We can put everything up against the interests of the State, but the rule of morality and law deserves to be protected, respected and safeguarded in any case. This is what should run as a “golden thread” through all of the activities of public authorities with a view to creating a reliable system, particularly, a regulatory one, which is aimed at the observance, protection and safeguarding of human rights. Medical care is a vulnerable area due to high risks inherent in medical practice and the complexity of human body, as well as to permanent transformations of the healthcare sector, and this engenders new challenges, conflicts and gaps starting from law-making and to implementation of law and application of law. The study based on the cross-section of medical care is very illustrative and is amplified by severity of consequences, sensitivity of values, and complexity with which justice can be reinstated.

The article aims at giving a clear outline to the challenging issues stemming from implementation and application of law through the prism of legal relations in the area of medical care, and also at developing algorithms and practical recommendations for resolving the same with the possibility of improvement of Ukraine’s current legislation with regard to questions of law.

The scientific research uses the following methods of scientific cognition of legal phenomena: formal legal method – for a comprehensive characterization of legislation in the analyzed area; interpretation of law – to clarify the content of relevant legal provisions and the essence of evaluative concepts; and study of legal practice – to make a generalization of law application practice.

The author examines separate segments within the legal panel of activities of public authorities which relate to pre-trial investigation and court proceedings in medical cases. The need for regulatory improvements has been identified, inter alia, amendments to: article 70 of the the Civil Procedural Code of Ukraine (CPC of Ukraine), article 65 of the the Criminal Procedural Code of Ukraine (CrPC of Ukraine), Order of the Ministry of Healthcare of Ukraine “On Improvement of the Children Pathoanatomical Service”. The author establishes that all issues inherent in execution of sentence in criminal proceedings, as far as civil lawsuit is concerned, should be considered by the court according to the rules of CrPC of Ukraine, with the use of the provisions of CPC of Ukraine to the mentioned legal relations, provided that the latter do not contradict the fundamental principles of criminal procedure. It is established that if at the stage of execution of article 290 of CrPC of Ukraine no access is provided to documents which were studied by an expert, including medical documentation, this does not automatically challenge the validity of the expert’s opinion. The study was made “diffusively”, given that there are many general issues which were projected onto medical cases, and there are many controversies which are engendered by the specific plane and penetrate into all other types of legal relations. This interpenetration makes it possible to use the principle of the European Court of Human Rights “relative to all”: solving of an issue in one area should be “reflected” in others ones, thus guaranteeing efficient human rights protection.

Bibliography

Translated books

1. De Sal’via M, Precedenty Evropejskogo Suda po pravam cheloveka. Rukovodjashhie principy sudebnoj praktiki, otnosjashhejsja k Evropejskoj konvencii o zashhite prav cheloveka i osnovnyh svobod. Sudebnaja praktika s 1960 po 2002 g. [Precedents of the European Court of Human Rights. Guidelines for Court Practice Relating to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Court Practice from 1960 to 2002] (per s fr, Juridicheskij centr Press 2004) (in Russian).

Journal articles

2. Bessarab N, ‘Kompetentnyi sud yak orhan nalezhnoi yurysdyktsii’ [‘Competent Court as the Body of Proper Jurisdiction’] (2014) 53 Aktualni problemy polityky (in Ukrainian).