Medicne pravo
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Published By Danylo Halytskyi Lviv National Medical University

2518-7724, 2072-084x

Medicne pravo ◽  
2021 ◽  
pp. 86-94
Author(s):  
R. B. Hobor

In spite of all the short-comings, the level of protection of rights and capabilities of people with disabilities has become a good indicator of nation’s development, and such a trend is nothing but hopeful. At the same time, one can hardly imagine that this high attitude would be attainable without the influence of left liberal ideologies, that among omnibus achievements granted the shift from medical to social disabilities model.This situation cannot stand but to resemble in a certain state of rights and capabilities exercise, and even the availability of access to the key resources is impossible to bring to the point of marginalization of the mental and physical health problems. As the analyzed material shows, left liberal ideologists,being responsible for shaping the current International Law on Persons with Disabilities, finally succeeded in promoting their principle ideas in the nation case-law. The right to water, lay down on the ship’s practice, as you will look lower, you can use the clever illustration of that relief flow, as the national judiciary can fix the development of the rights and capabilities of individuals from the same basis.The article further develops the idea, that national courts sometimes tend to use realistic approach (as invented by R. Pound, J. Llewellyn, O.W. Holmes) for the sake of implementing the social model of disability. It has been concluded that legal realism is a transmitter for left liberal values in the modern western societies.


Medicne pravo ◽  
2021 ◽  
pp. 47-56
Author(s):  
O. M. Myronets
Keyword(s):  

The paper investigates intersexes’ and humans with integrated implants rights protection issues and prospects in modern conditions. Author’s theoretical vision of intersexes and humans with integrated implants understanding and their rights protection was represented. Main issues concerning the mentioned categories of people effective rights protection have been defined. Prospective directions in relation to intersexes’ and humans with integrated implants legal possibili- ties regulation and defence in modern conditions have been outlined.


Medicne pravo ◽  
2021 ◽  
pp. 57-70
Author(s):  
G. A. Myronova

The article examines the legal nature of human rights in the field of health care. It has been substantiated that certain personal inalienable rights of an adult able-bodied patient are derived from the constitutional absolute human rights. These include the right to consent to medical intervention, the right to refuse medical intervention and the right to receive medical information about oneself. The status of law as an absolute constitutional presupposes certain objective differences in the exercise of this right by a person and in the mechanism of intervention of the state and other participants in relations in its exercise. Therefore, the enshrinement of constitutional human rights in special legislation should pursue the goal of providing additional protection of these rights and additional mechanisms for their implementation. In particular, the inclusion of constitutional human rights in civil law should provide additional legal safeguards for respect for the dignity and inviolability of the person in civil relations and additional civil remedies for the exercise of human autonomy in the field of medicine. The author proposes some civil remedies for the patient to exercise their absolute rights.


Medicne pravo ◽  
2021 ◽  
pp. 9-17
Author(s):  
N. V. Kniazevych

The article is devoted to historical and legal analysis of the health care workers’ legal status development. The paper analyses the beginning of the establishment of the first rules of behavior and professional responsibilities of medical workers in Ukraine, as well as regulations governing the legal status of medical workers in different years in Ukraine. It has been emphasized on the importance of research in the context of the modern health sector reforms for the formation of its directions of implementation. The administrative and legal status of a medical worker makes it possible to determine their place and role in public administration and other public relations. The rights and responsibilities of health care workers are of great scientific and practical importance, especially in view of the ongoing health care reform processes in the country. In view of this, it is important to study the peculiarities of the formation of certain rights and responsibilities of medical workers, which constitute their current legal status, over a significant period of the Ukrainian history.


Medicne pravo ◽  
2021 ◽  
pp. 71-79
Author(s):  
V. M. Pashkov

The statutory basis of Ukraine on the treatment of strains of most dangerous microorganisms has been analyzed, and the terminology important for further understanding of the issue has been clarified. The aim of the paper is to study the state of legal regulation in Ukraine of relations in the field of treatment of strains of especially dangerous microorganisms, to pro- vide analysis of the current legislation of Ukraine in this area, as well as the practice of its application. Theoretical bases of legal support of legitimation of activity in this sphere, including that for the purpose of protection of biological safety have been established. The necessity of legal regulation of participants of relations concerning treatment of strains of especially dangerous microorganisms activity has been substantiated. The current state of legal regulation of relations in the field of strain management requires, given the intersectoral nature of the isssue, consideration of the creation of a single intersectoral authority for the supervision of hazardous biological objects. Such a authority may not only be a licensing authority, but also responsible for the introduction of a register of owners of hazardous biological objects that are not economic entities (for example, individuals – owners of collections of such biological objects).


Medicne pravo ◽  
2021 ◽  
pp. 80-85
Author(s):  
K. Y. Tereshko

The concept of defamation and the composition of defamation tort are analyzed. Foreign experience and judicial practice of defamation application are given. The need to uphold the principle of ensuring a balance between the constitutional right to freedom of thought and speech, the right to free expression of one’s views and beliefs, on the one hand, and the right to respect for human dignity, constitutional guarantees of non-interference in private and family life, judicial protection of the right to rebuttal inaccurate personal information, on the other. The defamation balance between medical collegiality and critical assessment of doctors' activity is formulated. A «defamatory balance» has been formed between the collegiality of doctors and the critical evaluation of doctors' activities, which will be achieved by the preemptive right to freedom of expression to protect the lives and health of patients, actions in the public interest in the case law of the European Court of Human Rights.


Medicne pravo ◽  
2021 ◽  
pp. 18-46
Author(s):  
A. A. Lytvynenko

Litigation concerning the violation of patient’s rights, which are associated with informed consent, confidentiality, right to information and medical records, as well as occasionally with end-of-life decision- making are quite frequent in common law and civil law jurisdictions, and has lasted for over a century in issues concerning malpractice, or unauthorized medical interventions and breaches of medical confidentiality. However, what could we say about medical law-related litigation in Japan? Technically, the legal system of Japan is a civil law one, but is practically post-traditional, which is reflected in extreme paternalism in healthcare and patient-physician relationships, which could be observed before the recent decades and which still has some impact on the modern Japanese medical law, despite the number of medical law-related litigation is becoming more frequent nowadays. The Japanese legislation does not have a specific “patient’s rights law” in contrast to European states, and most of the principles relating to medical malpractice derive from case law – the practice of the Supreme Court and of the lower courts. Each of the decisions strongly depends upon the factual circumstances, and the post-traditional features of the legal system may have some impact on it.


Medicne pravo ◽  
2021 ◽  
pp. 19-27
Author(s):  
Oksana Yuriyivna Harasymiv

The article analyzes pros and cons for the ratification of the Con- vention for the protection of human rights and dignity of human being with regard to the application of biology and medicine by Ukraine. It outlines that the ratification of this Convention will further expand the human rights and freedoms safeguards in the field of biomedical trials. The possibility of appealing to the European Court of Human Rights for advisory opinions on the basis of the Convention for the protection of human rights and dignity of human being with regard to the application of biology and medicine has been highlighted. It has been emphasized that such ratification can be possible for Ukraine only in case of bringing the national legislation into line with the requirements of said Convention.


Medicne pravo ◽  
2021 ◽  
pp. 52-68
Author(s):  
A. A. Lytvynenko

The advance of medical technologies since the mid-20th century has enabled to prolong a patient’s life in critical situations, though not all patients would tolerate to undergo such treatment. Therefore, the legal question encompass- ing the problem was to resolve the issue of a patient’s refusal of life-sustaining treatment. Since most of such patients are usually irresponsive and lack legal capacity, a solution featuring a legal document akin to a testament or trust has been proposed in the early 70s. Upon the gist of this document, a patient having full legal capacity would anticipate his/her further incapacitation and command to conduct or refuse medical treatment. His/her will, which is reflected in a «living will» has to be notarized, and upon the jurisprudence of various countries worldwide, though not omnipresently, affirmed by a court in order to avoid fraud and satisfaction of the illegitimate interests of third parties. Despite being introduced in the 1970s, living wills are still seldomly drafted by patients. In such case, when the patient lacking a living will falls incapaci- tated, his/her legal representatives and/or the healthcare institution commence civil proceedings so as to define the future fate of the patient using the concept of a substituted judgment, constructed by the courts upon the evidence of the past beliefs and habits of the said person, which requires extensive witness testimony. Resolving the presumed will of the patient is a very complicated issue, and in terms of lack of evidence, courts are not likely to authorize ter- minating the patient’s treatment, acting with a «negative» presumption to rule so. However, courts still may rule that futile treatment is not of the best interests of the patient (which is frequent in respect with minor patients who were born with major congenital ailments). Therefore, a living will, if legitimately drafted, is considered as a firm evidence of the will of the incapacitated person to continue, or to terminate treatment. The «living will» is an entirely voluntary-drafted document and is void upon the fact of undue influence, like an ordinary testament. The intro- duction of such document into the national legislation requires adopting vari- ous legislative acts, and such document is not legally valid unless provided by appropriate legislation. A living will reflects the will of the patient, not his/her legal representatives, and may not be drafted by them. In rare exemptions, the patient, unable of writing, may dictate the will’s content to a duly authorized person (e.g., a guardianship judge, like in Italy). Thus, the approval of the living will execution is the compliance with the will of the patient concerned: his/her guardian expresses his/her will, and the court affirms it. The control- ling function of the courts is hereby apparent. All in all, the «living will» is a considerable institute of private law, enacted in various countries worldwide and has its legal prospects in Ukraine, as well.


Medicne pravo ◽  
2021 ◽  
pp. 28-40
Author(s):  
Dean M. Harris

This article addresses the privacy of medical and health data in the US. It analyzes the scope and requirements of federal and state laws in the US, and it discusses the weaknesses in the US protection of medical privacy. Then, this article explains how the weak US system of privacy protection was unable to handle many important privacy issues in the COVID-19 pandemic. Finally, the article concludes with some recommendations for action.


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