\'s discretion since for the purposes of providing medical care to individual patients, he has the right to assign tasks to other medical employees, while their suggestions may be implemented only upon approval by the doctor in charge.

The doctor’s discretion is subject to certain conditions: (1) no "rigid prescriptions" as to the approaches of the patient’s treatment that are governed by he standards and orders of medical practice (Article 37 of the Fundamentals), (2) all actions should be driven by the purpose to provide the best care to the patient, (3) the doctor in charge must have the necessary position, specialty and qualifications that would allow him to act in a certain way within the professional field. On the other hand, the limits (borders) of the use of discretion must be determined by the doctor in charge himself depending on the severity of the disease and (or) the state of the patient, as well as urgency of medical intervention. In addition, it would be necessary to point out the duty of a medical employee to exercise discretion with account taken of the general principles of law, such as reasonableness, lawfulness, integrity, fairness and expediency.

It is necessary to establish on the level of legislation the conditions and limits of disrection of a doctor in charge, depending on a specific situation related to the patient’s state of health, which will contribute to the best implementation of the constitutional right to health care and medical assistance. The improvement of the status of the doctor in charge would allow him to operate outside the instructions of the employer (medical institution) in certain situations, if it is associated with the need for urgent solutions to save the patient\'s life and ensure his recovery.

11. Emergence of such a modern feature of medical labour as specialization has led to the division of the labour law status into the two components: the general one (universal) and the specialized one (differentiated). This fact has contributed to the further division of the specialized (differentiated) component depending on narrow field specializations that medical employees may possess and conditioned by the state of health of a concrete patient and specific diseases that he suffers from.

12. Such a modern feature of medical labour as cooperation allows to balance the medical specialization, it brings different medical employees and their labour skills together in order to provide medical care to a specific individual, i.e. the patient, who is ill with a specific disease, it allows to eliminate the borders arising in the course of his treatment. Thereby, the well-balanced labour law status of medical employees through its certain elements based upon cooperation in medical practice, helps to eliminate the professional division amongst medical employees that emerged due to those various skills, abilities and knowledge that they have, and resulting from different medical specialties, and to provide the best quality of care to each patient, taking into account his individual characteristics.

13. The status of a doctor in charge may be provided to a medical employee only through a decision of the head of a medical institution (or of a department thereof), since under paragraph 6 of Article 20, Article 22 of the RF Labour Code it is the employer represented by the head of an entity or his representative that can give binding instructions to their employees, and third parties (in our case, patients) are not allowed to do that. In this case, this power, if granted to the chief medical officer, would complement his labour law status to improve general coordination in a medical institution.

14. Of those powers of the doctor in charge that were described above and set forth in the law (elements of labour law status) it follows that the doctor in charge is an employee that carries out not only professional medical duties, but also managerial functions, i.e. the functions that, as a general rule, belong to the head of an entity and that are reflected in distributing assignments amongst the entity’s employees. But in the course of medical practice it is the doctor in charge, who is the person directly responsible for his patient’s whole treatment in the medical institution and for these purposes he has all necessary powers, including supervisory powers and the powers to manage cooperation in medical power. At the same time, in order to improve the functioning of a doctor in charge in a medical entity it seems necessary that this medical entity should adopt such local regulations that could elaborate on the managerial functions of a doctor in charge.

15. Given the possibility of the cases of negative cooperation in the area of medical labour that would negatively influence the quality of medical care, it is necessary to clarify the term “conflict of interests” in medicine by amending paragraph 1 of Article 75 of the Fundamentals. For these purposes it would be appropriate if the RF Ministry of Health adopted a respective regulation clarifying the term “conflict of interests” in medicine by indicating the typical situations that fall within the ambit of this term and providing for the measures of prevention and settlement of such a conflict. Moreover, given the constitutional significance of the right of individuals to quality medical care, it would be reasonable to establish in legislative acts the procedures binding on a medical employee when notifying his employer on unethical or unprofessional behavior of his medical colleagues, provided that this behavior is aimed against the life and health of a patient.

16. It appears reasonable that the medical employee (doctor) should provide notice on the conflict of interests not only to the head of medical institution or an authorized authority (as it is required by paragraph 2 of Article 75 of the Fundamentals), but also, and in the first place, to the potential victim of such a conflict, i.e. the patient. This duty follows from the statutory norm that the medical employee (doctor) must provide to the patient, before getting his voluntary informed consent, all the information that might influence his informed consent as to the medical interference or either refusal against it (paragraph 1 of Article 20, Article 22 of the Fundamentals).

The implementation of these conclusions and statements must contribute to the development of the content of the rules governing the labour law status of medical employees, as well as provide a more effective application of these rules for the purposes of improvement of the quality of medical care to the population.

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