The content of labour law status of a medical employee.

Earlier in this paper we discussed the construction of the special labour law status of a medical employee, the elements of which are the labour rights, duties and liabilities based on the law and inherent only to medical employees.

Let us now consider the content of the special labour law status (both of the general (uniform) and of the specialized (differentiated) components thereof).

In accordance with Article 402 of the RF Civil Code the actions of the debtor\'s employees as to the fulfillment of the debtor’s obligations shall be considered as the actions of the debtor. We can therefore conclude that the rights and duties of a legal entity, which represent the content of its obligations, correspond to the respective rights and duties of this entity’s employees. Meanwhile, who exactly of the employees of the legal entity will have the appropriate rights and bear the corresponding duties, should be determined, above all, by the content of the local regulations of that entity and by the labour contracts with its employees.

Thus, the statutory rights and duties of medical entities that are professionally-medical in nature, can be compared with the professional and medical rights and duties of the employees (medical employees). Consequently, these rights and duties should be reflected in the composition of the special labour law status of a medical employee.

This circumstance makes it possible, in particular, to supplement the general (uniform) component of medical employee’s labour law status with certain rights provided for medical employees in the Fundamentals, such as: the right of a medical employee to provide medical assistance in certain specialty - this right flows, in particular, from medical entities’ right to exercise medical practice, arising out of the license issued to it (paragraph 11 Article 2); the right of a medical employee to issue prescriptions for medicines, official notices, medical reports and sick leaves - this right flows from the respective right of a medical institution (paragraph 3 Article 78), etc.

Since the specialized (differentiated) component of the medical employee’s labour law status is determined by the set of the special rights, duties and liabilities, which correspond to a specific position, specialty and qualification (this was already discussed), it is different for medical employees at different positions and (or) with different specialties and qualifications. For example, the set of rights, duties and liabilities of a hematologist is different from the set of rights, duties and liabilities of a psychiatrist. These two complexes are based on different legal norms reflecting the specificity of one or another specialty.

The specialized (differentiated) component of the medical employee’s labour law status is dominated by the system of rights, duties and liabilities that are differentiated according to, first of all, the specialty of a given employee, and only after that depending on other circumstances (position, qualification etc.). It is the connection with a particular specialty that may serve as, for example, a prerequisite for being employed in a certain position and for the duty to comply with respective professional medical standards. Therefore, the basic classification of the specialized (differentiated) components of a medical employee’s labour law status will be the classification based on specialization of medical employees.

For example, such specialty as radiology would create for a medical employee possessing it a certain set of rights, duties and liabilities related to the X- ray studies. In particular, this medical employee, when employed as a radiologist, will receive a set of rights, duties and liabilities based on the need to fulfill the federal standard of radiological examinations.

Thus, the specialty usually serves as a prerequisite for the emergence in medical employee’s status of a set of rights, duties and liabilities. This set of rights, duties and liabilities arisen on the basis of specialty shall be specified as to each medical employee in accordance with his employment contract and job description.

In addition to the classification of specialized (differentiated) components of labour law status based on the specialty of a medical employee (wide or narrow), it is also possible to divide them on the basis of position held, defining: (1) the degree of hazard and danger of a medical employee’s working environment, (2) the intensity of personal contact with patients in the course of work as well as other factors.

However, before engaging in the construction of a sufficiently detailed and consistent classification of the elements of medical employee’s labour law status (elements of his general (universal) and specialized (differentiated) components), it is necessary to address a number of common approaches used to secure these elements in a normative legal act, and primarily in the law.

The very fact of securing a rights in the law suggests that this right will be ultimately implemented in a particular respect. For the rights of the patient this legal relationship arises in the course of his interaction with a particular medical institution. This circumstance, in turn, means that any right of the patient must be reflected by a corresponding duty of the medical entity, to be fulfilled by its specific employee.

Such a duty corresponds to the constitutional right of a citizen to free medical care. According to Part 1 of Article 41 of the RF Constitution, medical care in state and municipal health care institutions shall be provided to citizens free of charge at the expense of the corresponding budget, insurance payments and other revenues. In practical terms, this provision can be implemented only when a citizen exercising his or her constitutional right to free medical care contacts the specific state or local health care agency, which, in turn, would perform its duty to provide the necessary assistance.

Furthermore, this duty should not have less legal protection than the right of a citizen, because the duty of public health agencies has a constitutional character too.

Now we would turn to the constitutional rights of medical employees. The RF Constitution does not contain an express provision regarding the rights of medical employees. Nevertheless, these rights are implied in a number of constitutional provisions. For example, Paragraph 2 of Article 41 of the Constitution provides that the Russian Federation has to take measures to develop state, municipal and private health care systems and to promote the activities that help the enhancement of public health. Now, in accordance with Paragraph 1 of Article 41 of the Constitution and paragraphs 3-5 of Article 29 of the Fundamentals, medical entities of state, municipal and private ownership are the elements of the respective health care systems. Therefore, the development of all of these systems presupposes, inter alia, the development of these entities, which should contribute to the realization of the constitutional rights of medical employees.

According to Paragraphs 1 and 3 of Article 2 of the Declaration on the Right to Development,^[401] development means the increase in well-being. A medical entity is established to carry out medical activity, which is produced by the actions of its medical staff.

Thus, the adoption of measures for the development of the state, municipal and private health care systems suggests, in particular, that the state should take measures to improve the welfare of medical employees and to implement their right to a life in dignity and free development, which is enshrined in Article 7 of the RF Constitution.

Medical employee’s rights possess a minimum of four specific features as opposed to the rights of other workers. First of all, they may be connected with providing health care to a specific patient (for example, the right to use means of communication or vehicles to transport the patient to the nearest medical entity in the cases when his life or health is in danger (paragraph 8 Article 10 of the Fundamentals); the right to provide medical care to unconscious persons without obtaining their consent (section 1 paragraph 9 Article 20 of the Fundamentals, etc.). It should be specifically noted that such rights constitute the majority.

Secondly, medical employee’s rights are often associated with providing security to the entire population (for example, such an aspect is inherent to (a) the right to carry out compulsory hospitalization of mentally ill patients and to exercise their supervision in a hospital facility (Article 29 of the Law on Psychiatric Care^[402]); (b) the right to carry out forced isolation of persons suffering from diseases that may be dangerous to others (section 2 paragraph 9 Article 20 of the Fundamentals); etc.).

Third, they may be related to protection of health of the medical employees themselves (right to use special clothing and special means of individual protection, reduced working hours, additional breaks for meals and rest, extra vacation days, delivery of milk and dietary food, etc. (Articles 221- 224 of the RF Labour Code, and others.).

Fourth, they may be associated with need to provide compensation, which is payable to medical employees inasmuch as they are found in adverse (hazardous) environment during their work (for example, the right to higher wages, allowances, bonuses, compensations, etc. - Article 147, 149 of the RF Labour Code, and others.).

We would also note that in the laws governing the activities of medical employees there is no exhaustive list of their rights. This circumstance is mentioned by a number of authors.

If the legislator secured such an exhaustive list in the law, it would mean that the legislator, in the absence of reasonable and (or) significant constitutional grounds, has actually limited the content of the constitutional right to health care. Thus, medical employees should have, in addition to the rights and duties enshrined in the law, a sufficiently wide range of discretionary powers necessary for the proper fulfillment of their purpose, i.e. protection of health of the patient.

This term for such powers is borrowed form the western legal literature. M. Vila is an author of the book, which is specifically devoted to the discretion of the judiciary, and he notes that: "In ordinary, non-professional use, the term "discretion" is applied in two ways: on the one hand it is associated with certain personal qualities such as sensitivity, rationality, prudence and the capacity for discernment. On the other hand, it has to do with the freedom to make decisions about what should be done in some special situations."^[406]

A "shadow" of these two meanings can be found in professional legalese language too. According to the well-known Black\'s Law Dictionary, discretion is a power (authority) to decide freely.^[407] In this case, discretion or discretionary powers of a public official (public official) is, according to Black’s Law Dictionary, the power (authority) or the right to operate under certain circumstances in accordance with their own decision and conscience, often within the official competence or in the course of their respective duties.^[408] A similar definition of discretion (discretionary powers) is given also by one of the leading French specialists in administrative law G. Braibant. He understood discretion as the freedom of persons in positions of authority to evaluate the situations and take decisions in respect of them.^[409]

It should be noted that the term "discretion" is also currently used in the Russian legal doctrine, as well as in law enforcement. An example of that is the legal positions of the RF Constitutional Court, in which it often discusses the presence of a certain discretion, i.e. the freedom of judgement: of the legislator^[410], of courts^[411], of the joint stock company\'s management bodies^[412], etc. It should be noted that the Constitutional Court of the Russian Federation uses such an institution as the "discretion" not only in its decisions but also in its legal analysis of both the public and private powers. That is, for the Constitutional Court of the Russian Federation - as well as for Western legal doctrine and practice - the nature of the power (public, private operative or other authority) is generally irrelevant for the purposes of discussing the institution of discretion in principle.

This institution is also used in labour law, in particular as the discretion of the employer. In this case it is used to provide fundamental characteristics for the master’s power of an employer, which is very often mentioned in Russian and international labour law doctrine. In our country, this kind of power and corresponding authority of the employer was for the first time mentioned by L.S. Tal, who practically raised it to the rank of the first and fundamental feature of the employment contract, which manifests itself in the fact that the hired person, while giving their labour force in favor of a company or an enterprise of another person thereby agrees to subordinate their personality to the master’s power of the employer.

In turn, the legal content of the master’s power is reduced to the right of the employer to appoint and indicate assignments within the ambit of the agreement between the parties, and to require persons employed in its enterprise, to adapt their behavior to their duties and to the internal order established by the owner.^[413] Thus, the labour force of the person that is obliged to work is to a large extent absorbed and sent to carry out other tasks, and therefore, in addition to the specific obligations established by the contract between the parties, there is also a special relationship of power and subordination.^{[414] [415]}

L.S. Tal’s position found support among modem Russian scholars. For example, A.M. Lushnikov and M.V. Lushnikova note that one of important issues raised by L.S. Tal and related to the employers\' personality is the dominion over a person in civil law and the nature of the master’s power as an institution of private law.

According to these scholars, the relationship between the institution of disciplinary liability and the institution of employers\' power is evident, as well as the vertical (reporting) nature of this power. They note that in Soviet literature the concept of the master’s power has been exposed to mostly unfounded criticism.

However, the concept formulated by L.S. Tal, has been reproduced for socialist labour relationship too, though with respective terminology differences.^[416]

A.M. Lushnikov and M.V. Lushnikova argue that employers\' legal personality provides the place for the interest of the employer in the use of someone else\'s hired labour. According to them, L.S. Tal has correctly described this purpose through the "right of the employer to use another person’s labour, within certain time and certain limits, as an instrument of his master\'s power, applying it at its discretion."^[417]

The position of L.S.Tal is also supported by the other Russian scholars, for example, M.N. Amelchenko.^[418]

It should be noted that this institution has received its greatest development in the administrative law. The reasons for that D.N. Bakhrakh, B.V. Rossiysky and Yu.N. Starilov discuss as follows: "It is impossible and undesired to deprive the administration of its discretionary powers, to swaddle it tightly with legal regulations. Within the framework of the law, it should be able to choose the best options."^[419] L.A. Mitskevich, while exploring the problem of regulation of administrative discretionary powers in administrative law in Germany, said that depending on the degree of limitation of the freedom of law enforcement in the exercise of their functions, one may distinguish between two main ways that the government exercises discretion: (1) public administration based on the law, (2) unbound public administration (administrative discretion). ^[420]

At the same time it should be taken into account that the medical relationship, i.e. the relationship between the medical employee (doctor) and the patient, is peculiar for the de facto inequality of participants in it, and that suggests that the medical employee certain elements of power (professional power) over the patient^[421]. It seems that is the reason why the modern science of health care administration recognizes that the relationship between the medical employee (doctor) and the patient (hereinafter - medical relations) entails such a component, as the managerial powers that the medical employee exercises in respect of the patient\'s behavior. In this sense, it can be argued that the labour of medical employees has a public significance^[422], and that apparently allows to apply to it a number of approaches that are usually applied in the field of public administration. However, while applying such approaches, one should always bear in mind the fact that the power of the medical employee over a patient is not uniform and has a mixed legal nature, which is connected with the nature of medical activity. Because of this, it appears that medical employees cannot be bound by strict regulations, as a kind of analogue of the public "active administration", because a medical employee actually works in an environment characterized by a substantial inherent uncertainty in the choice of specific means of influence on the patient, and this uncertainty is, in particular, based on the individual characteristics of the state of his mental and physical health and behavior.

This requires that, as well as in administrative law, there should be two legal regimes of administration over a medical employee and medical relations: (1) administration bound by the law, (2) unbound administration (discretion). The legal regime of administration bound by laws presupposes a clear regulatory scheme for the work of medical employees, by virtue of which they lack any discretion as to whether they should follow the regulations and how exactly they should these regulations. As to the regime of unbound (discretionary) administration, it is different from the regime of bound administration since it provides that medical employees are entitled to some discretion in deciding whether they should apply these regulations, and how exactly they will act.

When a person has discretionary powers this provides him with certain opportunities to select a specific option as to how to solve a problem that is in front of him. This in turn implies the ability to act in a certain way or refrain from taking any action, and, in the case of acting, the ability to select one of the variants of carrying out the selected action.

It should be borne in mind that, if we turn to the legal aspect of such actions, the freedom of the subject of power as well as its power over the people can never be absolute, despite the formal discretion it has. That is why it is hampered by a number of constraints. In particular, this freedom can only be exercised under the regime of the rule of law, which implies the existence of a certain control over its implementation.

A number of foreign papers have noted on the discretionary powers of medical employees - both in their relationship with patients and in their relations with their employer. For example, as early as in 1869 J. Ordronaux noted while exploring the relationship between a free medical practitioner and a patient: "A doctor always has discretionary powers over a patient who believes that the doctor will help him."^[423] This position is shared by modern scholars.^[424] A they also rightly believe that medical employees possess these discretionary powers not only when they are engaged in independent practice, but also when they are hired as employees. Exploring the relationship between the doctor-employee and his employer, A.C.L. Davies has rightly noted the following: "Many of those who are usually considered as employees, do have a considerable degree of discretion. For example, a doctor can work in a hospital as an employee, but the head of the hospital (manager of the hospital) cannot tell him how to treat his patient."^[425] The latter is an exception to the general rule of labour law in force. According to it, it is the employer and not the employee who has discretionary powers (the principle of master’s (employer\'s) power).^[426] At the same time, it should be noted that these powers are provided to medical employees not in the framework of employer- employee relations, but rather within the doctor-patient relations. The necessity to provide a medical employee with these powers is reflected in the doctor’s oath, too (Article 71 of the Fundamentals), one of the provisions of which reads as follows: the doctor must always act solely in the interests of the patient.

Indeed, nowadays medical employees (doctors) often have to act virtually outside the employer\'s instructions in order to fulfill their duty to provide medical aid and to save the patient\'s life. By performing their duties, medical employees often bypass the employer’s binding instructions and provide medical care even when the employer expressly orders not to do so for one reason or another (for example, when the medical entity is private, and the need for emergency medical assistance is not obvious, although it is assumed^[427]; or when a medical entity does not have the necessary medical equipment, medical devices, pharmaceuticals, etc., that are required to treat the patient^[428]).

In addition, it can be argued that the legislation has already provided a special case of giving a doctor certain discretionary powers, which is so for a separate category of medical employees, i.e. psychiatrists; this provision is embodied in Article 21 of the Law of the Russian Federation of 02 July 1992 N 3185-1 "On psychiatric care and guarantees of citizens\' rights in the course of its provision", which gives them the right to act outside the employer\'s instructions when making decisions as to providing mental health care.

Thus, on the basis of the above, we are able to conclude that medical employees should have a fairly wide range of discretionary powers necessary for the proper achievement of the objective of their medical activities, i.e. protection of health of the patient.

It is obvious that discretion as an element of the medical employee’s labour law status is conditioned by the character of medical practice. However, this element cannot be fully present in the labour law status of all medical employees, but rather of those who are endowed with the status of the doctor in charge under Article 70 of the Fundamentals, therefore, it may be a part of the specialized (differentiated) component of special labour law status of doctors (and not nurses).

Meanwhile it is worth noting that each medical employee has professional discretion, that is, the discretion of the employees that allows them to properly fulfill the duties of their employment (Article 21 of the RF Labour Code). This is connected with the fact that it is impossible to provide in a labour contract or in a job description a complete list of all rights, duties and powers necessary for a particular employee’s proper performance at work, as well as with the fact that the currently available safety practices and standards of care (Article 37 Fundamentals) do not cover the full list of possible medical procedures, interventions, inspections, etc., necessary for the proper treatment of each individual patient, taking into account their core and related diseases. With regard to doctors, this professional discretion is also reflected in the fact that the chief medical officer (employer) as a general rule may not interfere in the process of treating a particular patient, because every doctor has a sufficient degree of independence (autonomy) as to the choice of means and methods of treatment of a particular patient under Article 71 of the Fundamentals: the doctor shall act only in the interests of the patient. The doctor in charge has the same professional discretion. However, along with it, the doctor in charge also possesses the employer’s discretion, which is expressed in an opportunity to give assignments to other medical employees working in the medical institution, related to the means and methods of treatment of individual patients. The chief medical officer’s ability to transfer some of its employer\'s discretion to the doctor in charge stems from the norm of Paragraph 6 of Article 20 of the RF Labour Code, according to which the employer\'s rights and duties in labour relations are carried out by persons authorized to do so in accordance with federal law. In this case, the Fundamentals serve as this federal law. The rights and duties of the doctor in charge, as set out in Article 70 of the Fundamentals, do reflect, in particular, the employers\' discretion that he possesses. For example, the doctor in charge, if necessary, may convene the council of doctors, but medical advisers’ recommendations may be implemented only when they are approved by the doctor in charge. From these rules it follows that a recommendation of any individual doctor (specialist/adviser), to whom the patient was referred by the doctor in charge, may be implemented only when approved by the doctor in charge. And the specialist doctor cannot insist that his recommendations must be carried out. Consequently, the employers\' discretion of the doctor in charge does restrict the professional discretion of other doctors, i.e. specialists. A specialist doctor, when he receives a task from the doctor in charge, is strictly obliged to fulfill it. Otherwise, he can harm the patient, because he cannot know what treatment is applied at the moment or will be applied in future to the patient by other specialist doctors per the instructions of the doctor in charge. Thus, having a professional and employers\' discretion, the doctor in charge, for the purposes of providing the best medical care, should collect a team of medical specialists around his patient, while he himself serves as a leader of this team, because he is supposed to give them instructions and implements their suggestions only when he agrees therewith.

In some cases, a part of the employers\' discretion of the doctor in charge can be transferred to nurses or paramedics by a decision of the head of the medical institution in the manner prescribed by a special rule (part 7 of Article 70 of the

Fundamentals).^[429] This particular case of the discretion is aimed to protect the health of the patient and is associated with the possible lack of doctors in rural paramedic stations (or other medical institutions) and, therefore, with the need to entrust the function of the doctor in charge to the nurses working there so that they could, first of all, provide emergency medical care and (or) direct the patient to a medical institution having specific medical specialists. In the latter case, such specialist doctors also will not be able to refuse to fulfill the task of a paramedic or of a nurse to take the patient to the treatment, since the latter are carrying out the functions of the doctor in charge.

In view of the above it seems advisable to provide to a medical employee acting as a doctor in charge a statutory opportunity to act in a certain way, at his or her discretion, depending on the specific situation related to the patient\'s health status. In that, it would be prudent to legislate on the following conditions for exercising the discretion: (1) when there are no "rigid prescriptions" as to the approaches of the patient’s treatment that are governed by he standards and orders of medical assistance (Article 37 of the Fundamentals), (2) for the purposes of the best care to be provided to the patient, (3) when the doctor in charge has the necessary position, specialty and qualifications, allowing 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.

This position of the legislator will contribute to the best implementation of the constitutional right to health and medical care and would allow medical employees to operate more efficiently 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.

Presumably, it is for this purpose that the legal literature has repeatedly attempted to create a list of the rights of medical employees. Thus, E.V. Shleneva, among the specific rights of medical employees, identified the following rights: (1) the right to a reduction of working time, (2) the right to an additional annual paid vacation, (3) the right to an additional remuneration for harmful and hazardous working conditions, (4) the right to the state social insurance for the medical employees dealing with the threat to their life and health, (5) a set of special rights under Article 72 of the Fundamentals, (6) the right in certain cases to determine the legal status of the patient.^[430]

However, it appears that the list can not be called a classification, because it is not established on the basis of a single criterion for classification. In a sense, the author has listed some of the rights of medical employees directly related to their employment and to their interaction with the patient. She did not take into account a number of federal laws and normative legal acts issued on the basis of federal laws that have provided for certain sets of the rights of medical employees. These rights arise, in particular, in connection with the treatment of certain patients as well as with the work outside of normal working hours and outside of the ordinary regime (e.g., at night, in emergency, etc.).

G.M. Usov and M.Yu. Fedorova seem to act more appropriately in an attempt to solve this problem, by indicating on a number of general rights of medical employees. Among them they have discerned as follows: the right to engage in medical practice, including private medical practice, the right to create professional associations, the rights related to social and legal support, etc.^[431] Although it makes sense to note that this list of rights is also made out of a single classification criterion, and, moreover, it is based on the old Fundamentals.

A more systematic list has been proposed P.E. Chesnokov and E.G. Balutsa. These authors have divided the rights of medical employees into three groups: (1) general civil rights, the universal ones, provided by the RF Constitution, the RF Civil Code and other laws; (2) rights of all employees, regardless of the scope of their activities, envisaged by the labour legislation; (3) professional rights of medical employees based on the nature of their professional activities.^[432]

As a criterion for this classification they elected the degree of generality of the rights at issue. The first category involves the rights of any subject of law, and a medical employee is among them; the second one concerns the rights of all employees, and they include medical employees too, and finally the third category covers the professional rights of medical workers as special subjects of labour law.

However, along with the rights, it is necessary to give a general description to the duties of medical employees, as they are, firstly, almost totally associated with both protection of health of a particular patient and with maintaining the security of the population as a whole. This, incidentally, is the basis for their public (to some extent) character. Secondly, medical employees are bound to observe a number of limitations as mentioned above (for example, the prohibition to engage in strikes (Article 413 of the RF Labour Code). These limits are their specific duties aimed at protecting public health as a whole and carried out in public interest. Thirdly, many of the duties of medical employees have an ethical orientation, that is, their content cannot be properly set without taking into account the moral and ethical standards applicable in the field of medical labour. Such duties include, in particular: duty to always act in the interests of the patient, duty to keep medical confidentiality, duty to respect the patient, duty to consult with colleagues (section 1 paragraph 1 Article 6, Articles 13 and 71 of the Fundamentals), etc. Meanwhile, not all of these responsibilities are supported liabilities, so their performance is highly dependent on the moral stature of a medical employee, on his honesty and integrity.

It is necessary to note that not all of the duties of medical employees have found their place in the law, since in some cases these duties obviously correspond to the rights of patients. This makes it possible to agree with the A.I. Ivanov that medical employees have a general duty to do the work stipulated in the employment contract taking into account patient\'s rights. At the same time, we can not agree with his another reproach towards the legislator: the duty of strict compliance with patient’s rights is not clearly provided for in many laws and regulations or not is provided for at all.^[433] As mentioned above, there is no legal need for such express provisions.

Now let us turn to the list of the duties of medical employees, as proposed by Yu.D. Sergeyev. He divided them into the following groups: (1) duties related to the implementation of the rights of the patient (the obligation to relieve pain, to provide expert advice, to carry out examination, to provide treatment and maintenance in conditions that meet sanitary requirements, etc.); (2) moral and ethical duties dictated by the doctor’s oath (to respect colleagues, to appreciate and

respect teachers, to be rigor and fair with students etc.); (3) duties related to the specifics of medical activity (to comply with rules for handling medical equipment, to provide information as to the diseases that pose a threat to others, etc.).^[434]

This list of the groups of professional duties also lack any single criterion for classification (each separate group has its own criterion). Moreover, this list contains, mostly, the duties established in the Fundamentals. If it included the duties established in other federal laws or regulations issued on their basis, then the spectrum and number of the duties of medical professioanals would become much larger.

Another possible classification of the rights and duties of medical employees is the classification of based on legal value and form of the regulation on which they are based. For the purpose of this classification, the rights and duties are divided into the groups according to the legal value of the acts mentioned. Here there is the next level of classification: within each group the appropriate rights and duties are divided into sub-groups based on the nature (scope) of the legal instrument, in which they are established. On the basis of this classification one could discern the following rights and duties: constitutionally-related, internationally-related, labour-related, general, special, standard, qualification- related, profession-related, position-related.

In addition, we could also discuss contractual rights and duties, i.e., those rights and duties that are established in employment contracts with medical employees. However, since they do not reflect any specificity as to medical employees and will include the rights and the duties that have already been listed above, it makes no sense to highlight them specifically. Furthermore, in accordance with Article 6 of the RF Labour Code the content of a labour law status (except for the rights and duties of officials) are filled up through the issuance of respective regulations by public authorities. Thus, the rights and duties defined in labour contracts are not statutory and, therefore, do not relate to the labour law status, but rather constitute the content of the labour law position of each medical employee. It should also be pointed out that the rights and duties arising out of collective contracts and agreements may also supplement the content of labour law position of medical employees. However, it should be noted that a particular carrier of the labour law status cannot always influence the formation of this type of rights and duties (for example, in the case of admission in the institution, in which the collective agreement had been signed earlier).

All of the above groups of rights and duties of medical employees can be classified depending on which category of the medical staff they belong to. From this viewpoint, we can distinguish:

1) the rights and duties of doctors and

2) the rights and duties of nurses.

It is worth noting that the official powers and duties to the highest degree, as compared with other groups of rights and duties, provide details to the specialized (differentiated) component of the labour law status of a medical employee and fill it with the new content. If, then, the medical entity does not have its own job descriptions, the legal effect is taken by the norms of the federal law or other regulation providing for the general, professional or other rights and duties of a medical employee. For example, the duty to provide medical care in accordance with one’s qualifications, job descriptions, professional and official duties under Article 73 of the Fundamentals, is a general duty and, even if it is not listed in the job description, it does not cease to exist as binding for a concrete medical employee.

However, for the employer it is important to develop job description for every medical employee in a medical entity, since otherwise, if they fail to carry out their general, professional, special or any other duties, it would become problematic to bring such a professional to disciplinary liability. The following example may illustrate this problem. In one of the medical entities in St. Petersburg the specialist without higher medical degree started acting professionally as a doctor without being authorized to. The disciplinary liability measure applied in his respect, admonition, he challenged in court with reference to the absence of the job description that would bind him not to carry out certain medical manipulations, and the absence of such a provision in his labour contract. But the court has referred to the general principles of law and found the disciplinary liability to be lawful.^[435]

Specialized rights and duties in general do set only a general direction in a certain area of medical practice. Professional rights and duties are more narrow and focused on a particular specialty of medical employees with a certain level of training and recruited at a certain position.

It should be noted that international labour rights, as well as constitutional, labour and general rights and duties may serve as the core of the common (universal) component in the labour law status of a particular medical employee, provided that they contain no special orientation (e.g., international labour duties in the field of transplantation may belong only to the medical employees performing this type of medical activity, in connection with which they will fill a specialized (differentiated), and not a general (universal, the same for all medical employees) component of their labour law status, in contrast to, for example, an international labour duty to always keep medical secrecy, which applies to all medical employees. Qualification-related, specialized, standard, profession-related and position-related rights and duties will serve as the content for the specialized (differentiated) component of the labour law status of medical employees of different specialties working in various positions.

This division of rights and duties allows us to discern the difference in the specialized (differentiated) components of the labour law status of the medical employees of different professions with different skills and thus to apply different legal regulation in the course of their work, and to create new job descriptions as well as add the existing job descriptions of medical employees on the basis of applicable regulations.

As mentioned previously in Chapter 1 of this paper, in order to clarify the specifics of medical employee’s labour law status one should include the liability in the concept of the labour law status as well. For their professional offenses, medical employees can bear all kinds of legal liabilities: criminal, administrative, civil, disciplinary and material liability. However, in order to study the labour law status of a medical employee it is appropriate to consider mainly the disciplinary and material responsibility, as they have the labour law nature.

As to the material liability, medical employees bear it on general grounds. It should be noted that only the senior nurses can carry full material liability for the loss of the property entrusted to them.^[436]

Disciplinary responsibility of medical employees occurs in the case of nonfulfillment of the above groups of duties, mainly those that are specified in the job descriptions and employment contracts. But the non-fulfillment of their specific professional duties - i.e., the duty of medical confidentiality and duty to take measures to prevent or resolve conflict of interest - is a special reason for bringing a perpetrator to disciplinary liability (subsection. (с), section 6, paragraph 7.1 part 1 Article 81 of the Labour Code).

Since the labour of medical employees is connected to the health of the patient, one of the consequences when they fail to fulfill their duties is the harm caused to the patient\'s health, or a threat of such harm. Reliable detection of these offenses usually requires special investigation, which is a special feature of the process of bringing medical employees to disciplinary liability.

The law does not provide specific rules for bringing medical employees to disciplinary liability, although, in our opinion, they should be established in the labour legislation. For example, it seems appropriate, when bringing medical employees to disciplinary responsibility, to maintain special investigation by a specialized commission for the purpose of establishing the facts of what happened, the presence or absence of guilt in the actions of a medical employee and a causal link between the action and the result. This approach is traditional for the majority of medical institutions based on established corporate practice, however, it is not always supported by internal regulations of the employer. Typically, the medical commission works as such a specialized investigative commission.^[437] In some medical institutions this commission is called differently and may have varying competence: medical control commission (MCC)^[438] (it can be also established at the level of the region of the Russian Federation^[439]); clinical expert commission (CEC)^[440], the lethal outcomes investigation commission (LOIC)^[441], the commission on the auspices of the clinical-anatomical conference of doctors^[442].

In the process of investigation the employer with the help of experts should determine whether the effects of medical employee’s actions were an accident (defect of medical care as a result of accidental coincidence that the medical employee acting legitimately, within the job description and in accordance with the methods of treatment (diagnostics) adopted in medicine could not have foreseen or prevented^[443]); whether his actions entail legal necessity, legitimate risk or othercircumstances exempting from liability.^[444] In the case if one of these circumstances is established, the disciplinary liability should become out of discussion.

In addition, such an investigation would have been appropriate to be carried out when there is the material composition of a disciplinary offense present, including the damage caused to life or health of the patient or a real threat

thereof.^{[445] [446]}

To sum up, it should be noted that the content of the medical employee’s labour law status, the complex of his rights, duties and liabilities has a specific character in comparison with that of the other categories of Russian employees. The classification of rights and duties of medical employees allows to distinguish between the general (universal) component and a specialized (differentiated) component of the special labour law status of medical employees and to take into account these components in further legal practice. In addition, in order to properly achieve the main objectives of the medical labour - i.e. protection of health of the patient - a medical employee, endowed under Article 70 of the Fundamentals with the status of the doctor in charge, should obviously have a fairly wide range of discretionary powers. Shall the opportunity to act in a certain way based on one’s discretion and depending on the specific situation with the patient\'s state of health be expressly established in the law, this would contribute to the best implementation of the constitutional right to health and medical care and allow a medical employee to operate outside the instructions of his employer (medical entity) in certain situations if there is a need in urgent decisions for the purposes of saving the patient\'s life and or of his recovery.