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1.1. Patients as participants of legal relations in sphere of rendering of medical aid

Without maintenance of health of the nation economic and cultural development of the country is impossible. Therefore not casually Constitution of the Russian Federation [1] (further ‒ the Constitution of the Russian Federation), embodying humanistic model of development of the Russian state, guarantees to each person, irrespective of age, volume of capacity, presence at it citizenship of the Russian Federation, health protection and medical aid (ch.

1 items 41).

Potentially each person is the patient. The state incurs care of that standards of medical aid developed by it provided increase of life expectancy, availability and quality of medical aid, protection of the rights of any person being in its territory and requiring such help (item 71 of Strategy of national safety of the Russian Federation accepted in 2015 [2]).

According to research of the All-Russia centre of studying of public opinion the majority of citizens of Russia carry a right to health protection to the major inalienable rights of the person (2016 – 49 % of respondents, 2013 – 49 %, 2009 – 51 %, 2005 – 43 %, 2004 – 47 %, 2003 – 40 %) [3] and during too time they mark dissatisfaction from quality of rendered medical aid, the state control in public health services sphere, not a readiness of mechanisms of legal regulation of protection of the rights of patients. Public health care and maintenance of the rights of patients, nesmotrja on any foreign policy changes, remain one of the basic functions of the Russian state at the present stage of development [4].

Health protection represents a considerable complex on volume of the various measures realised both authorised, and interested subjects which provide granting and medical aid reception on a paid or free basis, preventive maintenance of diseases, preservation of health and longevity of each person (podp. 2, 3 items 1 of item 2 of the Federal act from November, 21st, 2011 № 323-FZ «About bases of health protection of citizens in the Russian Federation» [5]).

From the above-stated concept it is obvious, that medical aid is included into number of measures on health protection, assumes application of system of the actions directed on maintenance and (or) recovery of health and includes rendering of medical services. However, proceeding from the purpose and research problems, we will leave behind its frameworks detailed consideration of a question on a parity of concepts "medical aid" and «medical service», having explained only that medical aid rendering, the reference behind it attracts occurrence of legal relations with participation of minors.

Question on allocation of separate group of legal relations in sphere of health protection of citizens in the legal literature debatable enough. In legal and medical sources it is possible to meet such terms:

‒ «medical legal relations» (in particular, in K.V.Egorov's treatment [6], J.D.Sergeeva and S.B.Kuzmin [7], etc.);

‒ «relations in sphere of health protection of citizens» (in S.V.Markijanova and O.V.Tanimova's understanding [8], etc.);

‒ «public health legal relations» (A.G.pancake [9], E.V.Lazareva [10], A.A.Mohov [11], etc.);

‒ «the relations connected with rendering of medical aid to patients» (A.A.Tchebotaryov and O.V.Hodakova [12], etc.);

‒ «the relations arising in sphere of public health services» (E.F.Truhanova [13]),

‒ the legal relations connected with granting and rendering of free medical aid and paid medical services by the medical organisation (Z.V.Kameneva [14]).

The operating Russian legislation calls a considered kind of legal relations as relations in health protection sphere (item 1 of the Federal act from November, 21st, 2011 № 323-FZ «About bases of health protection of citizens in the Russian Federation» [15] (further – the Federal act № 323-FZ), item 6 of the Federal act from February, 23rd, 2013 № 15-FZ «About health protection of citizens from influence of a surrounding tobacco smoke and consequences of consumption of tobacco» [16], item 8.1. State programs of the Russian Federation 2014 «public health services Development» [17]).

The analysis of legislative definition of concept of health protection of citizens, leads us to a conclusion that relations in sphere of health protection of citizens ‒ difficult legal relations on the legal nature. They have complex character and are regulated, as truly marks A.A.Mohov, norms of various branches of law [18].

We believe, that legal relations in sphere of health protection of citizens owing to their obvious integrated approach include some independent kinds of legal relations.

First, in structure of legal relations in sphere of health protection of citizens if to be guided by the purpose of their occurrence and as a whole the reason of the introduction of subjects in these legal relations, the mediko-legal relations connected with diagnostics, treatment, preventive maintenance of diseases of the person join, and also, we will agree with S.V.Markijanova and O.V.Tanimova's position, other relations arising concerning the organisation, payment and rendering of medical aid [19]. These legal relations arise, change and stop in connection with direct rendering of free medical aid to citizens (patients) or with their reference, the reference of legal representatives of patients behind its rendering.

However in legal science there is also other proved opinion. So, visible scientist M.N.Maleina, resulting arguments about formation of new complex branch of the legislation – branches of the public health right, defines its subject of legal regulation as the organizational, property, personal non-property relations arising in connection with management in sphere of public health services, rendering of the treatment-and-prophylactic help, realisation of medicinal maintenance, carrying out of mediko-rehabilitation, sanitary-and-epidemiologic actions, medicolegal activity, works on examination and pathoanatomical works [20].

Secondly, as a part of legal relations in sphere of health protection of citizens it is possible to allocate the civil-law relations connected with realisation of the personal non-property rights to protection of a life and health of physical persons, property rights for reception under the contract of paid medical services, voluntary medical insurance of a life and health, compensation of the harm caused to a life or health of the citizen at rendering of paid medical service, etc.

By A.A.Mohov and I.N.Mohova are convinced, that relations in public health services sphere to the full can be regulated by norms of classical civil-law institute of obligations owing to injury. From a position of authors, GK the Russian Federation [21] directly specifies among vozmezdnogo rendering of services medical services and, thereby, "extending" on them norms of the legal institution of obligations owing to injury [22].

To relations in sphere of health protection of citizens A.A.Mohov and I.N.Mohova carry the Russian Federations regulated also by norms GK, the special legislation the insurance legal relations generated by making contract of medical insurance in spite of the fact that «it is the classical third party beneficiary contract» [23].

Relations between consumers, customers and the executors, arising on the basis of the contract about vozmezdnom rendering of services will be Civil-law relations in sphere of health protection of citizens also. Plenum of the Supreme Court of the Russian Federation in the Decision from June, 28th, 2012 № 17 «About consideration by vessels of civil cases on disputes on protection of the rights of consumers» [24] (items 9) designates these relations as the Russian Federations regulated by norms GK and the Law of the Russian Federation from February, 7th, 1992 № 2300-1 «About protection of the rights of consumers» [25] relations «on granting to citizens of the medical services rendered by the medical organisations within the limits of voluntary and obligatory medical insurance».

In legal science, but, in our opinion, proved the differentiation as a part of the civil-law relations arising in connection with realisation personal non-property and property rights of citizens in sphere of health protection of organizational legal relations is disputable. Z.V.Kameneva connects occurrence of these legal relations with the conclusion of the contracts defining a procedure of payments between the employer and the medical organisation for rendering of medical services by the medical organisation to workers and members of their families. Data dogovory, from the point of view of Z.V.Kamenevoj, represent a separate kind of the civil-law contracts which are not concerning type contracts vozmezdnogo of rendering of services as the obligation to render medical service of certain volume and quality arises after the direct reference of the patient and the coordination with it of a condition about a subject of concrete service [26].

Thirdly, as a part of relations in sphere of health protection of citizens the jural relations under administrative law connected, for example, with creation by representatives in sphere of the organisation of system of health protection of citizens by enforcement authorities of necessary conditions for realisation of the rights of patients accurately stand apart.

Fourthly, relations in sphere of health protection of citizens include and family-legal relations though often they are difficult for delimiting from civil-law relations as a part of a considered complex kind of legal relations. Difficult relations by the legal nature between genetic parents of the child and substitute mother have complex family-legal and civil-law character. So, A.T.Bonner writes about difficult by the legal nature of the relations developing between genetic parents of the child and substitute mother, having simultaneously family-legal and civil-law character [27]. We will agree, that family-legal status the citizen in many respects influences relations in sphere of rendering of medical aid.

It is thought, that allocated in sphere of legal regulation of health protection of citizens separate kinds of legal relations not completely fill with the maintenance this complex kind of legal relations, but are its basic part. At the same time it is possible to notice, that in the current legislation civil-law and family-legal relations, arising at reception by the physical person of medical aid, practically are not regulated or legal statuses, their regulating, are dispersed under several standard legal acts. For example, A.A.Mohov [28] truly focuses attention that norms about compensation of harm to health or a life of the citizen at application of biomedical cellular products contain in Federal act item 48 «About biomedical cellular products». It actually generates numerous problems pravoprimenenija norms in sphere of health protection of citizens.

Legal relations in sphere of health protection of citizens as complex, regulated by norms of several branches of the Russian right, arise always with participation of citizens. They act as the basic subjects of legal relations in sphere of rendering of medical aid. Thus it is necessary to understand, that citizens can be patients-consumers of paid and free medical services, customers of paid medical services and executors of medical services, in case of the state registration as the individual businessman who is engaged in medical activity for the purpose of regular reception of profit on rendering of medical services (item 1 of item 23 GK the Russian Federation). It is necessary to recognise absence in legal system of Russia of accurate legislative differentiation and definition of specificity of a legal status of the patient and the consumer of medical services. On the other hand, it is important to pay attention that to citizens in the Russian Federation is not forbidden to be engaged in medical activity individually. However according to the current legislation medical activity of such subject of business admits vysokoriskovoj and at realisation of the state control it is checked depending on a risk category (item 1 of the Appendix to Position about the state quality assurance and safety of the medical activity, approved by the Governmental order of the Russian Federation from November, 12th, 2012 № 1152 [29]).

In connection with the stated we come to understanding, that the civil-law relations connected with realisation by the physical person of the property and personal non-property rights at reception of medical aid or at its reference behind it owing to necessity of protection of a life and health as the intangible benefits, irrespective of organisation-legal relations putting thus, are the integral component of legal relations in sphere of health protection of citizens.

According to item 1 of item 150 GK the Russian Federation the life and health ‒ is the intangible benefits belonging to the citizen from a birth, are inaliennable and inexpressible a different way. They are got by citizens not owing to the law, and owing to a birth. So, in the legal relations connected with rendering of medical services, medical aid it is a question that the medical organisation in the name of medical workers of this organisation "interferes" in sphere of the intangible benefits (a life, health), belonging to the citizen from a birth and being the inaliennable.

The life and health as the intangible benefits come under to protection by norms of civil and other legislation of the Russian Federation (item 2 of item 150 GK the Russian Federation). In this connection it is represented true to speak about civil-law position of the patient which has the right by means of application of civil-law ways, including realisation of measures of civil responsibility for injury by "inadequate doctoring» [30], to protect belonging to it from a birth a life and health.

Naturally, that objects of the civil-law relations arising with participation of the patient, the life and health will act, and also, we will agree with opinion of some scientists [31], volume, quality of rendered medical service, as integral constituting medical aid, irrespective of paid or free bases of its rendering.

Health is a condition of physical, mental and social well-being of the person at which there are no diseases, frustration of functions of bodies and organism systems (item 1 of item 2 of the Federal act № 323-FZ). By the legal nature, we will repeat, it acts as the intangible benefit (item 1 of item 150 GK the Russian Federation).

In the special literature it is possible to meet understanding of health as the intangible benefit of the information nature connected with the material (corporal) carrier ∑ by a human body [32].

From the point of view of M.N.Maleinoj the right to health has the civil-law nature of nonconventional personal non-property rights as provides physical well-being (integrity) of the person [33], and also mental condition of the person, expressed in absence of illnesses or a pathology (trouble) connected with loss, frustration of psychological, physiological, anatomic structure and (or) functions of a human body [34].

The citizen, writes M.N.Maleina, becomes the owner of relative rights which concretise the maintenance of the right to health and define its limits [35]. Among such rights, in its opinion, first of all, the right to the qualified medical aid, is unimportant on what beginnings it it turns out, the right to a choice of the doctor and the medical organisation, the right to any information concerning its state of health, the right to carrying out of a consultation, etc.

It is necessary to agree with the stated completely. Really, health ‒ the object of the civil rights concerning personal non-property rights which are inaliennable and inexpressible a different way.

Health, as well as other objects of civil law, is under protection and protection of the state, citizens, other persons (item 2, 3 items 150 GK the Russian Federation). Citizens are obliged to care of preservation of the health (ch. 1 items 27 of the Federal act № 323-FZ). However absence of statutory measures of responsibility for nesohranenie the health the full age physical person actually means possibility of free "order" it, including not to the best. In particular, it is a question of possibility of the full age patient to refuse medical intervention, even to the detriment of the health, for example, on religious motives and, thereby not to execute the duty to care of preservation of own health.

Minor persons have, as well as full age, in full the personal non-property rights connected with health, a life. However their independent realisation depends on a number of conditions. The attention is paid to it and in the legal literature [36]. For example, newborn juvenile children, possessing from a birth such intangible benefits as a life and health, independently neither to address for medical aid rendering nor make the transactions connected with making contract on rendering of medical services, cannot. Their realisation in many respects depends on the authorised subjects. In the forefront such subjects, according to positions of item 38 of the Constitution of the Russian Federation, item 1 of item 63 of the Family code of the Russian Federation [37] (further ‒ SK the Russian Federation), legal representatives of the minor. The state also carries out this function, including function of maintenance of appropriate protection of the right of the child on health. It is obliged to provide to each child care of its health and a legal protection of its right to health, medical aid reception (ch. 2 items 7 of the Federal act № 323-FZ).

Running forward, we will notice, that the question on a legal status of not born person in the Russian right remains debatable. In legal science the given problem is actively discussed and has the direct relation to the decision of a question on the moment of occurrence of the civil legal personality [38]. Meanwhile we believe, that in the conditions of realisation in Russia the humanistic concept of legislative specification demand not only questions of substitute motherhood, but also protection of the civil rights of mother and the child in case of a competition of their interests at rendering of medical aid by it, compensation questions to the biological parent (biological parents) the harm caused to viability to a fruit in connection with rendering to it of medical aid.

Patients ‒ the cores, but not the unique participants of civil-law relations arising in connection with protection of their life and health at rendering of medical aid and in connection with the reference behind it, and it is equal in connection with other kinds of medical activity which are carried out concerning them. As other major participant of these legal relations the executor - the medical organisation, and with participation of the minor patients who are not possessing the sufficient medical legal personality, customers of medical services (legal representatives of minor patients) acts.

In relations in health protection sphere, as the medical personnel (in particular, the medical, average medical personnel), the medical organisations (the medical organisations of various patterns of ownership, research medical institutes, etc.), the insurance medical organisations, insurers, the state bodies of regulation, management and the control their such active participants are necessarily involved in public health services sphere (in particular, Ministry of Health of the Russian Federation, Federal service on supervision in public health services sphere, controls by public health services of subjects of the Russian Federation) also.

Besides, as fairly write S.V.Markijanov and O.V.Tanimov, in these legal relations probably participation of other subjects: the bodies which are giving out to medical institutions the permission to employment by medical activity (licences and certificates), medical associations, the public supervising organisations (trade unions, societies of protection of the rights of consumers, and so forth), vessels [39]. A number of these subjects concerning protection of a life and health of patients can play a considerable role if it is required, for example, mediation for the permission of mediko-legal dispute pretrial stage.

Korrespondirujushchie the rights and duties of the patient (legal representatives of the patient) and the medical organisation constitute the maintenance of a considered kind of legal relations. Fundamental laws of patients, proceeding from konstitutsionno-legal and civil-law positions of corresponding standard legal acts as it has been specified earlier, ‒ a right to health protection and medical aid, protection of a life and health of the citizen, and the basic duties of the medical organisations, accordingly, - health protection of citizens and rendering of medical aid by it.

The state in legal relations in sphere of health protection of citizens too, is direct or oposredovanno, participates. As the foreign researcher M.Kelli, the state that subject who obliges the patient explains to behave legally [40]. To the patient it expresses the requirements through system of duties and an establishment, for example, measures of legal responsibility for detrimenting of the medical organisation.

Thus, relations in sphere of health protection of citizens have complex character and lay in a plane of private-legal, private-public (is social-legal) and public regulation [41]. The Civil-law relations connected with protection of a life and health of citizens, their integral part. However, focuses E.F.Truhanova's attention, their publicity is shown not in peculiar relations for it «the authorities - submission», and in relations of the medical organisation and the patient in which the medical organisation has a duty to carry out medical actions in the cases defined by the law, and at the patient ‒ a duty not to repair obstacles to lawful acts of the medical organisation [42]. Though they also carry, we will agree with N.A.Ozovoj [43], public character, but they, regarding rendering of paid medical services or the reference behind them the patient, are based on equality of the parties, freedom of the parties, optionality of legal regulation.

In the civil law theory it is explained, that «civil matters are established, as a rule, at will of persons participating in them on the basis of a principle of equality of the parties» [44], that «the civil right in unity with civil obligation corresponding to it and constitutes the civil matter maintenance» [45], that they are characterised by equality of the parties, mutual responsibility in case of default by the parties of the obligations taken up [46].

With reference to a so-called civil-law component of relations in sphere of health protection of citizens all these characteristics remain, but taking into account specificity of the last.

Being based on norms of item 1 of item 2 GK the Russian Federation, it is direct civil matters in relations in sphere of health protection of citizens, in our opinion, are:

‒ the property relations arising, for example, at making contract on granting by the medical organisation of medical services on the basis of voluntary medical insurance which pays either the citizen-patient, or its legal representative, or other subject, for example, the employer, at making contract about participation for compensation of the citizen in biomedical research;

‒ the personal non-property relations connected with property, which, for example, arise on the basis of the contract on rendering of medical aid within the limits of obligatory medical insurance, at the expense of means of Fund of obligatory medical insurance of the Russian Federation according to requirements of the Federal act from November, 29th, 2010 № 326-FZ «About obligatory medical insurance in the Russian Federation» [47];

‒ the personal non-property relations which have been not connected with property, arising as a whole at realisation by the citizen of the rights of defence of a life and health, for example, in connection with protection of a life and health of the pregnant woman, despite threat of  destruction of a fruit in its womb.

Life and health of the patient ‒ the major blessings from all kinds of the intangible benefits. Their protection not only the right of the citizen, but also a duty of the state, other authorised subjects. Many researchers speak about it, for example, S.S.Shevchyuk [48], Of this year Stetsenko, marking difficult subject structure of relations in sphere of health protection of citizens [49].

Patients, along with the medical organisations, ‒ the main participants of legal relations in health protection sphere. They in these legal relations take a special place as without their participation any purposefulness of health protection is lost.

Therefore we believe important further to make definition of concept "patient".

First of all, it is necessary to recognise as the patient the citizen as to it the state guarantees all spectrum of the rights in health protection sphere (item 1 of item 1 of the Federal act № 323-FZ). At the same time, absence of citizenship does not deprive of the person of a legal status of the patient, considering, that the patient can have citizenship of other state, to be the stateless person as in Russia medical aid rendering is guaranteed by everything, irrespective of a national identity (ч.2 Federal act item 5 № 323-FZ. Therefore pertinent the "wide" treatment of considered concept is represented.

The patient that follows from the maintenance of positions of item 2 of the Federal act № 323-FZ, ‒ this physical person who requires medical aid, has already addressed for it and receives it, or only has addressed and yet does not receive medical aid. Presence or absence at it for a legal status of the patient has no disease of value.

From the given definition it is possible to designate such signs of a legal category of the patient, as:

∑ the physical person can be the patient only;

∑ presence of the Russian citizenship for the patient unessentially;

∑ to the physical person there should be a medical aid both in case of the reference behind it, and in a case when he cannot address itself for it, but requires medical aid;

∑ presence or absence of disease at the physical person;

∑ any state of health of the physical person.

Besides, in this definition though this sign is not specified, but it is a characteristic sign and "invisibly present" ∑ it that the physical person who is the patient, possesses such intangible benefits belonging to the citizen from a birth, inaliennable and inexpressible a different way, as a life and health (item 150 GK the Russian Federation).

The analysis of the given signs, allowing to define concept "patient", leads us to understanding of that the patient is any physical person to whom there is a medical aid or which has addressed for medical aid rendering, that is has entered legal relations with authorised to render medical aid by the organisation.

From Latin language «patiens» it is translated ‒ suffering, suffering [50]. And as we can see, the modern current legislation of the Russian Federation considers the patient not only as the suffering person, but also as the person turning behind medical aid, irrespectively presence or absence at it citizenship of the Russian Federation, disease, a disease state. So, in our opinion, the legislator underlines a social orientation of the Russian state. On the other hand, in the above-stated concept it is possible to discriminate without special work one of the main signs of reference of the person to a category of patients – its reference behind medical aid or requirement for the medical aid, leaving considerable open space for interpretation of the given term.

In the current legislation of the Russian Federation at level of the subordinate legislation there are also other definitions of concept "patient". For example, in:

∑ Typical rules of compulsory insurance of a life and health of the patient participating in clinical researches of a medical product, the Russian Federations approved by the Governmental order from September, 13th, 2010 № 714 [51], the patient is understood as the physical person who has given the voluntary informed consent to participation in clinical researches spent by the medical organisation, confirmed with its signature or the signature of its legal representative on an information leaflet of the patient;

∑ Technical requirements and the test methods of cars of the first help approved by Order Rostehregulirovanija of Russia from September, 18th, 2006 № 201-st [52], definition of the emergency patient, as the patient who is owing to disease, a trauma or for other reasons in a condition of direct or expected danger to a life, demanding emergency medical aid and-or monitoring and transportation in medical institution is made...;

∑ Methodical recommendations «the Algorithm of interaction of participants of system farmakonadzora on revealing and work with spontaneous messages», approved Roszdravnadzorom Russia on October, 22nd, 2009 [53], reveals concept of the identified patient as persons, in which relation there are data on its initials, identification number (for example, for participants of clinical researches, case record number etc.), to a date of birth, age, age group or a field....

It is obvious, that the given definitions of concept "patient" have target mission: for obligatory medical insurance, rendering of the first help, pharmaceutical supervision, etc. Thus the reference of the physical person behind medical aid as the essential sign for definition of concept of the patient, in them is levelled.

In the special literature of the period of action of Fundamentals of legislation of USSR and union republics on public health services 1969 [54] also it is possible to meet various definitions of concept the "patient", showing attempts of experts in medical area to provide the greatest possible variants of occurrence of mediko-legal relations with participation of the person who have addressed for medical aid. So, in the Encyclopaedic dictionary of medical terms such definition of concept "patient" contains: «the Patient ‒ the person to whom render medical aid» [55].

The declaration on the politician in the field of maintenance of the rights of the patient in Europe, characterising physical and mental condition of the patient, defines concept "patient" so: the healthy or sick consumer of medical services [56].

The Russian scientists offer the definitions of concept "patient". For example, G.R.Kolokolov and N.I.Mahonko give such definition: « The patient – the person who has addressed in a medical institution of any organisation-legal form, to the doctor of private practice behind reception of the diagnostic, medical, preventive help irrespective of, is sick it or is healthy »[57]. A.N.Pishchita considers correct to understand as the patient« the person who has entered legal relations with medical workers and (or) other representatives of medical institution concerning reception of medical aid... Neither the place of rendering of medical aid, nor a state of health of the person have no defining value »[58]. A.V.Tikhomirov the patient names the person addressing to« to the doctor with need in its professionalism for the advisory help and correction of state of health »[59]. O.A.Tsyganov and I.V. Ivshina, experts in the field of medicine, believe, that the patient ∑ is that person who has addressed in treatment-and-prophylactic establishment, other medical organisation or to the privately practicing doctor behind diagnostic, medical or preventive medical aid (medical services) or participating in quality of the examinee at clinical tests of medical products [60].

Even more descriptive under the maintenance definition of concept "patient" contained in the draught federal law «About the rights of patients» [61] which in 2000 was submitted for consideration in the State Duma of Federal assembly of the Russian Federation, but and has not been accepted. Imperfection offered to fastening in it of legal mechanisms of protection of the rights of the physical persons participating in quality of examinees in biomedical researches, have not allowed to approve the given bill. In item 1 of the given bill the concept "patient" revealed taking into account difficult legal structure of the mediko-legal legal relations as which subject the physical person can act: « The patient ∑ the person who requiring medical aid and-or has addressed for it, receiving medical aid, or participating in quality of the examinee in the biomedical researches, being under medical supervision, and also acting as the consumer of the services medical and connected with them irrespective of is healthy it or is sick »[62].

In the draught federal law № 189743-7 «About maintenance of health of children» [63], now submitted for consideration in the State Duma of the Russian Federation, other concept of the child-patient treated as the child, requiring medical aid or receiving it contains.

For comparison we will tell, that the legislation of foreign countries also is various in understanding of the term "patient". For example, the bill of rights of patients in the USA contains [64] 1999 wide enough definition of concept "patient", opening it as follows: «the Patient ∑ is any individual receiving long - either short-term stationary or out-patient medical aid, fast or urgent medical aid, and also the client of institutions for the long-term help or leaving».

From its part we believe, that, proceeding from close interpretation of the given definition, the physical person, applied for to medical institution the inquiry on a condition of the health, the person receiving leaving, and not just treatment cannot be considered as the patient, and, ∑ can.

Having analysed the national legislation, separate international certificates, the legal and special literature about definition of concept "patient", we come to conclusion that the patient ∑ a multidimensional legal category which is difficult for opening owing to existence of various mediko-legal relations with participation of physical persons. Definition of concept available in the legislation "patient" demands updating at level of change of a legal definition. Thus it is necessary to consider the following:

– Only physical persons can be patients;

– Physical persons can act as patients as addressing for medical aid, irrespective of presence or absence of disease, in a planned order or is emergency, and taking part in clinical researches of a medical product, receiving, for example, in the medical organisation, vaccination;

– The physical person can be in dynamic (for example, in a condition of direct reception of medical aid) or static conditions of the patient (in particular, it the citizens having chronic diseases and standing on the account in the medical organisation) can.

Accordingly, whether has no value the patient has addressed for medical aid itself or it treat (render medical aid) besides its will and desire, he has addressed for medical aid or began to take part in clinical researches on purpose to receive a medicine for the treatment or treatment of other people in the future to whom he has addressed for medical aid from the authorised subjects: the medical organisation of any organisation-legal form or to the medical worker who is engaged in private medical practice as the individual businessman.

It is necessary to consider as the patient and the person participating in clinical researches, tests. The person who has agreed to biomedical researches of the body, keeps all complex of the rights of the patient in the field of health protection. A.S.Kontsevenko investigating features of legal regulation of biomedical researches and application of new biotechnologies in the European Union and the Russian Federation, writes about problems of protection of the rights of patients at extraction of illegal financial profit from manipulations with human genomom, bodies, fabrics, from experiences with embryos and necessities of inclusion to the Russian civil and criminal legislation of norms on the laws of persons acting as objects of clinical researches and about responsibility for their infringement [65]. Thereby, the author tries to delimit concepts "patient" and «the participant of clinical research».

Such approach, after other researchers, we consider not absolutely true [66]. Participation in clinical test does not cancel a legal status of the patient, and only shows dynamism of this position. Therefore inclusion in definition of concept "patient" of the formulation about participation of the physical person in clinical tests of medical products, irrespective of presence or absence at it any disease, actual non receipt of medical aid during such tests, we consider proved.

The person at any age is the potential patient. However the mechanism of occurrence, change and the termination of civil matters in health protection sphere depends not only from the right - and capacity of the subject, but on many legislatively provided special conditions: standards of rendering of medical aid, age of the patient, a condition of its health, actions (inactivity) of legal representatives of the patient, etc.

So, in Order Minzdravsotsrazvitija of Russia from November, 22nd, 2004 № 255 «About the Order of rendering of the primary medicosanitary help to the citizens having the right to reception of a set of social services» [67] the rule of law that «at presence at the patient of the diseases demanding individual dispansernogo supervision by the attending physician, is spent dispansernoe supervision under the individual plan corresponding to given disease» contains.

In this connection obosnovanno to say that absolutely healthy subject but who enters mediko-legal relations can be the patient, for example, behind reception as it seems to it, to the necessary medical aid, capable to improve its state of health. Thereby we come to conclusion, that the juridical fact of the introduction of the physical person in any mediko-legal relations with the medical organisation, and not just its reference behind medical aid, or presence at it diseases generates occurrence of a legal status of the patient. Thus the patient is also the participant of civil matters.

With a view of prevention of collisions and occurrence of disputes in medical and judiciary practice of, whether the concrete physical person the patient, legislative definition of concept the "patient" is, containing in the Federal act № 323-FZ it is necessary to subject editions.

We consider, that the given concept can be formulated as follows: «the Patient ‒ this physical person to whom there is a medical aid or which has addressed for medical aid reception, rendering of paid medical services or which is under medical supervision, participates in quality of the examinee at observance by the law of the established order in biomedical and others, directly connected with medical activity, researches irrespective of presence at it disease».

For a recognition of the physical person the patient participating, including in civil matters, occurrence of one of following juridical facts will be sufficient:

∑ the reference of the physical person behind medical aid irrespective of presence at it disease and from its condition as it is connected with protection of its health and a life;

∑ reception by the physical person of medical aid, including by means of rendering to it of paid medical services;

∑ participation of the physical person who have or not having disease, as the examinee in clinical medical researches, clinical tests of a medical product;

∑ realisation in relation to the physical person of medical intervention;

‒ a finding under medical supervision.

Thus it is necessary recognise that medical aid can to include rendering of paid medical services, i.e. they can be its part, proceeding from definitions of the given concepts containing in item 2 of the Federal act № 323-FZ.

The patient, being the participant of mediko-legal relations in which structure we have allocated also civil-law relations, gets and a corresponding legal status. Its basis constitute both mediko-social rights and duties of the patient, and personal non-property both property rights and duties, including the right to health, a right to health protection, the right to medical aid, the right to the information on a state of health, the right of defence of the patient, the right to reception of qualitative and timely medical aid, the right to making contract about rendering of paid medical services, the right to reception of indemnification of moral harm in connection with poor-quality rendering of medical aid, the right to a summer residence of the voluntary consent to medical intervention, a duty not to undertake the actions, capable to break the right of other patients, a duty to compensate harm, it is guilty caused to the medical organisation. Depending on volume of civil capacity of the patient (minor or full age) the volume of its competences in health protection sphere on independent decision-making on medical intervention or on refusal of it is formed also. Thereby, allocation of such legal category, as civil-law position of patients matters.

Thus the rights of the patient have a priority before duties of the patient. To such conclusion we come from the analysis of concept of the patient set forth above as participant of civil matters. If the patient does not fulfil the duties, even is deliberate, in any cases medical aid should be rendered it.

Minors also can be participants of the legal relations arising in connection with rendering by it of medical aid if not to mention deeper problem of a legal status of a live fruit in a womb of mother. They, in particular, can be participants of following legal relations:

‒ legal relations on rendering to it on the basis of a priority of free medical aid,

‒ legal relations on granting of paid medical services,

‒ legal relations on carrying out of biomedical researches,

‒ legal relations on medical supervision.

The Civil-law aspect of these relations consists that in all kinds of legal relations guarding norms of the civil legislation (the right to life, health), and also norms about representation of interests of minors in these legal relations by legal representatives are applied. Though institutes of the civil legislation on protection of the non-property rights, about representation of interests of minors are well enough developed in the civil law theory, but addition of theoretical representations about features of a legal status minor as patients, in our opinion, is required. In particular, till now there is debatable a question on the moment of occurrence of the civil legal personality and capacity of the child.

Let's sum the cores up.

In legal science in whole and a civil law science allocation of an independent new legal category of civil-law position of the patient and, as consequence, legal categories of civil-law position of full age and minor patients in particular is necessary. The patient is one of the basic subjects of mediko-legal relations which by the nature ‒ complex and include, among other relations, the civil-law relations possessing, undoubtedly, specificity.

In view of incompleteness of a statement of the bases of occurrence of a legal status of the patient definition of concept the "patient", containing in item 2 of the Federal act from November, 21st, 2011 №323-ФЗ «About bases of health protection of citizens in the Russian Federation», demands completion. It is necessary to understand the physical person to whom there is a medical aid or which has addressed for medical aid reception, rendering of paid medical services or which is under medical supervision as the patient, participates in quality of the examinee at observance by the law of the established order in biomedical others, directly connected with medical activity, researches irrespective of presence at it disease.

The content of rights and duties of the patient, considering social value of health protection in the state, wide enough also includes both public, and private-law relations, including mediko-legal, civil-law, is administrative-legal, and other relations, but always lives developing in connection with protection and health of the citizen.

Any citizen, occupying a legal status of the patient, is the subject of civil-law relations at rendering of free medical aid or granting of paid medical services.

Civil-law relations with participation of the patient are presented property (for example, arising at making contract on rendering of paid medical services) and the personal non-property relations arising in connection with protection of a life and health of the citizen, and in these relations it can be the patient, the consumer and (or) the customer of medical services. In volume of the civil rights of the patient (the main thing from which the life and health right of defence is), its civil duties, the special rights and duties in health protection sphere, specificity of their realisation features of civil-law position of the patient consist.

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A source: Hamitova Gulnara Mullanurovna. Civil-law position of minor patients in the Russian Federation the Dissertation on scientific degree competition The master of laws. Kazan - 2018. 2018

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