Traditional features of the labour law status of a medical employee

Paragraph 1.3. indicated that virtually all of the features of the labour law status of a medical employee are determined by the specifics of his or her professional activity. The authors, who considered these features,^[465] have not carried out the analysis of the constitutional importance of the features (or specifics of medical labour) that they offered to differentiate the legal regulation of the relations in which medical employee take Article However, this is required by the legal position of the Constitutional Court of the Russian Federation, referred to above in Paragraph 1.3, since it is a condition that the relevant differentiation of legal regulation does not conflict with the requirements of the RF Constitution.

In addition, these authors did not mention some other important grounds (or specifics of medical labour) for the differentiation of the legal regulation that are of constitutional significance, and they practically do not show the specific relationship between the features of medical labour and the characteristics of a labour law status of a medical employee.

Let us try to fill this gap in the study of the mentioned issues. This appears to allow, in addition to achieving these goals based on selected characteristics of medical labour, also to relieve the features of the labour law status of a medical employee that correspond to them.

To begin with, we note that not all of the features of medical labour is a product of modern development. Some of them are traditional, that is, they were typical for medicine at all times and have traditionally helped to establish the nature, the main features and the functions of medical profession. Since the traditional features of medical labour allow to reveal the specific features of the labour law status a medical employee, that correspond to them, then it would be fair to call such features of the labour law status as the traditional ones.

At the outset of researching the constitutional significance of special features of medical labour, it should first be noted that the purpose of medical assistance - and that is what medical employees most do - is protection of health, which is one of the highest constitutional values, as reflected in the legal positions of the Constitutional Court the Russian Federation and in the current legislation.

Thus, in accordance with the legal position of the Constitutional Court of the Russian Federation, human health, which is protected by medical assistance, is an inalienable good of highest value, without which all the other goods and values lose their importance. ^[466] In this regard, the Constitutional Court of the Russian Federation also noted that proclaiming the right to health and medical assistance as one of the basic constitutional rights, the state has a duty to carry out a set of measures to preserve and promote public health and to do that, in particular, through the development of state, municipal and private systems of protection of public health, and by establishing legal guarantees for everyone to obtain the medical and social care that is necessary.

According to the legal definition contained in § 3 of Article 2 of the Fundamentals, medical assistance is a complex of measures aimed at maintaining and (or) restoring health and including provision of medical services.

In turn, the recognition of the fundamental role of the protection of health of citizens as an essential condition of society, and the responsibility of the duty of the state to preserve and strengthen public health determines the contents of the entire legal regulation of the relations in one way or another connected with the implementation of this constitutional right based primarily on the rules governing the provision of medical assistance to the citizens.^[467].

As mentioned above, the person actually providing medical care, in most cases in our country, is a medical employee.

One more feature of the medical activity is that it is carried out in the framework of relations, which are characterized by the de facto inequality of participants. The second party in this relationship is a patient, and he does not have special knowledge in the field of protection of health, in contrast to the medical employee. The work of medical employees is connected with the need to communicate with the patients, who are mostly sick people showing objectively (or subjectively) conditioned atypical reactions to the world around them and who are in the circumstances, where their ability to exercise many of their constitutional rights and freedoms is legally and (or) factually impaired. For example, the weakened state of health may require medical intervention with nursing care, which in some cases sets a significant limitation of the constitutional autonomy of an individual, or it may require permanent presence at a medical institution, which leads to a restriction of the constitutional freedom of movement, etc. Thus, the nature of such inequalities is associated, firstly, with the patient’s lack of special knowledge in the field of medicine, secondly, with potential limitation of the patient’s autonomy by a medical employee while providing medical assistance to him and, thirdly, with the fact that patients approaching medical employees for medical assistance in most cases do have disease that cause atypical reactions as to the outside world and limit (legally and (or) factually) their ability to exercise many of their constitutional rights and freedoms.

The existence and the legal value of such an inequality is in a sense confirmed by the legal position of the RF Constitutional Court, according to which a citizen (patient) is considered to be a weaker party in the legal relationship of provision of medical assistance (medical services) to the patient.^[469]

This inequality shows that there are prerequisites for the professional power that a medical employee may gain over his patient, however, this power, as mentioned earlier, has a heterogeneous, mixed legal nature related to the nature of medical profession.

The legislator in fact also recognizes the presence of such a component in the power of a medical employee over the patient. This, in particular, is pointed out in the binding rules of law concerning the right of medical employees in certain cases to provide medical assistance to a patient without his or her consent (§ 9 of Article 20 of the Fundamentals).

Another manifestation of this component of the professional power of a medical employee is that he is actually burdened by a legal obligation to oversee his patients in view of their possible atypical reactions to the outside world. Medical entity is to set its own internal rules that would apply to its patients. Compliance with these rules as well as with the prescriptions of a doctor in charge should be supervised both by the doctor himself and by his colleagues, i.e. other medical employees. They may in certain cases and in a certain order hold patients to account for the negative consequences of non-compliance with these rules and prescriptions (§ 3 of Article 27, § 3 of Article 70 of the Fundamentals). Proper performance by medical employees of their duties to supervise the patients having the most atypical reactions (for example, minors and incapacitated) is secured by the civil liability that medical organizations have to bear for the damage caused by such patients to third parties and their property).

The statutory duties of the patient, such as the obligation to take medical examinations, tests and receive medical treatment, as well as to comply with the regime of medical treatment, including the one established for the period of temporary incapacity, when the treatment is carried out in a medical institution, and with the rules of conduct in the medical institution (Article 27 of the Fundamentals), are all secured with the possibility of adverse legal consequences for the patient in the event of non-compliance. In particular, such consequences include the doctor’s refusal to treat the patient (p. 3 of Article 70 of the

Fundamentals), suspension at work (Article 76 of the Labour Code), reduction of the amount of the benefit for temporary incapacity (section 1 of paragraph 1 of Article 8 of Federal law dated 29 December 2006 No. 255-FZ "On mandatory social insurance for the cases of temporary disability and maternity".^[470]

Secondly, by virtue of the constitutional principle of certainty of legal regulation (Article 15 of the Constitution of the Russian Federation), the fact that there is a public component in the professional power of a medical employee means that he or she is subject to higher requirements and burdened with additional duties in order to achieve a reasonable balance of interests between the parties in the "medical employee - patient" relationship. This constitutional principle is also the basis for the second component in the professional power of a medical employee - a non-public one, based on the voluntary submission of the patient to his or her doctor, since the latter has professional knowledge in the field of medicine.

Indeed there is often a situation when a patient entrusts the medical employee, based on the trust in him, one of its highest values, i.e. his own health while he is actually weakened and demoralized by his illness. From this perspective, a medical employee, in principle, must be worthy of that trust and have the qualities that are able to inspire such confidence in the patient.^[471]

According to the legal position of the European Court of Human Rights (hereinafter - ECHR), preserving confidence in the medical profession and health care in general is fundamentally important in the "medical employee - patient" relationship.^[472] As a general rule, the patient is free to decide whether to seek medical assistance from a medical employee or to elect not to do that, as well as to choose a medical organization (Article 21 of the Fundamentals), and therefore it is the patient\'s confidence in the medical employee of his choice that should be a condition for the exercise by the medical employee of the professional power in respect of the patient.

Another safeguard against excessive (disproportionate) use of the professional power by a medical employee as well as against concomitant violations of constitutional rights and freedoms of the patient is that the medical employee is under an obligation to comply with a special set of patient\'s rights under the law (§ 1 of Article 4, Article 5, p. 5, Article 19 of the Fundamentals), and to act solely in the patient’s interests (Article 71 of the Fundamentals).

From this perspective, it is no less important that the medical employee must possess high moral and ethical qualities. The increased level of care and diligence, which is a consequence of the said qualities, allows medical employees, in particular, to reduce the risk of harm as to the patient\'s health and provide him with medical care of good quality. In fact, the same is pointed out by one of the world’s most respected expert organizations in the field of public health, i.e. the Institute of Medicine of the US National Academy of Sciences that emphasized that the main factor in increasing the patient’s safety is the internal motivation of those who provide assistance in the area health, which is based upon the professional ethics, behavior patterns and expectations.^[473]

At the same time, these moral and ethical qualities of medical employees and their duty to obey certain moral and ethical standards do not only constitute a guarantee of safety and quality of care, but also serve as a significant prerequisite for the trust of the patient towards the professional - the trust which is impossible and (or) has no real basis in the absence of those guarantees safety and quality. This necessity of certain level of moral and ethical qualities of a doctor has been known at least since the time of Hippocrates, that those who became a doctor (entering into medical corporation), had a duty to behave properly: not to commit any reprehensible actions, not to drop their dignity, to observe the principles of "do no harm" and "help", and, most importantly, always act in the interests of the patient.

Russian legislator does support this long-lasting tradition. It imposes on the persons who have completed the program of medical education, the obligation to take an oath of a doctor, the content of which is established by law, before obtaining a document on education and qualifications (Article 71 of the Fundamentals). The Constitutional Court of the Russian Federation concurs as well. In accordance with its legal position as to the interpretation and application of the rules governing the provision of medical care, one must take into account such factors as the nature of medical profession, duty of medical care as well as moral and ethical standards (that is, in fact, the contents of the doctor oath) defining the duties that a doctor owes to his or her patients.^{[474] [475] The need to establish the boundaries in the exercise of a medical employee’s professional power over the patient has been reflected in the doctor\'s oath duty of a medical employee to treat the patient with attention and care (Article 1, Article 71 of the Fundamentals).}

Such a duty appears to be close in its nature to the principle of "self-limitation of power", which is well-known in public law.

The RF Supreme Court has also noted on the importance of moral and ethical standards for medical practice.^[476] It noted that medical employees shall carry out their practice in accordance with the Russian legislation and abide the principles of medical ethics and deontology. Moreover, the Court expressly pointed out that the principles of ethics and deontology constitute the rules of professional activity, which, inter alia, contain the duty to provide medical care in accordance with one’s qualifications, job descriptions, official duties and function as well as to observe medical confidentiality etc.

It should be noted that the duty to provide medical care in accordance with one’s qualifications, job descriptions, official duties and functions and to observe medical confidentiality are provided not only by the medical ethics rules set forth in the doctors’s oath (Section 1, Article 71 of the Fundamentals), as well as by certain rules that are not included in this set of moral and ethical standards (Article 73 of the Fundamentals). Consequently, it appears that the above position of the Supreme Court shows that the Court actually considers the observance of moral and ethical standards (the principles of ethics and deontology) as a special statutory guarantee of performance of legal duties imposed on a medical employee.

This approach largely corresponds to the above legal position of the Constitutional Court, according to which it is necessary to take into consideration the moral and ethical standards while interpreting and applying the rules governing the provision of medical care. The same is in sense emphasized by V.I. Akopov and Ye.N. Maslov, the scholars who have researched the labour of a medical employee. At the same time, they provide an extensive list of different qualities and skills of moral, ethical and organizational character that specify the provisions of the doctor’s oath and which a doctor or other medical employee should possess, in their opinion, in order to perform their professional duties properly.^[477]

In her turn, K.Yu. Boguslavskaya also pointed that it is possible to establish additional (moral) requirements as to certain categories of employees as compared with the general set of duties provided for by the legislator. In her view, a form of existence of and a way to consolidate professional ethics as a set of rules of conduct that define one’s moral approach towards his or her professional duties, may be to strengthen those norms at the legislative level for certain categories of the employees on whom the society imposes higher moral requirements (doctors, judges, law enforcement officials, etc.).^[478]

Another significant feature of the labour of a medical employee is that the medical employee normally operates under conditions of considerable uncertainty. This uncertainty is due to the fact that each human individual has his or her own characteristics of body and health. Such an uncertainty requires a creative approach as to medical assistance, which creates a higher risk of harm to the patient\'s health and an increased emotional stress a person providing medical assistance.

In addition to this feature, there is another important feature of labour of a medical employee: operating closely with certain categories of patients, he is working in higher-risk conditions of contracting infectious diseases.

All of the above allow us to agree with G.V. Khnykin, who believes that the peculiarities of the labour of medical employees include such well-known facts of labour law as harmful working conditions, mental stress at work and the risk of contracting an infectious disease,^[479], while Ye.V. Afonina rightly complements the list of these features with indication of the creative nature of this work, physical exertion (in certain cases), the need for professional knowledge and a high degree of responsibility^[480]

Based on the analysis carried out above we can conclude that medical employees have, in particular, the following important constitutionally valuable features (these features can be defined as the basic classification of grounds for the differentiation of legal regulation of medical employees), which are characterized by the presence of:

1) special purpose of labour, consisting in the maintenance of and (or) restoring health (or health protection), which defines, inter alia, the public importance of such labour,

2) actual inequality in the relationship between medical employees and patients, creating the preconditions for the emergence of the professional power over the patient and implying the need for, inter alia, confidence in the medical profession and in the medical profession as a whole on the basis of their compliance with the set moral and ethical standards,

3) uncertainty in the environment and prerequisites of medical labour, which causes the creative and risky nature of medical labour, accompanied by increased mental and intellectual tension,

4) hazardous working conditions.

This list of objective and constitutionally significant features of medical labour is very much general. There are other features of this kind of labour, which is actually only concretize those provided in this particular list.^[481]

We would now note that the list of features of labour contained in the basic classification of grounds for differentiation of legal regulation of work of medical labour, can be laid in the foundation for the construction of the basic structure of its special labour law status. This structure can be determined by the groups of certain specific elements of this status. Such groups include the following elements.

1. Elements of a special labour law status of medical employee, the existence of which is due to the health’s highest value, as well as the corresponding to the public importance of labour of medical employees. In their turn, they include:

а) enhanced legal duties, the examples of which are as follows:

duty to provide immediate emergency care, at any time and in any circumstances, including the conditions threatening a medical employee’s own life and health (Article 35 and Article 71 of the Fundamentals);

duty to acquire the skills needed to provide medical care, as well as to improve one’s skills and knowledge on permanent basis (Article 69, section 3 paragraph 1 Article 73, Article 100 of the Fundamentals).

б) corresponding prohibitions to include, inter alia, the following ones:

prohibition to organize strikes (Article 413 of the RF Labour Code);

prohibition to participate in some cases in providing medical assistance due to inadequate working capacity (Articles 69, 73, 76, 213 of the RF Labour Code, paragraph 3 Article 24, Article 46, section 2 paragraph 1 Article 72 of the Fundamentals) This feature has already been indicated in the literature, in particular, by N.A. Sokolova.^[482]

c) special rights and powers granted to medical employees in order to achieve public goals and associated with restriction of patient’s rights. These include, for example, include:

right to disclose the data protected with medical confidentiality in certain cases (paragraph 4 Article 13 of the Fundamentals);

right to act beyond the employer\'s instructions when taking decisions in the course of psychiatric care (Article 21 of the Law of the Russian Federation dated 02 July1992 No. 3185-1 "On psychiatric care and guarantees of human rights in the course thereof"), and this element of the labour law status in relation to a psychiatrist is correctly pointed out by G.M. Usov and M. Yu. Fedorov ^[483];

right to provide medical care without the consent of an individual (paragraph 9 of Article 20 of the Fundamentals.);

right to the peaceful and free-of-charge use of the means of communication or transport vehicles in order to bring a patient to the nearest medical institution in the cases of threaten to his her life (section 8, Article 10 of the Fundamentals).

2. Elements of the special labour law status of medical employee that exist due to the de facto inequality in the relationship between a medical employee and a patient, as well as due to the professional power over the patient and the corresponding need to establish and preserve a relationship of trust with the patient by complying with the moral and ethical standards. These elements include:

a) enhanced legal duties, the examples of which are:

duty to comply with ethical and moral standards, as well as to respect and and treat patients humanely (section 1 paragraph 1 Article 6, Article 71 of the Fundamentals, Code of Ethics for Russian doctors^[484], Code of Ethics for Nurses^[485]);

duty to comply with medical confidentiality regime, which has no time limits, that is, does not cease to have effect even after the death of the patient, from whom the medical employee had obtained the confidential information (Article 13, paragraph 5 of Article 59 of the Fundamentals);

duty to comply with the set of patients\' rights provided by law (section 1 of Article 4, Article 5, paragraph 5 of Article 19 of the Fundamentals);

duty of the doctor in charge to inform the patient as to whether it is possible to obtain free of charge the medicine, or the medical device, or the dietary therapy or the breast milk substitutes that he recommended (paragraph 4 of Article 70 of the Fundamentals);

duty to inform the patient about his state of health in a delicate manner, if there is an unfavorable prognosis for the decease (paragraph 3 of Article 22 of the Fundamentals..);

the duty to supervise patients (paragraph 3 of Article 27 and paragraph 3 of Article 70 of the Fundamentals, and paragraph 3 of Article 1073 and paragraph 1 of Article 1076 of the RF Civil Code).

b) corresponding prohibitions that include, inter alia:

prohibition to carry out euthanasia (Article 45 and 71 of the Fundamentals.);

prohibition to inform the patient as to his state of health against his will (paragraph 3 of Article 22 of the Fundamentals).

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

right of a medical employee (doctor, medical assistant, dentist, anaesthetist, neurologist, etc.) to determine the legal status of the patient (to establish the diagnosis - paragraph 5 of Article 70 of the Fundamentals, to provide work incapacity sheets - paragraph 2 of Article 59 of the Fundamentals, to diagnose brain death, i.e. the moment of death of an individual - paragraph 3 of Article 66 of the Fundamentals, to decide whether the patient is able to perform certain types of work, as well as to diagnose occupational disease - Article 63 of the Fundamentals);

right of a doctor in charge to refuse treating and monitoring the patient under paragraph 3 of Article 70 of the Fundamentals;

right of the head of a medical institution to assign specific functions of a doctor in charge to a medical assistant or a nurse (paragraph 7 of Article 70);

the right to provide medical care to an individual without his or her consent (paragraph 9 of Article 20 of the Fundamentals).

3. Elements of the special labour law status of a medical employee that exist due to the creative nature of this kind of labour and that correspond to an increased risk of harm to the patient\'s health, as well as increased mental and intellectual tension.

4. Elements of a special labour law status of a medical employee that are produced by harmful and hazardous working conditions.

Mainly the contents of the third and fourth groups of elements of special labour law status of a medical employee constitute the rights that emerged due to the obligation of the state to provide enhanced protection to medical employees, including special social protection (it should be noted that this increased protection for the labour of medical employees is due to its public importance). The prerequisites for the emergence of these rights are the supplementary rules contained in the Labour Code and in the other laws adopted pursuant thereto. As an example of these norms, medical employees are entitled to additional vacations and to reduced working hours (Article 350 of the Labour Code, Resolution of the Government of the Russian Federation dated 14 February 2003 No. 101 "On working hours of medical employees, depending on their position and (or) their specialty"^[486] etc.).

Thus, the elements of the special labour law status of the third and the fourth group should include:

a) the rights corresponding to the state’s obligation to provide an increased protection to medical employees:

right to increased remuneration, i.e. appropriate payment for the work made (section 4), 5) of paragraph 1 of Article 72 of the Fundamentals);

right to compensation for harmful, dangerous and difficult working conditions (section 13), paragraph 2 of Article 79 of the Fundamentals , Article 147 of the Labour Code);

the right to limitation of working hours (Article 92, Article 350 of the Labour Code);

right to extra day-offs and vacations (Article 117, Article 350 of the Labour Code);

right to use special means of protection for the purpose of labour safety (section 1), paragraph 1 of Article 72, section 13), paragraph 1 of Article 79 of the Fundamentals, Article 221 of the Labour Code).

б) corresponding prohibitions to include, inter alia: prohibition to organize strikes (Article 413 of the Labour Code.); prohibition to suspend the work in the event of delays in payment of salary for a period exceeding 15 days (Article 142 of the Labour Code). c) enhanced legal duties, the examples of which are:

duty to seek assistance and advice from colleagues, if the patient\'s interests require to do so (Article 71 of the Fundamentals.);

duty to convene the council of doctors, if the patient\'s interests require to do so (paragraph 3 of Article 48, paragraph 2 of Article 70 of the Fundamentals);

duty to provide medical care in accordance with one’s qualifications, job descriptions, official duties and functions, as well as the procedures and standards of care (Articles 37 and 73 of the Fundamentals);

obligation to comply with internal rules of labour safety, to use correctly the means of individual and collective protection, to undergo mandatory medical examinations (Article Article 213, 214 of the Labour Code, Article 24 of the Fundamentals).

As to the special liability (including disciplinary liability) that medical employees may bear, its prerequisites in all four of the above cases include a complex of special duties and powers in the field of medical labour. The basis for liability is a failure to exercise these duties and power or to comply with these prohibitions. It should be noted that some offenses in the sphere of medical labour may give rise to certain cases of administrative or criminal liability. Such violations can be also the basis for disciplinary liability. A special ground in this case may be the commission of acts referred to in section “в” of section 6, paragraph 1 of Article 81 of the Labour Code.

The rights, duties and responsibilities of medical employees as the elements of their special labour law status, have already been discussed in depth in paragraph 2.2. of this paper.

Thus, it may be noted as a conclusion of this paragraph that the traditional features of medical activity have been 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. The norms on the liability of medical employees as established by the legislator are applied in case of non-compliance with these specific duties. Inasmuch as these rights, duties and liabilities for noncompliance with the duties are all based on the features of traditional medical practice, now therefore they are the traditional elements of the labour law status of medical employees (traditional features of labour law status). Taken together, these features of the labour law status of medical employees does not only give it a specificity as compared with the statuses of other professional categories of workers, but they also ensure the quality of medical care and therefore they help to achive at least one of the two constitutionally significant goals: protection of health and safety of labour.

3.2.