On the issue of the effectiveness of the civil law method in the regulation of health protection relations

Vasiliev Sergei Vladimirovich ORCID: 0000-0002-7169-6688 Doctor of Law Professor; Faculty of Law; Pskov State University 180016, Russia, Pskov region, Pskov, Narodnaya str., 23/17, sq. 78 profi.60@mail.ru

Introduction

One of the promising areas of research is the private law aspects of public health relations. In modern conditions, this requires the close attention of scientists.

It is becoming increasingly obvious that it is not enough to develop the healthcare sector using public legal methods of regulatory influence. Undoubtedly, there are positive aspects here. In general, it is possible to successfully solve many complex issues of streamlining relations based on the property of the obligation of the legal form and enforcement of its regulatory requirements. This has a certain effect, ensuring the mass and accessibility of medical care for all through a powerful "managerial maneuver".

The public-legal nature of such an impact (in the interests of all) obvious. But it does not always allow us to maintain high growth rates of qualitative indicators of public health protection and medical care.

The regulatory type of regulation, which uses public law methods based on legislation, is faced with objective realities of reality, which make it difficult to effectively apply it and achieve positive results. The rapidly changing realities of reality create obstacles in obtaining medical care that is adequate to the unique characteristics of the health status of specific patients and the specific conditions in which they receive this assistance.

The properties of law that make it possible to effectively use the responsibility of the copyright holder for free choice as a regulator of behavior remain "in the shadows" and are not fully in demand in law enforcement practice.

In the rush of passion for the centralized organization of medical processes, private legal aspects of public health protection relations are not always sufficiently identified. Regulation in the field of medical relations is mainly of a public legal nature. Accordingly, private law methods of their ordering are not fully realized as a promising opportunity to achieve the special (private) interests of the patient.

At the same time, scientists note that "even public branches of law can include conditionally dispositive aspects. ... The presence of such ... presupposes the penetration of private law institutions into public sectors. In this regard, a field is being created to explore the potential of the use of private law institutions in traditionally public relations" ^{[1, p. 76]}. Or another example, where "despite the public nature of the goal of increasing energy efficiency, ensuring its achievement does not exclude the use of private legal means" ^{[12, p. 50]}.

In medical relations, the priority of the normative limitation of the patient's choice of a doctor or medical organization is explained by public legal aspects. But this limits the patient's ability to receive timely, qualified and comprehensive medical care.

This limits his private interest, which is interpreted in science as "the desire of individuals to independently and independently make decisions concerning them directly" ^{[5, p. 22]}. Therefore, the idea of "some relations" is interesting, which "by their nature are mixed, i.e. combine private and public elements, but the private legal aspect is separable (my italics – S.V.) from the public" ^{[6, p. 104]}. Probably, in such relations, it is possible to reduce the level of dependence of private law on public law and further improve the process of their regulation on this basis.

Noting the dynamism of relations in certain areas, T.Y. Khabrieva points out that "the predominance of legislative acts reduces the effectiveness of legal regulation, reduces the ability to respond promptly to changes occurring in the subject of regulation. In order to adequately reflect the dynamics of the development of the modern legal sphere, legal regulators must be extremely flexible" ^{[14, p. 8]}.

It can be assumed that the priority of the subject of legal regulation, characteristic of the sectoral approach in law, is often questioned by life itself and requires some adjustment in favor of methods. This happens when the dynamics of modern realities simply forces the subject to acquire an interdisciplinary character. The relevant sphere of legislation becomes "a conglomerate of public law and private law principles in the regulation of public relations" ^{[16, p. 290]}.

At the same time, the role of private law methods will only increase. In the context of rapid changes in society that cannot be stopped, this can expand the possibilities of effectively streamlining relations in accordance with Russian reality.

The main part

In our opinion, a rapidly developing social organism feels an urgent need for behavior supported by a type of legal regulation other than normative, capable of reviving the initiative of citizens. There is an objective need to strengthen private law principles in the mechanism of legal regulation. It is about streamlining relationships based on an independent and therefore responsible choice of a behavioral trajectory.

It is impossible not to listen to D.A. Pashentsev, who noted "the need to expand the arsenal of regulators used… In the future, this may lead to the fact that the law will lose its former role ... This trend is objective" ^{[9, p. 11]}.

Indirectly, this confirms not only the idea that regulatory regulation at the level of by-laws will be expanded. But also, probably, the activation of the use of "non-normative type" regulators, using the effect of responsible behavior based on free and therefore independent choice. It is appropriate to cite the opinion of G.M. Lanova, who notes that "since the subjects of law, due to the existing features of the organization of private law regulation, cease to feel their independence, they cease to be responsible" ^{[7, p. 54]}

This implies a significant shift in the center of gravity from public-law methods of regulation to private-law ones.

The reason for serious scientific research in the context of the above is given by the decision of the Supreme Court of the Russian Federation (hereinafter referred to as the Supreme Court of the Russian Federation, the court) No. AKPI23-158 (Decision of the Supreme Court of the Russian Federation dated 04/12/2023 No. AKPI23-158 "On refusal to satisfy the application for Invalidation in part of paragraph 9, paragraph two of paragraph 11, paragraphs 13, 14 of the Rules for Ultrasound Examinations, approved. By Order of the Ministry of Health of the Russian Federation No. 557n dated 06/08/2020" // ConsultantPlus Legal Reference System).

Based on the key points of this judicial interpretation, it is possible to initiate a discussion that is very useful for civil law and legal science in general, since aspects that are significant for the prospects of the development of Russian legal understanding are touched upon here.

Here is an example of how, at first glance, a question of local significance "shoots out" the need to improve ideas about the basic concepts of law. For example, about the difficulties of understanding subjective law and the possibilities of increasing the level of its protection by private law methods.

The problems of realizing the right to health protection and receiving medical care seem to be limited by the healthcare industry, which, at first glance, is relatively narrow in nature and has very deep specifics of relations. But a careful study of these problems and approaches to their solution allows us to see new and sometimes unexpected facets of the legal matter. Moreover, in such a way that it makes one doubt the sufficiency of the tools of the traditional sectoral approach in jurisprudence, which is habitually practiced in the conditions of the prevailing positivist legal doctrine.

There is a feeling of some "constraint" within the boundaries of this approach to the possibilities of increasing the level of legal support for the quality of health indicators. It is necessary to expand the scope of private law (civil) methods of streamlining relations when receiving medical care.

Briefly about the essence of the matter. Plaintiff I. believed that the norms of paragraph 13 of the Rules according to which, for ultrasound examinations (hereinafter referred to as ultrasound), the attending physician issues a referral for ultrasound, which, among other things, contains the name of the medical organization to which the patient is sent, do not comply with the provisions of a number of federal laws and by–laws. Firstly, the patient's right to receive paid medical services in the form of individual medical interventions is violated and, secondly, the right of a patient who wants to perform such a study for a fee to choose a medical organization is limited.

Having examined the procedures and concepts established by the norms of relevant laws and by-laws, the completeness of their systemic interaction, the Supreme Court of the Russian Federation came to the conclusion that the contested regulations comply with normative legal acts of great legal force, do not violate or limit the rights of the administrative plaintiff in the aspects mentioned by him (See the Decision of the Supreme Court of the Russian Federation dated 04/12/2023 No. AKPI23-158).

Despite the fact that the claim is of an administrative nature, the court decision raises a number of controversial issues about the ratio of methods – public law and private law.

In our opinion, the right to health protection and medical care did not receive adequate support from the court in the considered case. Perhaps it is precisely because of the lack of attention to private law methods of regulating relations in the provision of medical care and the underestimation of the subjective factor by the highest court.

In connection with the above, an interesting point of view is where "the analysis of judicial practice and scientific research pointed to the need to qualify the behavior of participants in a legal relationship from the standpoint of identifying and characterizing elements of a subjective factor. Chaotic approaches, indicating the lack of a generally recognized understanding of the priority of the principles of law, methods of assessment and a mechanism for taking into account the behavioral component ..., prevent the formation of uniform judicial positions, which, in turn, significantly reduces the effectiveness of the protection and protection of violated and disputed rights of individuals and legal entities ..." ^{[4, p. 97]}.

It is possible that the court did not fully assess the patient's independent choice of a behavioral trajectory option, "exempt" from an ultrasound referral issued by the attending physician. Although such a person can increase the availability, qualification and comprehensiveness of assistance! Therefore, the plaintiff I. disputes the "arbitrary and excessive nature of the prescription" of paragraph 13 of the Rules mentioned above.

The complexity of the process of neutralizing excessive rationing is obvious. After all, even the practice of the Constitutional Court of the Russian Federation "follows rather the path of identifying the subjective constitutional right to MP (medical care – SV) with the totality of administrative powers defined by sectoral legislation..." ^{[15, p. 12]}.

Therefore, the Supreme Court of the Russian Federation objects to the plaintiff, noting that this paragraph "does not exclude the possibility of making changes to the direction in terms of the name of the medical organization ... and does not limit the patient's right to choose a medical organization ... both at the stage of receiving a referral, and in the case of a change in choice due to reasons beyond his control" (The Appellate definition of the Appellate Board of the Supreme Court of the Russian Federation No. APL23-259 dated 07/20/2023 "On Leaving Unchanged the Decision of the Supreme Court of the Russian Federation No. AKPI23-158 dated 04/12/2023, which refused to satisfy the application for Invalidation in part of paragraph 9, paragraph two of paragraph 11, paragraphs 13, 14 of the Rules for Ultrasound Examinations, approved. By order of the Ministry of Health of the Russian Federation dated 06/08/2020 N 557n" // Legal reference system ConsultantPlus).

We agree that the point does not exclude the possibility of making changes to the direction, but it clearly limits it to a number of additional actions and "inconveniences" that are imposed on the patient as a result. Especially not "at the stage of receiving a referral", but "in the case of a change in choice due to reasons beyond his control."

This probably means the option when the direction has already been received. It is not entirely clear, however, why exactly "due to reasons beyond his control (my italics are S.V.)"? On the contrary, the patient should be able to change his choice if the citizen considers it necessary for himself for reasons that depend on him and are important for him in specific living conditions.

For example, when a different choice becomes more convenient for this particular citizen, who soberly calculated that a different combination of circumstances of a logistical, infrastructural nature, time and money spent when choosing another ultrasound organization in their entirety can improve the parameters of his access to medical services and its main qualitative indicators (= timeliness, comprehensiveness, qualifications).

The patient should be able to quickly choose a trajectory of behavior that takes into account real circumstances (doctor's experience, time of diagnosis, need for financial resources, infrastructure, logistics, etc.). And therefore, he can better ensure the protection of his health by receiving better medical care in terms of timeliness, comprehensiveness and qualifications as a result of the implementation of his own behavioral track. Let us note here the signs of dispositivity, which "in the aspect of specific legal relations ... is expressed primarily in the ability of subjects ... to regulate these relations, to determine to a certain extent their content" ^{[8, p. 9]}.

The advantage of the private law method, which is based on the patient's free choice, is obvious in this example. Based on a cumulative assessment of all real conditions, the patient can decide (at his discretion, independently and therefore responsibly) how to act most correctly and in his own interests in order to obtain the best possible result. This is his subjective right and his responsibility.

Unfortunately, the court's version is somewhat different. The highest court considers the organization of the medical process to be the main thing. Therefore, the main public law methods of influencing relations are those that ensure the interaction of participants in the process by distributing their rights and obligations.

The key link in this scheme is the attending physician, who is obliged to organize the patient's care "ideally". Therefore, it is likely that the patient's free choice does not play a decisive role in the process of legal regulation of medical care. It is not considered by the court as an effective method of regulating public relations in the interests of the patient.

For example, according to the court, "the arguments in the appeal of the ACTING on excessive encumbrance of persons ... on the grounds that the contested legal norms do not allow ultrasound to be performed without the referral of the attending physician ... are untenable, since ... it is the attending physician who organizes timely qualified examination and treatment of the patient" (See the Appellate ruling of the Appellate Board of the Supreme Court of the Russian Federation dated 07/20/2023 No. APL23-259).

The Law "On the Basics of protecting the health of citizens in the Russian Federation" in article 70 (The attending physician) defines that "...2. The attending physician organizes timely qualified (my italics are S.V.) examination and treatment of the patient ...". Or "...5. The attending physician establishes a diagnosis, which is based on a comprehensive (my italics – S.V.) examination of the patient ..." (Federal Law No. 323-FZ of 11/21/2011 (ed. dated 07/24/2023) "On the basics of protecting the health of citizens in the Russian Federation" (with amendments and additions, intro. effective from 09/01/2023) // Legal reference system ConsultantPlus).

It is clear that with such formulations, the law formally eliminates the patient's difficulties. The patient does not need to worry about the "referral of the attending physician", since this will not only not make it difficult (according to the Supreme Court of the Russian Federation), but, on the contrary, will ensure timely qualified and comprehensive examination of the patient treatment.

A somewhat strange situation arises when we are forced to proceed from the premise that "the attending physician cannot fail to organize a timely, qualified and comprehensive examination." This is too much! In the future, this approach may make it difficult to improve relations in the health sector.

Conclusion

Turning to the conclusions, we note that the possibility of "improper organization" on the part of doctors should not be formally excluded, as the Armed Forces of the Russian Federation does in its decision. It should be recognized. The patient should be given the opportunity to neutralize difficulties that are not excluded in reality due to "failures of the medical organization" by his own independent trajectory of behavior.

In our opinion, this will mean the active introduction of private law (civil) regulatory methods into the process of protecting the health of citizens and receiving medical care.

In the context of the decision of the Supreme Court of the Russian Federation, it is very difficult to have the opportunity (= right) to improve the quality of medical care. On the contrary, the court's legal approach is probably intended to compensate somewhat for the "binding force" of rationing, sometimes the low level of logistical and personnel provision in the healthcare sector. The issue of "waiting lists for medical care" in conditions of a serious shortage of its individual significant elements is becoming really dominant. The emphasis of legal regulation is shifting towards the widespread use of public law (or "organizing") methods. And this is true, but ... As the authors quoted below accurately note, "justice, put at the forefront, sins with a tilt towards equalization, and public practice of its implementation, without taking into account the need to build reasonable standards of freedom, leads to stagnation of society, whose members lose incentives for development" ^{[2, pp. 116-117]}.

Unfortunately, so far our official legal space is adapting to this, replacing legal regulation with legislative regulation aimed mainly at organizing the medical process as a whole, designed for everyone. The possibility of providing quality indicators of care for a particular patient with unique health characteristics is still secondary and is often implemented according to the "residual principle".

The opinion of A.V. Skovorodko is curious, who notes that the factor of diminishing the constitutional right of citizens to medical care may be hidden rationing ^{[11, p. 31]}. I.V. Timofeev points out that "it is implemented in the organization of queues for receiving medical services (because of which it becomes impossible to receive it in the required time), in bureaucratic obstacles (provision of various kinds of documents, certificates, etc.) ..." ^{[13, p. 23]}. Isn't this reminiscent of the case that was considered by the Supreme Court of the Russian Federation on the claim of I., since the contested norm looks like a rule of "queuing up" for ultrasound and strengthening "bureaucratic obstacles"?

Concluding the work, we will quote, which emphasizes the complexity of the category of health and its protection. According to A.A. Gromova, this is "not only a constitutional phenomenon, but rather a complex one" ^{[3, p. 40]}. Therefore, there is a temptation to strengthen the possibilities of realizing the right to health protection by linking it, for example, with such a significant constitutional right as the right to life.

For this purpose, the framework of a complex subjective constitutional right to "life and health protection" is even proposed, which can increase the level of state guarantees for this "complex" right. But the difficulties of such an approach are also rightly noted, when, for example, "the right to life should not be fully identified with guarantees ensuring the health of the population - it is associated with the problems of the death penalty, euthanasia, suicide, mortal risk, military operations, emergencies, etc." ^{[10, p. 43]}.