INTRODUCTION

Relevance of the research carried out in this dissertation. Development of effective economic and legal mechanisms to ensure the constitutional rights of Russian citizens to life in dignity implies that the state should take, as a priority, various measures to ensure to everyone medical assistance and protection of his or her health.

And this medical activity, whereby the medical assistance is provided, should be directed primarily at preserving human health and life, and in this sense it should be considered as carried out in the public interest of a special type of professional activities directly related to the implementation of everyone\'s constitutional right to health protection and medical assistance.

Thus, the universal right to health and medical care proclaimed by Article 41 of the Constitution of the Russian Federation in its practical implementation is to a large extent determined by the content of labour of concrete medical employees, and this circumstance alone should cause the attention of the Russian legislator to identify and formalize in legislation the variety of measures designed to ensure the due quality of the medical activity carried out in our country, which has as a special object of its application the human health, and therefore the well-being of the society as a whole.

This circumstance requires, in its turn, to identify the characteristics of this activity and then to take them into account in the course of the legal regulation of the social relations that mediate it.

At the same time, it should be borne in mind that the exercise of medical activity, as rightly noted by A.I. Ivanov, generates a whole set of social relations that mediate the provision of medical assistance, the most important of which are: 1) the relationship between the patient and the medical organization within which the interaction of medical employees and patients regarding the provision of the latest medical care; 2) the relationships as to compulsory health insurance arising between the subjects of compulsory (in some cases - voluntary) health insurance (an individual, an insurer, a health insurance organization and a medical organization) in respect of the provision of health care for individuals in case of an insurable event at the expense of the accumulated funds and the finances for the purposes of preventive measures; 3) labour relations between medical employees and medical organizations.

In turn, each group of these relations, one way or another, contributes to the realization of the constitutional right of everyone to health and medical care.

Based on the foregoing, it may be concluded that the quality of medical assistance in our country, as being carried out mainly by medical employees of specific medical institutions, largely depends on whether they fulfill properly their employment obligations and whether the patients’ rights are observed with sufficient completeness.

Thus, based on the premise that the implementation of the constitutional right of everyone to health and medical assistance, as well as, indeed, the health of the entire population in our country is directly linked to the quality of medical care provided to a patient in medical organizations and depends to a large extent on the performance of medical employees and on the implementation of their labour rights, now therefore we can establish that the rules of Russian labour law have a considerable potential in providing legal impact on the process and outcome of medical assistance via regulation of the content of the work of medical employees that they carry out in specific conditions of their work, salary, working hours and other factors relevant to their employment.

In addition to the above, it is necessary to take into account the fact that the realization of the rights and duties of medical employees while they provide medical assistance to their patients constitutes the content of their employment, and this fact leads to the conclusion that these employees must have a defined labour law status; this status includes not only a set of general labour rights, duties and liabilities, but also a set of special ones, which may differ in their type and content, depending on the position, specialty, qualifications, working conditions and other circumstances of a specific medical employee.

In view of the foregoing, it is extremely important to reveal more fully the legal contents of this legal (labour law) status of a medical employee and to consider the whole range of its inherent characteristics, not only in static, but also a dynamic position. The most detailed description of the content of legal (labour law) status of a medical employee in its static and dynamic aspects, will apparently help to identify in depth the strong sides, weaknesses and gaps in the mechanism of legal regulation of the labour of medical employees, and thereby to identify the ways to improve the legal mechanism of regulation of the labour of medical employees in order to protect patients\' rights and to ensure adequate medical assistance, and the rights of medical employees to decent labour.

All of the above determines the research of the present dissertation as important and relevant.

Degree of scientific development of the topic. In modern labour law science there is still little attention given to a comprehensive review of the special features of labour law status of a medical employee.

The earliest studies on the problem of legal regulation of labour of medical employees, including, in particular, certain features of a labour law status of a medical employee were carried out by K.Ya. Ananyeva^[263] more than 40 years ago (in 1968). At that time she has covered the issues of labour time, vacation and salary of medical employees. In 1972, A.I. Mikhailov^[264] has defended his candidate’s dissertation with the topic “Features of legal regulation of labour and pension benefits of medical and pharmaceutical employees”.

This author has considered, in addition to pension issues, special features of employment contracts with medical employees, and also analyzed their conditions on working time, vacation and salary. In 1990, O.I. Ozozhenko^[265] made a theoretical dissertation research on the issues of how an employment contract is concluded and amended, as well as the specifics of the legal regulation of working time, vacation periods and salary of a medical employee.

However, it should be noted that certain aspects of the legal regulation of medical labour have recently been the subject of scientific research by V.I. Akopova, N.I. Besedkina, O.V. Leontiev, Yu.P. Lisitsyn, A.A. Mokhov, V.L. Popov, N.P. Popova, Yu.D. Sergeev, M.Yu. Fedorova, G.V. Khnykin, V.M. Shypova and other academics. In addition, in 2007, A.I. Ivanov^[266] defended his Ph.D thesis on legal capacity of medical employees and on the order of conclusion, modification and termination of employment contracts with medical employees, and in 2008 E.V. Astrakhantseva^[267] in her thesis analyzed the manifestation of unity and differentiation in the regulation of labour relations involving medical employees, and addressed the issues of legal regulation of their working hours and rest. Besides that, in 2012 N.A. Ivanova^[268] in her Ph.D. thesis also addressed a number of issues relating to the legal status of a medical employee, and paid attention to the issues of legal regulation of working time, rest periods and salary of medical employees in the conditions of reforms in the health care system. However, in all of these works the research of the labour law status of a medical employee still has not received a comprehensive and integrated analysis, as the authors have not considered in detail all of the elements of that status, i.e. rights, duties and liabilities of medical employees, with account taken of the context of traditional and modern features of the medical activity.

Meanwhile, these issues became the subject of research by the author hereof, which shows novelty of the contents of this thesis.

The purpose and objectives of the research.

The purpose of this dissertation research is to study the essential features of labour law status of a medical employee both in the course of its formation and development, and in the current conditions and, on the basis of the results obtained, to offer concrete measures to improve the contents of the labour law status of medical employee by means of determining the massive of the norms that influence the process of formation of this status, of assessing their effectivity and providing recommendations as to the proposed amendments to these norms. . Based on the research objectives, the following objectives have been set:

1) To research the history and purposes of the notion of the status in sociology, health care and law.

2) To determine the role of the labour law status of a medical employee in modern Russian legal system.

3) To provide a comprehensive description to the notion and contents of the labour law status of a medical employee.

4) To carry out a detailed review of the modern features of the labour law status of a medical employee.

5) To analyze the general conditions and the reasons for occurrence, modification, maintenance, suspension and termination of the labour law status of a medical employee and to define their characteristics.

6) To develop specific proposals for the legislator in order to improve the contents of the labour law status of medical employees.

Information base. The following statutory sources constitute the information base hereof: RF Labour Code, RF Federal Law dated 21 November 2011 No. 323-FZ "On the fundamentals of the protection of public health in the Russian Federation", as well as certain normative legal acts of the USSR and of the RSFSR and the regulations of the pre-revolutionary and modern Russia. A particular attention is drawn to the Fundamentals of the legislation on protection of public health (1993), since it was in this period, as a result of the transition to a market economy, that the need emerged for the introduction of special legal regulation of the relations concerning medical care, including the relations concerning the labour law status of medical employees. In addition, the scope of the study involves a significant amount of normative acts of the USSR and Russia that have become a source for transformation in recent decades, for example, the RSFSR Labour Code (1971), and others. It appears that the need to research these normative materials is not diminished by the fact that some of them are partially or completely abrogated nowadays or not applicable in the territory of the Russian Federation, as this analysis allows us to understand the genesis of the many modern features of legal regulation of the labour of medical employees working in our country.

The practical base for the research constitutes the analysis of the jurisprudence of the RF Constitutional Court, the RF Supreme Court, as well as of the courts of regions of the Russian Federation and of the federal district and city courts, including unpublished decisions, as well as of the decisions of the European Court of Human Rights.

The object of the research is the history of the formation, development as well as of the current state of the legal status in general and of the labour law status of a medical employee in particular, and the legal relations arising out of the implementation of the rules governing this legal institution.

It should be noted that inasmuch as the assessment of the legal status of a medical employee outside labour law regulation is the subject of for the research in other legal areas, therefore the problem of the legal status of a medical employee as a subject of civil and criminal law were not included in the object of this research. A different approach to the formation of the object of the research, among other things, would inevitably lead to an excessive increase of the volume of this dissertation.

The methodological base of the research embrace the following general scientific and specific scientific methods: comparative-historical (in order to research the legal status of an individual as a generic category and the legal status of a medical employee as a kind of the legal status of an individual), comparative- legal (in order to identify similar legal realities in other legal systems and to assess the prospects of their use to govern labour law status of medical employees in the Russian law), system-structural (in order to identify the structures for the research in the legal system and legislation).

In the course of the research the author employed the doctrine of the national theory of law, as well as of labour, constitutional, administrative, civil and other areas of legal theory set forth in the works of N.G. Alexandrov, S.S. Alekseev, D.N. Bakhrakh, N.I. Besedkina, A.B. Vengerov, A.V. Venediktov, S.Yu. Golovina, K. N. Gusov, V. M. Dogadov, M. A. Drachuk, A.I. Ivanov, M.A. Kovalevsky, A.M. Lushnikov, M.V. Lushnikova, S.P. Mavrin, M.N. Marchenko, D.A. Medvedev, L.A. Mitskevich, A.S. Pashkov, A.V. Polyakov, V.L. Popov, A.V. Riffel, Yu.D. Sergeev, G.S. Skachkova, V.N. Smirnov, I.O. Snigireva N.A. Sokolov, Yu.N. Starilov, S.G. Stetsenko, L.S. Tal, Yu.K. Tolstoy, V.V. Fedin, M.Yu. Fedorova, G.V. Khnykin, Ye.B. Khokhlov, P.E. Chesnokov and others. The publications of these academics have made the theoretical basis of this dissertation.

The scientific results of the research constitute the deduction of the labour law status of a medical employee as a special legal category out of the general category of the legal status of an employee as well as identification of its essential and meaningful features (in particular, such as the discretionary powers of the doctor in charge in respect of his patients and his autonomy in determining the strategy and tactics of medical treatment, etc.), allowing to distinguish the labour law status from related legal categories. The results obtained in the course of the research and the findings and suggestions based thereupon can be of use for further studies of the labour relations with the participation of medical employees, as well as for the improvement of existing labour and health legislation, and for the development of draft regulations aimed to settle the labour relations with the participation of medical employees, as well as in the organization and practice of medical care.

The scientific novelty of this dissertation is that it is one of the first systematic studies on the level of a monograph as to the theoretical issues of modern labour law status of medical employees and the issues of proper law enforcement practice after the complete entry into force in 2012 of Federal Law dated 21 November 2011 No. 323-FZ "On the fundamentals of the protection of public health in the Russian Federation" (hereinafter - the Fundamentals).

The following major theses are thus submitted for the defense:

1. Labour of medical employees is a key way to ensure implementation of the constitutional human right to health and medical care. Selecting a particular category of employees specializing in the protection of health of the citizens members of a particular group (or groups), and the support of their activities by the state and society are constitutional tasks of the welfare state. These objectives must be reached through the establishment for such employees (called medical employees) of the special labour law status (a status with certain features).

2. The special labour law status of a medical employee means the conjunction of the labour rights, duties and liabilities based on the law and inherent to medical employees that are implemented in the course of formation, maintenance, modification, suspension and termination of employment relationships vis-a-vis the medical entity.

3. In a special labour law status of a medical employee one must identify the following two components: a general (uniform) one and a specialized (differentiated) one. General (uniform) component of the labour law status of a medical employee constitutes a set of common and identical for all medical employees rights, duties and liabilities. Specialized (differentiated) component of the labour law status of a medical employee is a complex of special rights, duties and liabilities that correspond to the position, specialty and qualification of a specific medical employee.

4. 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 very nature of labour of the medical employee vested under Article 70 of Federal Law dated 21 November 2011 No. 323-FZ "On the fundamentals of the protection of public health in the Russian Federation" by 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.

5. Basic classification of grounds for the differentiation of legal regulation of medical employees involves the traditional and modern features of medical practice, which must be taken into account by the legislator in the norms providing medical employees with specific rights, duties and powers to act in a certain way and be accountable for their actions.

In turn, the traditional features of the labour law status of a medical worker are based upon the constitutionally valuable traditional features of medical practice, such as: a) the special purpose in the labour of medical employees manifested in the maintenance and (or) rehabilitation of health (health protection) of the patient, which stipulates, in particular, public importance of this work; b) the actual inequality in the relationship between a medical employee and a patient, creating the preconditions for the professional power in respect of the patient and implying that there is a need for, inter alia, trust towards the medical employee and medical profession as a whole on the premise that medical employees follow the complex of moral and ethical standards; c) the increased complexity and multiplicity of conditions and prerequisites for the labour of medical employee based upon the creative and risky nature of his work, accompanied by increased mental and intellectual stress; g) harmful and dangerous conditions of medical labour.

By contrast, the modern features of labour law status of a medical employee are conditioned by the features of medical labour itself that take place nowadays, of which the first and foremost is the cooperation in medical labour, helping to consolidate the efforts of medical employees with different skills, abilities and knowledge, arising out of their different medical specialties and of the specialization of medical labour.

6. The cooperation in medical labour features as the most important the role of the labour law status of a chief medical officer arranging the general (organizational) cooperation in a medical entity, which consists in the proper organization and management of all of its personnel, as well as the labour law status of a doctor in charge vested with organizational and managerial duties in the professional sphere and carrying out the individual (professional) cooperation between medical employees in respect of specific patients.

Theoretical and practical significance of the research.

The results obtained in this study and the findings and suggestions based thereupon may be of use for further research of the various aspects of employment relations with the participation of medical employees.

A large part of the theses submitted for the defense is relevant both to address specific issues that arise in the course of legal and judicial practice. The conclusions herein and the motives behind them can also be used in the process of resolving disputes related to the legal status of medical employees, and in the daily practice of those who participate in the legal relations in the sphere of labour and social protection of medical employees. Some findings of the study, especially those related to the legal nature and contents of the researched legal structures and their place in the legal system, will also be useful in the process of education. Materials of this dissertation may be used for teaching medical and labour law in the medical and legal institutions of higher education and in the advanced training courses for doctors and nurses, as well as in the preparation of educational and teaching manuals on the subject. Some of the proposals made in this dissertation can be used to improve the existing legal regulation of labour relations.

Structure of the dissertation. The dissertation consists of an introduction, three chapters that include 7 paragraphs, a conclusion and bibliography.