Contents of the concept of legal regulation of relations in the provision of paid medical services

Korobko Kseniya Igorevna PhD in Law Head of the Department of Civil Law Disciplines, Syktyvkar State University named after Pitirim Sorokin Russia, Syktyvkar, Komi Republic, 25 Kommunisticheskaya str. treshkina@mail.ru Other publications by this author

Decree of the President of the Russian Federation No. 254 of 06.06.2019 approved the Strategy for the Development of Healthcare in the Russian Federation for the period up to 2025, according to which the objectives of the development of healthcare in the Russian Federation are to increase the population, life expectancy, healthy life expectancy, reduce mortality and disability of the population, respect for the rights of citizens in the field of health protection and ensuring these rights are guaranteed by the state. The main tasks of healthcare in the Russian Federation are such as: creating conditions for improving the availability and quality of medical care; development, implementation and application of new medical technologies and medicines; ensuring biological safety and others.

The designated goals are being implemented in the context of an ever-increasing volume of paid medical services. If we turn to statistical data, we will find that in 2005 the volume of paid medical services in the total volume of paid services provided to citizens was 4.8%, then in 2022 it was 9.4% for a total amount of 1218,853.8 million rubles ^[1]. The increase in the volume of paid medical services occurs against the background of a lag in the theoretical understanding of the content of relations for the provision of paid medical services and their legal regulation from emerging challenges, which, in turn, generates legal uncertainty and does not allow for the full implementation of measures to achieve the strategic goals of healthcare development in the Russian Federation.

In connection with the above, it seems necessary to form and substantiate a holistic scientific concept of legal regulation of relations for the provision of paid medical services, ensuring the preservation and strengthening of human health, prevention and treatment of diseases on the basis of coordination of multidirectional legal goals of participants in these relations.

The concept developed by the author includes a theoretical basis, a conceptual apparatus, a system of legal regulators, a mechanism for legal regulation of relations for the provision of paid medical services, proposals for improving legal regulation in the aspect of the need to coordinate the multidirectional legal goals of the participants in the studied relations.

The theoretical basis of the concept is based on a broad understanding of the content of the category "medical activity". It is proposed to understand such activities as activities in the field of conventional and non-conventional medicine. Turning to the content of these concepts, we note that conventional medicine is understood as medical activity included in the national health system, carried out within the framework of a unified state policy, having systemic legal regulation, implemented with the aim of preserving and strengthening people's health, preventing and treating diseases. Unconventional medicine should be understood as medical activities that are not part of the national health system, carried out in the absence of a unified state policy and systemic legal regulation, the purpose of which is to preserve and strengthen people's health, prevent and treat diseases.

One of the criteria for a qualitative scientific result is its novelty, which can be achieved and ensured, including through the use of previously unused methodological approaches and methods that make up their content in the process of obtaining it, which must meet both the current state of development of society as a whole and the sphere of public relations under consideration. Let us turn to the terminological apparatus: the scientific and methodological approach is "the fundamental instrumental and cognitive orientation of research, the point of view from which the object of study is considered; the concept or principle guiding the overall research strategy, determining the starting position from which the research begins and is conducted" ^[2]. To develop the concept of relations for the provision of paid medical services, a set of scientific and methodological approaches was applied: categorical, conceptual, instrumental, systemic, axiological.

Being a type of entrepreneurial activity, the content of which is an independent, professional activity of medical organizations and citizens engaged in entrepreneurial activity without the formation of a legal entity or state registration as an individual entrepreneur, having a permit to carry out medical activities, aimed at systematically obtaining profits from the provision of medical services at the expense of personal funds of citizens, funds of legal entities persons and other means with the use of contractual means of legal regulation to solve social problems in the field of public health protection, paid medical services have essential differentiating features. As such signs, allowing to distinguish paid medical services both from medical services provided at the expense of the federal budget, budgets of the subjects of the Russian Federation, local budgets, compulsory medical insurance funds, and from civil law services similar in content, the following are: their focus on preserving and strengthening people's health, prevention and treatment of diseases; both individual and social significance; special subject composition of participants in these relations; personal funds of citizens, funds of legal entities and other means act as a source of payment; there is an alternative opportunity to receive a significant amount of paid medical services in a guaranteed volume without charging in accordance with the program of state guarantees of free provision of medical care to citizens; services have an individual, personalized character; are provided in accordance with the contract.

Regulation of relations for the provision of paid medical services is carried out through an interconnected, mutually influencing set of legal regulators. Chelyshev M.Yu. proposed the following disclosure of the content of the concept of "regulator in law (legal regulator)": of different levels and different legal force "legal regulations to which the relevant subjects must obey" ^[3]. The legal regulators of relations for the provision of paid medical services are: regulatory legal acts, legal positions of higher courts and judicial practice, customs, contracts, non-normative acts of executive authorities, acts of self-regulating organizations, documents of the professional community. The system of legal acts in this area has a complex structure and includes the following levels: constitutional; international law; federal; subjects of the Russian Federation; municipal; local.  At the federal level, there is no special regulatory legal act through which systemic legal regulation of relations in the field of non-conventional medicine would be carried out.

         The central place in the concept is occupied by the mechanism of legal regulation of relations for the provision of paid medical services. Under the mechanism of legal regulation of relations for the provision of paid medical services, it is proposed to understand an integral, structured, organic system of sufficient private and public legal means of legal regulation used to streamline public relations for the provision of paid medical services, manage them and ensure their further development. As noted in the doctrine, an adequate definition of a category makes it possible to distinguish it from "a number of similar, but not identical phenomena", as well as "the presence of a system of basic categories and derived concepts that most fully reflect the essence of the phenomenon under consideration serves as a reliable foundation for the further formation of a coherent scientific theory" ^[4].

           As mentioned earlier, one of the methodological approaches used in this study will be instrumental. Filippova S.Yu. notes that the core of this scientific approach consists of three categories: legal goal, legal means and legal activity ^[5], that is, when using an instrumental methodological approach, "it is necessary to identify the legal goal, the possibilities offered by law to achieve it and to study the real human activity in which these possibilities are embodied" ^[6].

Referring to the system of legal goals in the mechanism of legal regulation of relations for the provision of paid medical services, it is possible to distinguish its following structural elements: goals in the rule of law, legal goals of subjects of legal realization activity, the ultimate legal goal. The system of legal goals determines the elemental composition and content of the system of legal means used in the legal activities of the subjects of relations for the provision of paid medical services.

  The category of "legal means" is paired with the category of "legal purpose"; legal means should be aimed at achieving legal goals. Let us agree with the opinion of K.V. Shundikov, who understands by "legal (legal) means" a set of legal institutions (tools) and forms of legal implementation practice taken in unity, with the help of which the interests of legal subjects are satisfied and the achievement of socially useful goals is ensured" ^[7]. The mechanism of legal regulation of relations for the provision of paid medical services includes a complex of interrelated and mutually reinforcing private and public legal means. The system of public legal means includes legal means of allowing subjects to carry out entrepreneurial activities in the provision of paid medical services; legal means of ensuring the quality and safety of paid medical services; legal means of ensuring the availability of paid medical services. The system of private legal means includes civil legal personality, proprietary legal means, contractual legal means, means of protection (including protection).

As E.P. Gubin notes, despite the generally permissive type of legal regulation of the economy and entrepreneurship and the need to ensure the freedom of entrepreneurs' activities with permits, such means of legal regulation as positive duties and prohibitions have been widely used, through which relations between "business entities and the state in the person of its bodies are regulated when they perform the functions of state regulation" ^[8]. It seems that the scope of the state regulatory impact on the relations for the provision of paid medical services should take into account the specifics in specific sectors of these relations. The high efficiency of direct state regulation of conventional medicine has been revealed. It seems that the optimal way to organize the healthcare system in the field of unconventional medicine is co-regulation. Innovative development of the sphere of public health protection in relation to individual subjects of the private healthcare system can be ensured by quasi-regulation.

In accordance with paragraph 21 of Article 2 of Federal Law No. 323-FZ of 21.11.2011 "On the basics of protecting the health of citizens in the Russian Federation", the quality of medical care is understood as a set of characteristics reflecting the timeliness of medical care, the correctness of the choice of methods of prevention, diagnosis, treatment and rehabilitation in the provision of medical care, the degree of achievement of the planned result. Thus, based on the legal definition of this concept, the quality of medical care is assessed in several directions. Regarding the assessment of the quality of paid medical services, it is proposed to take it into account only in the process of their provision, in connection with which it is proposed to exclude the mandatory achievement of the planned result from the criteria for assessing the quality of medical care. In order to ensure the availability of paid medical services, it is proposed to develop a unified state policy to establish maximum profitability in the provision of such services for medical organizations of state, municipal and private health systems.

The issue of the subject composition of relations for the provision of paid medical services deserves a separate consideration. Stetsenko S.G. the following groups of subjects of medical legal relations are distinguished in general: 1. providing medical care; 2. receiving medical care; 3. contributing to the provision of medical care (support units) ^[9]. We consider it necessary to unify the subject composition of relations in the field of unconventional medicine, for which it is required at the federal level to consolidate the possibility of providing paid medical services in this area by both individual entrepreneurs and citizens engaged in entrepreneurial activity without state registration as an individual entrepreneur.

It should be noted that the legal goals of the subjects of legal realization activities may conflict, and therefore the issue of studying the limits and limitations of the right to provide paid medical services is being updated. Due to the lack of a systematic approach to the issue of restricting the right to carry out business activities for the provision of paid medical services, it seems necessary to consolidate it at the legislative level by introducing a single legal norm. Such public-law restrictions on the right to carry out entrepreneurial activities for the provision of paid medical services can be grouped on the following grounds: 1. depending on the types of work (services) that make up medical activity; 2. depending on the affiliation of entities providing paid medical services to the state, municipal or private health care system; 3. depending on the category of patients receiving paid medical services; 4. depending on the organizational and legal form of entities providing paid medical services.

In accordance with Part 2 of Article 84 of Federal Law No. 323-FZ dated 21.11.2011 "On the basics of protecting the health of citizens in the Russian Federation", paid medical services are provided in accordance with contracts. The system of contractual legal means of legal regulation of relations for the provision of paid medical services is a group of contracts, which includes a contract for the provision of paid services; a contract for voluntary medical insurance, as well as contractual obligations with tissues, organs and other biological objects of a person. The last group of contracts with special features can be attributed to unnamed contractual obligations in the field of relations for the provision of paid medical services. To ensure proper legal regulation, it is proposed to supplement the Civil Code of the Russian Federation (Part Two) with a new Chapter 39.1. "Contractual obligations with human tissues, organs and other biological objects".

It should be noted that the sphere of relations for the provision of paid medical services is quite conflictual. Exploring the concept and social essence of civil legal relations, Paraskevova A.S. puts forward a provision on two forms of legal communication in civil law and order: "the first form is based on the agreement of subjects, the second – on disagreements, conflict between them," while the author notes that "the legal form of "normal" communication in civil law and order is determined by the contract, and "abnormal", conflict – an offense" ^[10]. Considering the content of the category "legal conflict", V.S. Zherebin gives its following definition: "the substantive confrontation of the needs and interests of its counter-subjects, arising as a result of the confrontation of their lawful and unlawful behavior. He always expresses a socio-legal contradiction, but the latter in its movement and development becomes a legal conflict only under certain conditions, under which there is an extreme form of aggravation of the interaction of lawful and unlawful behavior of his counter-subjects" ^[11].

          Legal conflicts in the sphere of relations for the provision of paid medical services have a vivid specificity: they have a special public significance; they carry a constructive (positive) function; they assume the possibility of collecting a fine for non-compliance with the voluntary satisfaction of consumer requirements in accordance with the Law of the Russian Federation dated 07.02.1992 No. 2300-1 "On Consumer Rights Protection"; they must be resolved in the shortest possible time; for their resolution, in most cases, an expert opinion is required. It seems that the mediation procedure cannot be applied in resolving disputes in the field of relations for the provision of paid medical services due to the presence of public interest in such disputes, as well as the mediator's lack of education in the specialty corresponding to the subject of disputes.

          The presented concept of legal regulation of relations for the provision of paid medical services, developed on a serious methodological basis, has scientific and practical significance and contributes to the preservation and strengthening of human health, prevention and treatment of diseases based on the coordination of multidirectional legal goals of participants in these relations.