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THE CONCLUSION

Minors in the Russian Federation have, as well as full age, a legal status of the patient. They possess all competences to realisation belonging to them on the basis of the Constitution of the Russian Federation of rights to health protection and rendering of free and paid medical aid.

However special position – the civil-law, property set property and personal non-property rights of minors is peculiar to them at reception of free medical aid and rendering of paid medical services, specificity presence in their civil and medical legal personality. Civil-law position completely the capable minor patient is not established by the legislation of the Russian Federation on health protection of citizens.

Specificity of the civil and medical legal personality of minor patients defines presence of their various categories characterised by features of realisation of rights to health protection, receptions of medical aid and execution of duties of the patient.

Legal basis of formation of civil-law position of the minor patient is the Constitution of the Russian Federation, norm of the Federal act № 323-FZ in which the priority of health protection of children is put in pawn. Therefore it is necessary to recognise, that civil-law position of the minor patient accumulates in itself the special (mediko-social) rights of the minor patients, all established by norms of the legislation of the Russian Federation system of the subjective civil rights and legal obligations of the minor patients caused by them the civil and medical legal personality, guarantees of protection of the rights of the patient, a measure of civil responsibility and protection of minor patients.

Carried out rather-legal analysis of the rights and duties of the minor patient and the full age patient of the medical organisation has allowed us to reveal following features of civil-law position of the minor patient:

∑ on the one hand, the rights of the minor patient are essentially limited regarding their independent realisation in comparison with the rights of the full age patient: for realisation of the majority of the rights by the child-patient in health protection sphere the consent of legal representatives or guardianship body is required, including at a choice of the medical organisation, the doctor, the consent or refusal of medical intervention (behind some exceptions), reception of medical aid within the limits of clinical approbation, acquaintance with the medical documentation, the decision of a question on reception of consultation from other experts;

∑ on the other hand, minor patients have bolshy volume of the rights in health protection sphere in comparison with adult patients, for example, by it are guaranteed a free finding in the medical organisation at medical aid rendering in stationary conditions of one of parents, other member of a family or other legal representative, passage of medical examinations, sanitary-and-hygienic education, reception of the information on a condition of the health to the accessible form, proceeding from features of age, mental and physical health.

The civil-law position of the minor patient defining the special rights of children in sphere of health protection, caused by a priority of protection of their health in the Russian Federation is obvious, that, on maintenance volume differs from civil-law position of the full age patient.

However, as it has been established in research, fastening in the legislation of the Russian Federation on health protection of citizens of separate restrictions in realisation of the rights of children-patients is not discrimination of citizens on age, and feature of protection of minors owing to features of a condition of their health, age, capacity volume.

At the same time, as has shown the carried out research, actual in a considered problematics for the decision such questions, as now are represented:

‒ about possibility of the conclusion minors of contracts on rendering of paid medical services, about protection of the rights of the child as consumer and the customer of medical services. Different approaches to understanding of the civil legal personality of children-patients have the operating civil and special legislation: from a civil law position minor patients do not possess full capacity, namely: Cannot independently conclude dogovory on rendering of paid medical services even if agree medical intervention, and from a position of the legislation on health protection of citizens ‒ can from 15 years (for sick of a narcotism ‒ from 16 years) to make the decision on consent on medical intervention or refusal of it, but cannot independently conclude the contract on rendering of paid medical services without the written approval of legal representatives, thereby civil-law position of minor patients at the given stage is not stable, that does not promote high-grade protection of the rights of children, creates threat to infringement of their rights as patients, does not allow professional participants to observe the legislation on the rights of patients in the field of medical activity;

‒ about independence of the minor patient in decision-making on medical intervention or refusal of it: despite the general rule allowing the minor, reached the established age, independently to solve a question on medical intervention or refusal of it, on occasion the consent of legal representatives it is necessary up to majority of the child; it causes necessity of entering into the civil legislation of the specifications, concerning that unequivocal understanding, that minors are elderly till 14 years independently have not the right to conclude the contract on rendering of paid medical services, and in achievement of this age ‒ have the right, even in the absence of the consent of legal representatives if there is a conclusion of a consultation of doctors;

‒ about imperfection of mechanisms of civil-law protection of the rights of minor patients; despite established by the legislation on health protection the priority of health protection of children, actually is absent the mechanism of protection of the rights of the child-patient at the untimely reference of its legal representative behind medical aid or refusal of the legal representative of it, the state of health which have led to deterioration of the minor or his death; in this connection in work it is offered to develop the concept of Rules of rendering of free medical aid and granting of paid medical services to minor patients and to approve them at standard level that will allow to strengthen guarantees of realisation and protection of the rights of minor patients.

Other perspective offer stated in work, considering, that the operating system of protection of the rights of patients-children in the Russian Federation at the present stage is imperfect, is granting to minor persons of the right to the reference in mediation service at guardianship bodies, and also public organisations for competent complex representation of their interests in health protection sphere in the medical organisations, court and supports of all process of rendering of medical aid by them to minors. In this connection the right to the reference in public organisations for representation of their interests, besides legal representatives and guardianship bodies, in the medical organisations, court and other state, municipal authorities is necessary to assign to minors.

The model of civil-law regulation of relations on rendering to minor patients of medical aid on a paid both free basis and its introductions in the legislation of the Russian Federation in the form of the separate special standard legal act is constructed.

In the course of the carried out research specific proposals on perfection of the legislation of the Russian Federation, assuming entering into it of below-mentioned changes have been developed.

For perfection of the mechanism of realisation of the rights of minor patients, including in sphere of rendering of paid medical services, it is necessary for them norm ch. 1 item 84 of the Federal act from November, 21st, 2011 № 323-FZ to change and state it in the following edition:

«1. Citizens have the right to reception of the paid medical services given at will at rendering of medical aid, and paid not medical services (household, service, transport and other services), given in addition at medical aid rendering. The citizens who have not reached majority and not sick narcotism, not recognised in a statutory order incapacitated, have the right to rendering of paid medical services by it with the consent of the legal representative, and in the absence of the consent of the legal representative, ∑ in case of achievement chetyrnadtsatiletnego of age and reception of the corresponding conclusion of a consultation of doctors.».

With a view of perfection of the legislation on health protection of citizens and rendering of medical aid, the mechanism of a legal protection of the rights of minor patients it is necessary norm ch. 2 items 54 of the Federal act from November, 21st, 2011 №323-ФЗ «About bases of health protection of citizens in the Russian Federation» to change and state it in the following edition:

«2. Minors aged are more senior fourteen years or minors sick of a narcotism aged are more senior sixteen years, and equally minor at other age under the decision of a consultation of doctors, have the right to the informed voluntary consent to medical intervention or the right to refusal of it according to the present Federal act, except for cases of rendering by it of medical aid according to parts of 2 and 9 articles 20 of the present Federal act.».

For the purpose of perfection of the mechanism of realisation by minor patients of the information rights in health protection sphere it is necessary norms ch. 1 and 2 items 22 of the Federal act from November, 21st, 2011 № 323-FZ «About bases of health protection of citizens in the Russian Federation» to change, having stated them in the following edition:

«1. Each patient has the right to receive the information available in the medical organisation on a condition of the health, including data on results of medical examination, the disease presence, the established diagnosis, the forecast of development of disease, methods of rendering of the medical aid, the risk connected with them, possible kinds of medical intervention, their consequences and results of rendering of medical aid in the form accessible to it.

2. The information on a state of health is given to the patient personally by the attending physician or other medical workers accepting direct participation in medical examination and treatment. Concerning the persons who have not reached age, the present Federal act established regarding 2 article 54, and the citizens recognised in a statutory order incapacitated, the information on a state of health it is given to its legal representative, and also other persons specified by the patient if it does not entail deterioration of their state of health ».

For the purpose of optimisation of ways of civil-law protection of the rights of minors and perfection of the legislation regulating civil-law position of minor patients, also it is necessary:

1) to make changes to chapter 39 GK the Russian Federation, having added with its norm about the contract of rendering of paid medical services;

2) to develop and approve the governmental order of the Russian Federation of the Rule of rendering of free medical aid and granting of paid medical services to minor patients;

3) in the Federal act from November, 21st, 2011 № 323-FZ «About bases of health protection of citizens in the Russian Federation» (item 2) and Rules of rendering of free medical aid and granting of paid medical services to minor patients (item 2) legislatively to fix concept «the minor patient»;

4) in ch. 1 item 20 the Federal act from November, 21st, 2011 № 323-FZ «About bases of health protection of citizens in the Russian Federation» to make changes according to which the informed voluntary consent to medical intervention or refusal of it should be given and the citizen is more senior 14 years and its legal representative;

5) in ch. 2 items 20 of the Federal act from November, 21st, 2011 № 323-FZ «About bases of health protection of citizens in the Russian Federation» to make changes, having excluded the reference had in it on ch. 5 items 47 as it does not contain instructions on age before which achievement of one their parents or the legal representative gives the informed voluntary consent to medical intervention or refusal of it;

6) to develop and include in granting Rules the medical organisations of paid medical services the list of kinds of the medical services which reception is probably independent on achievement of certain age;

7) to make changes to the grazhdansko-remedial legislation of the Russian Federation regarding reduction of terms of consideration as civil legal proceedings of claims about protection of the rights of minor patients and to provide possibility of immediate execution of decrees on them;

8) legislatively to fix system of conducting the medical documentation in the electronic form and full access to it patients at the age of 14∑18 years, the parent (it) and other legal representatives of minors, and also bodies of guardianship, public organisations with the consent of the minor patient aged is more senior 14 years and (or) its legal representatives;

9) to expand for the purpose of increase of efficiency of rendering of free medical aid and paid medical services circle of the subjects allocated with legal powers on representation of legitimate interests of minors in sphere of health protection and rendering of medical aid, legislatively having fixed right of minor patients is more senior 14 years and the minor patients sick of a narcotism, reception of the information on a condition of its health, volume of medical intervention is more senior 16 years on definition in the informed voluntary consent to medical intervention at own discretion any capable subject as the legal representative to whom they trust representation of the interests in mediko-legal relations;

10) legislatively to define list of the data, which medical organisations are obliged to give to guardianship bodies at realisation of medical intervention to the minor patient.

In work other changes directed on perfection of the legislation, regulating civil-law position of minor patients are offered also.

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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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