Modern features of the labour law status of a medical employee

A significant degree of separation and coordination in modern medicine, and the mass use of these mechanisms and some other circumstances that create additional risks - all of these are the essential features of modern medicine.

The feature that is particularly noteworthy is that there is a large number of relatively narrow specialists in modern medicine. Moreover, over time the level of specialization in this area is growing. It should be noted that this division (specialization) is now considered as having legal significance. In particular, some of the operations in the medical sphere are allowed to be carried out only by those medical employees who have passed a relevant professional training and (or) confirmed their qualification. In addition, medical employees possessing different specializations are usually vested with different labour law statuses.^[488]

Another feature of modern medical labour is its coordination (or cooperation) that emerged as a result of the growth of medical specialization. Lack of co-operation between medical employees of different specialties impeded a proper balance of medical specialization, and this could lead to tragic consequences, such as damage to health or even death of their patients.

Such modern features (or additional to the traditional ones) of medical labour as this considerable, legally significant and ever-increasing division (specialization) of labour, as well as the cooperation within this labour have arisen quite recently. They have appeared in the course of social development, one consequence of which was the use of new technologies, involving in some cases the need for additional division (specialization) of labour.

Since the modern features of the medical labour helped us reveal the specific features of the labour law status of a medical employee that correspond to the features of the labour, now therefore it would be fair to call such features of the labour law status as the modern features.

Let us now consider these features of medical labour in more detail since then we will be able to deduce from them the modern features of the labour law status that correspond to them.

Let us refer at the outset to the specialization of medical labour.

The history of the division of labour in medicine shows that the reason for it was the competition in the field of medical services that had existed even in quite distant times. ^[489] As for the particular form of the division in medical labour, which is its specialization, it has also been known for already a long time. We can find labour specialization even in the times of traditional medicine, this heritage existed in prehistoric times in traditional societies, some of which (or a part of the culture of which) has been preserved until nowadays.^[490]

By the end of the nineteenth century, medical science has achieved, largely due to its specialization, the state when it became apparent that it is impossible for one person to study all of its achievements.

The importance of medical specialization is recognized, in particular, in international instruments ^[491] and in the jurisprudence of the European Court of

Human Rights (hereinafter - ECHR)^[492], related to the medical treatment of prisoners.

Specialization is used in modern Russian medicine, too.

The legal basis for such a differentiation in the sphere of medical labour is the general rule of Article 143 of the Labour Code. Furthermore, there are also some other bases for such differentiation that are more specific. In particular, Article 32 (2) of the Fundamentals expressly provided for the division (specialization) of medical labour, i.e. the division by types of the medical care: (1) primary medical care, (2) specialized medical care, including high-tech care, (3) emergency medical care, including specialized emergency care, and (4) palliative medical care.

Special federal laws were adopted for the purposes of governing certain types of medical activities (specialties) of particular importance for the protection of public health, such as treatment of tuberculosis, sanitary and epidemiological surveillance, mental health care and some others.^[493]. Pursuant to the provisions of Article 14 (2) (5) of the Fundamentals, the Ministry of Health and Social Development has issued Order dated 23 July 2010 No. 541n “On Approval of the unified reference schedule as to the positions of managers, specialists and clerks, section “Qualifying characteristics of the positions of the employees in the area of health care”” and rendered some other regulations^[494].

Thus, the emergence of such a modem feature of medical labour as specialization has led to the division of the medical labour law status into the two components: the general one (universal) and the specialized one (differentiated).

It should be noted that the specialization in medical care, though it is quite logical in the present conditions, meaning the scientific progress in medicine, on one hand, and the inability of one specialist to embrace all the modern achievements and use them, on the other hand, but nevertheless gives rise to very serious practical issues associated with the implementation of the constitutional right to protection of health.

The growth of medical specialization growth has led to a large number of problems, most of which were caused by a lack of the necessary co-operation in the field of medical labour - the cooperation, which would allow to balance specialization existing in this sphere and to gather the medical employees of different expertise around the patient that they are all treating. The benefits of cooperation in the field of medical (doctoral) labour is evidenced at least by the fact that it is on this basis that any individual medical employee (doctor) may get access to the full array of the knowledge and skills possessed by the medical community as a whole. Such access is a tool to achieve important goals of the medical employee (doctor) and the patient, i.e. to select and implement the most effective methods of preventing and treating diseases.

The need for the cooperative work in medicine has already been recognized as early as by Hippocrates.^[495] The Hippocratic Oath contains the doctor’s promise to transmit the knowledge, oral instructions and “everything else in the teaching” to his sons, as well as to the sons of his teacher (according to this oath he had to treat them as brothers) and to his pupils that are “bound by their duty and oath according to the law of the medics”, but not to anyone else.^[496]

At our times, in many cases (especially in the course of the treatment of patients in large hospitals), the lack of cooperation could result in substantial harm to life and health of a patient. The importance of this co-operation is evidenced by the following data. The analysis of 2455 cases of harm to life and health of the patient, reported to the Joint Commission on Accreditation of the US hospitals showed that their basic premise in more than 70% of cases (of which approximately 75% ended up with death of the patient), was the lack of proper interaction (cooperation) in medical care.^[497]

The same problem, i.e. lack of sufficient coordination and continuity in medical care, exists in France.^[498]

A confirmation of the lack of proper legal mechanism of co-operation may very negatively affect the results of medical assistance can be found in the results of an investigation conducted by the special Commission established by the British Parliament to investigate the medical activity of Bristol Royal Hospital, one of the oldest hospitals in the UK.

In Bristol Royal Hospital there was a lack of the management necessary to ensure cooperation within medical staff and medical employees did not work properly in groups (teams).^[500]

Obviously, what happened in the Bristol hospital was that the hospital had a considerable uncertainty with regard to accountability and responsibility, and the hospital staff, in which there was a significant division of medical labour, did not work as a team. The investigation showed that a similar situation exists in many UK hospitals.

As a result of the foregoing, it was specifically stated in the recommendations issued as a result of the investigation that there was an urgent need for partner relationships (i.e., coordination of labour) among medical employees.^[501] These recommendations also pointed out that the doctors, nurses and administrative staff should have similar provisions in their employment contracts with a clear model of accountability, which would allow to ensure the best care for the patients. In particular, they recommended to make sure that the contracts with counsel doctors prescribed for a working place and instruments for such a doctor, while the doctor would undertake to be present at the hospital during his or her working hours and carry out the work explicitly provided for by the contract.^[502] Therefore, it was advised to modify the relationship between the hospital and the counsel, which was in a sense contractual, into a labour relationship.

The need for cooperation in the field of medical labour is also prescribed for in the previously mentioned provision of section 46.1 of the Special

Recommendations of the Council of Europe’s Committee of Ministers in respect of the European Prison Rules that allow to transfer sick prisoners to specialized institutions or to civil hospitals, if appropriate care cannot be provided to them in prison.

ECHR also recognizes cooperation in the medical sphere as a legally significant circumstance.^[503]

Russian legislation contains a significant corpus of standards to ensure cooperation in the field of medical labour. In particular, this is reflected in the doctor’s oath established by Russian law (paragraph 1, Article 71 of the Fundamentals). It requires the doctor to treat colleagues kindly and to approach them for help and advice, if required by the interests of the patient, and never to refuse colleagues in assistance and advice by himself. In addition, according to the previously mentioned Article 19 (5) (3) and Article 22 (4) of the Fundamentals, the patient has the right to receive advice from medical specialists. The same language is provided for in Article 26 (3) of the Fundamentals governing the provision of medical assistance to the persons deprived of their liberty. Furthermore, according to, for example, Article 35 (8) of the Fundamentals the emergency advisory teams of the ambulance have to provide medical assistance (except for high-tech medical care), even when they are called by a medical institution if it does not have medical employees that may provide emergency care or an ambulance, and when the necessary medical assistance cannot be rendered in this medical entity.

The chief medical officer and the doctor in charge are those special institutions, the existence and functioning of which is due to coordination in the field of medical labour (Article 70 of the Fundamentals etc.). The functions of the chief medical officer are coordinating the activities of all medical employees and providing such a distribution of the medical personnel within a medical institution that medical care could be discharged to every patient in the most timely and quality manner. The function of the doctor in charge is to arrange co-operation of medical specialists that must help the patient he is treating.

However, it should be noted that in addition to the medical co-operation, carried out exclusively in the interests of the patient (hereinafter - the positive cooperation), there is also medical co-operation, which is accompanied by a conflict of interests of medical employees (doctors) and patients (hereinafter - the negative cooperation).

Current Russian law provides a legal definition of the "conflict of interests" in the field of medical care (Article 75 (1) of the Fundamentals). A conflict of interests in this area burdens medical employees with certain informative duties - by establishing this rule the legislator actually prevents this conflict from having a negative effect on the patient\'s interests (Article 75 (1) and (2) of the Fundamentals.). In order to prevent conflicts of interests in medical labour the legislator has provided in Article 74, paragraph 1, sections 1 -6 of the Fundamentals the guarantees to limit the freedom of action for medical employees and heads of medical institutions.

At the same time, it appears that a medical employee (a doctor) must notify of the conflict of interests not only the head of his medical institution and a respective authority (under Article 75 (2) of the Fundamentals), but in the first place the one whose life and health may be adversely affected by such a conflict, i.e. the patient. This duty follows from the provision that the medical employee (doctor) is obliged to provide the patient (before obtaining a voluntary informed consent from him) with all the information that may affect his consent to medical intervention as well as his refusal to give such a consent (Article 22 (1), Article 22 of the Fundamentals). The duty to inform the patient of the conflict of interests is, in particular, recognized in the jurisprudence of the US courts.^[504]

Another guarantee against the conflict of interests in the field of medical labour, is that Russian government has introduced a special administrative control over such conflicts (governmental one^[505] and departmental one^[506]) and established a respective count of administrative liability.

However, there no legislative norms or judicial acts that would clarify the term “conflict of interests” for the purposes of medicine, and this leads to complications in determining whether there was an offence.

According to the norms of the law, and taking into account some of the opinions expressed in the doctrine,^[507] as well as the views of medical and pharmaceutical employees,^[508] it must be concluded that the conflict exists when a medical employee received directly or indirectly a certain remuneration or a benefit from any entity (pharmaceutical entity, in the first place) in order to “promote” a certain expensive pharmaceutical and, ultimately, to make his patients purchase it (without a warranty of positive pharmaceutical effect). As A.A. Kirillovykh pointed out, here there is an evident and direct link between the benefit received by a medical employee and his further professional activity. It appears that his further professional activity will not accord the interests of the patient. It may result in coercing the patient to purchase a knowingly unnecessary medicine or a necessary medicine at a disadvantageous (higher) price, or to buy a more expensive analogue with the same pharmaceutical effect or in a specified pharmaceutical entity.^[509]

In addition, a conflict of interests can be attributed to a situation where, for example, it may become economically advantageous for a medical employee (doctor) that he and not his colleague would treat a patient, despite the fact that a colleague could, by objective reasons known to that employee, achieve better results. This situation usually occurs when medical employees (doctors) start to "pay extra" to the colleagues if they send their patients to them.

The concept of the "conflict of interests" is included in Article 10 of the Federal Law "On combating corruption",^[510] in which it has got a wider meaning and even provides a definition of the "self-interest".^[511] In view of the difficulties encountered in practice with the qualification of such offenses, the Ministry of Labour and Social Protection of the Russian Federation in its Informational letter dated 15 October 2012,^[512] has described the specific typical situations that fall under this concept, as well as measures of to prevent and resolve them.

All of these regulations relate to state and municipal service, as well as the service in the RF Ministry of Internal Affairs and the work in other bodies and entities (public companies and state corporation) therefore these provisions cannot be directly applied for the purposes of the conflict of interests in medical institutions. It is obvious that these types of activity have different objects (although similar to each other in some respects).

Given the predominantly non-profit nature of medical care, as well as its ethical orientation, it can be assumed that a conflict of interests in medical care may occur not only when there is some pecuniary (material) interest of a medical employee, but also in case of his personal interest arising out of other circumstances. In this case, the personal interest of a doctor will adversely affect the performance of his professional duties to treat the patient properly or even make this performance totally impossible. This situation can, for example, occur when a doctor provides medical care to a close relative, or vice versa, i.e. to a person who caused some significant damage to (moral or material) to this doctor or to his family (or to the close relatives of his family members).^[513] In view of the possibility of all these circumstances that adversely affect the quality of medical care, we should specify the concept of "conflict of interests" for the purposes medicine, adding to paragraph 1 of article 75 of the Fundamentals, after the word "benefits" the words "or when other personal interest arises." In addition, it would be appropriate in our view if the Russian Ministry of Health published a respective regulation, clarifying the term "conflict of interests", indicating the typical situations that fall under this concept and establishing measures to prevent and resolve such a conflict. That normative legal act would ensure accuracy and objectivity in the application of measures as to a medical employee such as dismissal in the event of failure to resolve a conflict of interests (Article 81, paragraph 1, section 7.1 of the Labour Code). Thus, it would provide a proper procedure and material grounds for such an element of the labour law status of a medical employee as the liability for failure to resolve a conflict of interests.

Discussing the conflict of interests, it is also worth noting that in some countries medical employees are under the obligation to inform the employer (chief medical officer) as to unfair, non-professional behavior of his colleagues, when their actions are directed against the interests of patients.^[514] In Russia, such practice does exist at the level of specific medical entities, however, so far it is absent at the level of legislation.²⁵⁴ Meanwhile, it is worth noting these rules are included in Russian instruments of ethical character.²⁵⁵. Still, in view of the

²⁵⁴ For example, the head of one of the medical institutions in Altay region once ordered that all medical employees working in that institution comply with the provisions of specific document (probably, issued in the institution as a local administrative regulation) called “Coventant not to disclose confidential information”. In accordance with sections 6 and 7 of that document a doctor was obliged to notify his superior as to any attempts to obtain, as well as offers or coercion aimed at obtaining confidential information, or equally as to any cases of disclosure or preparations thereto (V Altayskom krae medikam khotyat zakryt\' rty i sdelat\' ikh donoschikami? [Do they want to make physicians close their mouths and make them scammers in the Altai Region?] // http://www.amic.ru/news/112947 (last visited: 08.10.2015). (in Russian)).

²⁵⁵ Under Article 16 of the Code of Ethics of the Russian Doctor, it is the doctor’s obligation to carry out impartial analysis of the mistakes of his colleagues as if they were his own mistakes and actively prevent the practice of his dishonest and incompetent colleagues, as well as of various types of non-professionals damaging the health of patients. (Code of Ethics of the Russian Doctor. Adopted by the 4^th Conference of the Russian Association of Doctors, November 1994 // http://www.med-pravo.ru/Ethics/EthCodRF.htm). These provisions were designed to meet the same standards of the International Code of Medical Ethics, according to which a doctor should be honest with patients and colleagues, and is not allowed to cover the colleagues who deceive their patients. (International Code of Medical Ethics. Adopted by the 3^rd General Assembly of the World Medical Association (Geneva, October 1949 ) // http://www.med-pravo.ru/Ethics/seventh1.htm.). A similar provision is contained in the Code of Medical Ethics of the Russian nurse. According to Article 13 thereof, a nurse, when faced with illegal, unethical or incompetent medical practice, must protect the interests of the patient and society, and is entitled to approach for support the public health authorities, the Association of Nurses taking on the protection of the patient from the measures of questionable medical practices. This duty is accompanied with respective liability. Thus, in accordance with Article 18 for a violation of the Code, the member of the association may be punished with: 1) an admonition; 2) a notice on incomplete professional adequacy; 3) suspension of membership for up to 1 year; 4) exclusion from the association with a respective notice of the attestation (licensing) commission (Code of Medical Ethics of the Russian nurse., adopted by the Allconstitutional importance of the right to quality medical care, it would be prudent to establish legally the procedures by which a medical employee must provide such information to his employer.

In respect of the conflict of interests we should note that such a modern feature of medical labour as the need for coordination thereof may conflict with such a traditional feature of medical labour as the autonomy of a medical employee (doctor). Indeed the autonomy of a medical employee (doctor) in medical labour presupposes that he is independent, i.e. that he is accountable only to himself and his fellows in medical profession, and that he may himself resolve any conflict of interest situations by preventing them. But nowadays medical employee is accountable and in fact he is bound to coordinate his actions (directly or indirectly) with his patient, who may often ignore his prescriptions, and with other persons, including his employer (medical institution), licensing bodies and with public and private entities authorized to exercise control over such a medical employee (for example, courts and insurance companies).

The need for such coordination - and it is usually provided by the law - implies a situation in which the medical employee is obliged to maintain the so- called "dual commitment (dual loyalty)", which means a commitment both to the objective medical interests of the patient and to the interests of other public and private parties.^{[515] [516] It is therefore this "double commitment" that is actually the only legally permissible conflict of interests in medical labour.}

Despite the fact that Russian law at the level of legislation (paragraph 1 of Article 71 of the Fundamentals) has established the general principle to resolve conflicts in medicine in favor of the patient, i.e. that the doctor should act solely in his patient’s interests, the possibility of a legally permissible conflict of interests in this area can change (and is already changing in many ways) these real opportunities that a medical employee (doctor) had for millennia. This distorts to some extent the social as well as the labour law status of this employee, his role in society.

Doctor’s legal commitment to some other goals and interests that in many ways are in conflict with the objective interest of the patient in practice is all the time narrowing the freedom of action for the doctor. And the lack of freedom of will and of action is the ground that seems to prevent the doctor’s not only legal, but also social responsibility for his actions (or inaction). However, this change in the doctor’s role (social and labour law status), though objectively reasoned but adverse for a particular patient in certain aspects, barely finds its recognition in society.

This suggests that such a modern (new) feature of the medical work, as significant co-operation, and its traditional characteristics, such as dominance of the interests of a patient over the medical employee’s own interests and trust between a patient and a medical employee do, in certain situations, compete with each other. The cases of negative co-operation in the field of medical labour will always raise questions as to the dominance of the patient\'s interests over the medical employee’s own interests and have a destructive effect on the trust between medical employees and their patients. The prohibition of such conduct is contained, for example, in the International Code of Medical Ethics (WMA), according to which a physician should not receive any financial benefits or other incentives solely for the transfer of patients, or for prescription of special products.

In order to prevent the competition between the modern features (if it is expressed in a negative cooperation, i.e. legally permitted conflict of interests) and the traditional features of the medical labour, a medical employee must still adhere to the traditional ones. In this case, he must, above all, implement the most important elements of his labour law status, i.e. the duty to provide quality medical care on permanent basis at any time (Article 71 of the Fundamentals) and to refrain from any actions that create a conflict of interests (Articles 74 and 75 of the Fundamentals).

It is obvious that an effective solution of the problem of cooperation in medical labour may be possible when there is a legal mechanism that could guarantee the existence of such cooperation, as well as the absence of a significant conflict of interests. In this regard it should be noted that in Russia the cooperation of medical employees, that is, their interconnectedness and interdependence (in fact, the systemic nature of this type of labour), is guaranteed, at first, by general constitutional provisions. These are primarily the rules of paras. 1 and 2 of Article 41 of the RF Constitution.

Secondly, in addition to these general guarantees, there are specific safeguards to ensure the necessary co-operation of medical work in the Russian healthcare system. (section 4 paragraph 5 of Article 19, paragraph 4 of Article 22, paragraph 3 of Article 26, paragraph 8 of Article 35 of the Fundamentals).

Third, the most important guarantees of cooperation of doctors that exist in the Russian health care system since the times of the USSR is the institution of the chief medical officer, i.e. the head of the medical entity, as well as the institution of the doctor in charge, as mentioned above.^[517]

The labour law status of chief medical officer ensures the general coordination of all medical employees in medical institutions. Chief medical officer is supposed to organize the overall process of providing medical care to all patients who approach for it. For these purposes, the legislator has vested him with a set of powers: to appoint and preside at a medical commission (paras. 1-2 of

Article 48, paragraph 3 of Article 59, paragraph 2 of Article 63 of the Fundamentals), to assign a doctor in charge and organize his replacement ( paras 1, 3 of Article 70 of the Fundamentals), under certain circumstances, to transfer certain functions of a doctor in charge to other medical employees, such as a paramedic or a nurse, in an order established by the authorized federal executive body (paragraph 7 of Article 70 of the Fundamentals), as well as to exercise some other powers.

The doctor in charge, as stated above, is appointed by the head of a medical institution (or of a department thereof) or chosen by his patient, provided that the patient obtained his consent (paragraph 1 of Article 70 of the Fundamentals). It appears that even in the latter case, 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. Therefore, such a power of a chief medical officer, if formulated explicitly, could complement his labour law status providing general coordination in a medical institution.

The labour law status of a doctor in charge implies not only that he treats his patients on his own, but also that he is bound to arrange timely and qualified examination and treatment of the patient (when the doctor in charge does not have the necessary knowledge, skills and abilities to provide such assistance since he has a different specialization), including the duty to invite at the request of the patient or of his legal representative a specialist for consultations and to convene, as appropriate, the council of doctors. At the same time, he has some exclusive powers prescribed by law, such as to determine the diagnosis of the patient, and to implement the recommendations of advising specialist, if it is not a case of emergency medical care (Article 70 of the Fundamentals).

Thus, the labour law status of a doctor in charge (the elements of this status) is designed to ensure cooperation of other medical specialists so that they could provide proper medical care to a particular patient.

As a general rule, under Article 15 of the Labour Code, an employee performs his or her work on his or her own. However, it is clear that the situation described above with the doctor in charge is an exception to this rule, as the labour activities of other medical employees, acting per the instructions of the doctor in charge, is essentially the work of the doctor in charge. The actions of other medical employees are limited by the will, the desire, and imperious order of the doctor in charge.

In addition to that, based on the elements described above, the labour law status of the doctor in charge appears to have a certain extent of imperious character, since he is empowered to give orders to other employees. Typically, in labour relations these features belong not to an employee, but to an employer. However, there are exceptions to the rule, when some persons from among the administrative staff of the organization, although not authorized to speak on behalf of the employer in general, still do exercise certain powers of an employer, so far as they constitute their job functions.

As N.G. Alexandrov rightly pointed out, in employer’s internal regulatory control the "employer" is always represented by the members of administrative staff that are the closest responsible managers. These responsible managers as "cosubjects" in employment relationship on the side of the legal entity do have certain rights and duties, and they bear their own liability for failure to fulfill the latter. Such a responsible manager is the person who was granted an operational independence in the use of the labour power of a certain group of employees and in operation of a certain part of the inventory (such employees may be, for example, heads of departments). In an employment relationship such a responsible manager also acts as "an employee", as the very management is also a kind of job performed within an employment relationship. But the contents of this type of work include the exercise of specific powers and duties on the side of "the employer" as labour relations with other employees.^[518] From this it follows that the process of organization of labour in modern production is a complex system in nature, requiring relative independence of some individual structures of the system, and hence the heads of its structural parts do have some management powers, on the one hand, and there must be co-ordination between the separate parts within the system itself, on the other.

It should be admitted that by giving the doctor in charge an autonomy (independence) from the superiors (head of department, chief medical officer) when deciding on the treatment of the patient, this sets a limit for the rights of the "employer" (head of a medical institution, chief medical officer), and in addition that gives to the doctor in charge, who is, in fact, an employer, a part of the rights of the "employer" as regards the coordination of the activities of other employees (primarily, of the medical personnel).

It seems that 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 the managerial functions, i.e. the functions that, as a general rule, belong to the head of an entity and that constitute in distributing assignments amongst the entity’s employees. Thus, the doctor in charge is the person directly responsible for his patient’s whole treatement in the 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 elabourate on the managerial functions of a doctor in charge.

Thus, summing up the above, it should be noted that the cooperation allows to balance the existing medical specialization. The cooperation brings medical employees together, but not around the disease, it brings them around an 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 (these borders may be related to the lack of continuity in medical care, lack of appropriate interim monitoring of the patient during a break between the provision of various types of medical care, etc.). 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 its individual characteristics. The most important roles in this cooperation of medical employees around one patient is played by the labour law status of a doctor in charge, as well as by the labour law status of a chief medical officer of the medical entity. Chief medical officer, using his powers (elements of his labour law status) maintains general (organizational) cooperation in the medical organization, which consists in the proper organization and management of the activities of all its personnel, including all medical employees working in the medical organization. Implementation of these powers requires, in particular, appointment of a medical commission and of a doctor in charge, as well as transfer of his functions, if necessary, to nurses and so on. Doctor in charge, endowed by the law with organizational and managerial powers that are the constituent elements of his labour law status, maintains individual (professional) cooperation of medical employees around an individual patient, in the treatment of which he is engaged: he convenes the council, invites advising specialists, sends his patients to another medical institution for specialized medical care in accordance with the plan and gives permission for the implementation of the recommendations of advising specialists etc.

Considering all of the above, such modem features of medical labour as specialization and cooperation can be put in the basic structure of the special labour law status of a medical employee. This structure then can be determined through the group of certain specific elements of this status. The first group of these elements is based upon the specialization of medical labour, and the second group is grounded upon the cooperation thereof. Both groups of the elements of labour law status flow from the patient\'s constitutional right to receive quality medical care.

Thus, the elements of special labour law status based upon specialization of medical labour include:

a) legal duties, such as:

A group of general duties of medical employee that are aimed at providing specialized medical care in accordance with his qualifications, job descriptions, official duties and functions procedures and standards of care (section 4 of Article 10, section 5 paragraph 2 of Article 14, section 3 paragraph 5 of Article 19, Articles 37 and 73, section 2 paragraph 1 of Article 79 of the Fundamentals, Unified Qualification Register for Heads, Officers and Clerks, chapter “Qualifications for the professional positions in the field of medical care” and other regulations^[519]);

A group of special duties of a medical employee related to certain types of specialized medical care:

- duty to provide primary medical care, specialized medical care, including high-tech care, emergency medical care, including specialized emergency care, and palliative medical care in an emergency, ambulance and planned form (sections 34 of Article 2, section 17 paragraph 1 of Article 16, sections 2 and 1 paragraph 3 of Article 21, Articles 32-36, section 1 paragraph 1 of Article 79 of the Fundamentals, as well as other regulations^[520]);

- duty to provide certain types of specialized medical care (medical expertise, medical evaluation and physical tests - Article 46, Chapter 7 of the Fundamentals; medical care to women - Articles 52, 56 of the Fundamentals; medical care to minors - Articles 7, 54 of the Fundamentals; reproductive technology care - Articles 51, 55, 57 of the Fundamentals; assistance in donorship and transplantation - Article 47 of the Fundamentals; other types of specialized medical care - Articles 40-44, paragraph 5 of Article 66, paragraph 1 of Article 67 of the Fundamentals and other regulations ^[521]).

b) corresponding prohibitions, including the following ones:

prohibition on refusal to provide medical assistance in an emergency form - paragraph 2 of Article 11 of the Fundamentals.

c) special rights and powers granted to medical employees; they include, for example:

right to vocational training, retraining and advanced training - section 1 paragraph 1 of Article 72 of the Fundamentals;

right of a specialist doctor (at the invitation of relatives or legal representative of the deceased) to participate in autopsy - paragraph 6 of Article 67 of the Fundamentals;

right of certain specialists (doctor in charge, paramedic, dentist) to issue a professional disability sheet п - paragraph 2 of Article 59 of the Fundamentals;

right of a head of a medical entity to assign certain functions of a doctor in charge to medical employees of other specialties - such as a paramedic or a nurse - paragraph 7 of Article 70.

The elements of a special labour law status that exist due to the cooperation in medical labour do constitute:

1) legal duties, such as:

duties of a head of a medical entity (chief medical officer) to appoint a medical commission (paragraphs 1-2 Article 48, paragraph 3 Article 59, paragraph 2 Article 63 of the Fundamentals), to appoint a doctor in charge and to assist a patient in choosing another doctor in charge (paragraph 1 Article 70 of the

Fundamentals), to replace a doctor in charge (paragraph 3 Article 70 of the Fundamentals), to arrange the cooperation between his medical entity and other medical entities as well as other organizations, state and local authorities in the purposes of providing medical care (paragraph 2 Article 6, Article 9 of the Fundamentals),

duties of a doctor in charge to arrange prompt and qualified physical examination and treatment for his patient, to engage, per request of a patient, medical specialists for counselling, to convene, when necessary, the medical council, to approve the recommendations of advising doctors when they are proper (paragraphs 3-4 Article 48, paragraph 3 Article 66, paragraph 2 Article 70 of the Fundamentals),

duty of a doctor in charge to refer his patients to other medical institutions for specialized medical care in a planned form (paragraph 4 Article 21 of the Fundamentals),

duty of a medical employee to provide a written notice to a head of a medical entity informing him that there is a conflict of interests (paragraph 2 Article 75 of the Fundamentals),

duty of a medical employee to treat his colleagues with kindness, approach them for assistance or advice when the interests of his patient require thereof (paragraph 1 Article 71 of the Fundamentals),

duty of medical employees of different specialties to provide medical advice to their patients (section 3 of paragraph 5 Article 19, paragraph 4 Article 22, paragraph 3 Article 26, parargraph 8 Article 35 of the Fundamentals)

duty to provide medical care as part of a labour collective (paragraphs 1 and 2 Article 41 of the RF Constitution).^[522]

2) corresponding prohibitions to include, in particular:

prohibition to perform a complex of certain actions, such as to enter in an agreement with a pharmaceutical company undertaking to prescribe or recommend to his patients certain specific medicines, medical devices, and perform other actions of similar kind (Article 74 of the Fundamentals.);

prohibition to deny assistance and advice to his colleagues (paragraph 1 Article 71 of the Fundamentals);

prohibition to participate in a council discussing the diagnosis of brain death for the experts participating in the removal and transplantation of human organs and (or) tissues (paragraph 3 Article 66 of the Fundamentals);

3) special rights and powers granted to medical employees. These include, for example:

right of a head of a medical entity (chief medical officer) to assign specific functions of a doctor in charge to a paramedic or a nurse (paragraph 7 Article 70);

right of a medical specialist (at the invitation of the relatives or of a legal representative of the deceased) to participate in an autopsy (paragraph 6 Article 67 of the Fundamentals).

As to the special liabilities of medical employees (including disciplinary liabilities), they always based on a a set of special duties and powers in the field of medical labour. The ground for such liabilities is a failure to comply with the above duties and prohibitions or to exercise the above powers. It should be noted that for certain offenses in the area of specialization and cooperation of medical labour there are also special counts of administrative or criminal liability. Equally, these violations can also serve as a basis for disciplinary liability. A special ground for such liability may be that a perpetrator committed any of the acts referred to in paragraph 7.1 Part 1 of Article 81 of the RF Labour Code.

(Naygovzina N. B., Kovalevskiy M. A. Sistema zdravookhraneniya v Rossiyskoy Federatsii: organizatsionno-pravovye aspekty [System of health care in the Russian Federation: aspects of legal arrangements]. M., 1999. (in Russian). - P. 18-25).

For more information about the rights, duties and liabilities of medical employees as the elements of their special labour law please refer to paragraph 2.2 of this paper.

Thus, it should be concluded that the features of modern medical practice are taken into account by the legislator in the form of the regulations providing medical employees with special rights and special duties to act in a certain way. In case of non-compliance with these specific duties the legislative norms of medical malpractice shall be applied. So far as these rights, duties and liabilities are based on the features of modern medical practice, they therefore constitute the modern elements of labour law status of medical employees (modern features of their labour law status). These features of the labour law status of medical employees provide it with specificity, as compared with labour la statuses of other categories of professionals, and ensure the achievement of one of the main constitutional objectives, i.e. the timely organization and provision of quality medical care aimed at the preservation of life and the maintenance of health of a patient .