What are the valid reasons for a doctor to refuse to treat a patient?

Law and common sense

– Alexey, after all: can a doctor refuse a patient or not?

Maybe. Another thing is that there are many nuances that not everyone is able to understand. Although the legislation of the Russian Federation and law enforcement practice have long resolved this issue. In accordance with Article 7 of the Constitution, the Russian Federation is a social state that protects people's health. Article 41 of the Constitution of the Russian Federation indicates that everyone has the right to health care and medical care. It is very important that in our country, from the point of view of the law, human health is recognized as the highest inalienable good, without which many other benefits and values lose their meaning. This understanding of health is the official position of the highest court - the Constitutional Court of the Russian Federation. Which indicates that, by proclaiming the right to health care and medical care as one of the fundamental constitutional rights, the state is obliged to implement a set of measures to preserve and strengthen the health of the population, including through the development of state, municipal and private health care systems, establishing legal guarantees for everyone to receive the necessary medical and social assistance.

This position is reflected in the already textbook ruling of the Constitutional Court dated June 6, 2002 No. 115-0 “On the refusal to accept for consideration the complaint of citizen E.Z. Martynova.” The woman complained that she was unreasonably denied by the medical organization to continue treatment and demanded compensation for losses caused. In its ruling on Martynova’s complaint, the Constitutional Court pointed out the inadmissibility of refusal of medical care and the possibility of compensation for losses. It is important that full compensation for losses takes into account the expenses that the person whose right is violated has made or will have to make to restore the violated right. In this definition, the Constitutional Court explains that refusal of medical care is also not consistent with the essence of medical professional activity, medical duty, moral, ethical and legal standards defining the responsibilities of a doctor in relationships with patients and the rights of patients.

– So it turns out that a “state” doctor does not have the right to refuse a patient?

– Almost 9 years after the appearance of this definition of the Constitutional Court, the Federal Law of November 21, 2011 No. 323-FZ “On the fundamentals of protecting the health of citizens in the Russian Federation” was adopted. According to paragraph 7 of Art. 4 of this law, one of the basic principles of health protection is “the inadmissibility of refusal to provide medical care.” Article 11 is devoted to the inadmissibility of refusal to provide assistance, according to which:

Refusal to provide medical care in accordance with the program of state guarantees of free provision of medical care to citizens and charging for its provision by a medical organization participating in the implementation of this program and by medical workers of such a medical organization are not allowed.
Emergency medical care is provided by a medical organization and a medical worker to a citizen immediately and free of charge. Refusal to provide it is not allowed.
For violation of the requirements provided for in parts 1 and 2 of this article, medical organizations and medical workers are liable in accordance with the legislation of the Russian Federation.”

Thus, a medical organization that participates in the compulsory medical insurance system does not have the right to refuse medical care to a patient. And this is the so-called imperative (not subject to change) requirement of the law. The reason for this mandatory requirement is that the state guarantee program is a mechanism for implementing the guarantee of health protection and free medical care laid down in the Constitution of the Russian Federation. Allowing the possibility of refusing to provide medical care to a patient under the state guarantee program would be contrary to the constitutional rights of citizens to health care and free medical care.

Do not be offended or the rights of a pregnant woman

A working woman can get an insurance policy at her place of work (it doesn’t matter whether it’s a private company or a government agency), and a non-working woman can get it at her place of residence.
Schemes of dynamic observation of pregnant and postpartum women (approved.

“All pregnant women, starting from the first appearance regarding pregnancy, and postpartum women are subject to dynamic observation”

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Firstly, women who register in the early stages of pregnancy (up to twelve weeks) are paid an additional lump sum benefit. A person faced with the Russian healthcare system often feels completely helpless. Indifference, bureaucratic delays, crazy lines outside offices... It’s not easy for a healthy person to cope with all this, let alone for a sick person. In such situations, the phrase “patients' rights” seems like a mockery. However, these rights still exist in our country, and some of them can be fought for.

Everything is on trial

– Do private owners have more freedom in this sense?

Medical organizations that provide paid medical services also cannot refuse assistance to the patient, since they enter into a public contract (clauses 1, 3 of Article 426 of the Civil Code of the Russian Federation). And this position was also reflected in the above-mentioned ruling of the Constitutional Court on the complaint of Martynova E.Z. As the Constitutional Court indicated, the paid provision of medical services represents the implementation of the freedom of economic activity guaranteed in the Russian Federation, the right of everyone to freely use their abilities and property for entrepreneurial and other economic activities not prohibited by law (Article 8, Part 1; Article 34, Part 1, Constitution of the Russian Federation) and is carried out by medical institutions within the framework of relevant agreements. To such agreements, as follows from paragraph 2 of Art. 779 of the Civil Code of the Russian Federation, the rules of Chapter 39 “Paid provision of services” of the Civil Code of the Russian Federation apply. In turn, Russian legislation classifies the provision of paid medical care as entrepreneurial activity carried out under public control. Agreement on the provision of paid medical services (medical care) in accordance with clause 1 of Art. 426 of the Civil Code of the Russian Federation is recognized as a public agreement, that is, an agreement concluded by a commercial organization and establishing its obligations to provide services that such an organization, by the nature of its activities, must perform in relation to everyone who turns to it. At the same time, a commercial organization does not have the right to give preference to one person over another with regard to concluding a public contract, except in cases provided for by law and other legal acts. An organization’s refusal to conclude a public contract if it is possible to provide the consumer with the appropriate services is not allowed, and if it evades concluding a public contract, the other party has the right to go to court with a demand to compel the conclusion of the contract and for compensation for losses caused by an unjustified refusal to conclude it (clause 3 Article 426 and paragraph 4 of Article 445 of the Civil Code of the Russian Federation). The mandatory conclusion of a public contract, which is an agreement on the provision of paid medical services, if there is an opportunity to provide the corresponding services, also means the inadmissibility of the unilateral refusal of the contractor to fulfill obligations under the contract if he has the opportunity to fulfill his obligations (provide the person with the corresponding services), since otherwise In this case, the requirement of the law for the mandatory conclusion of a contract would be deprived of any meaning or legal significance.

What punishment awaits a specialist for illegal refusal?

If for some reason the doctor did not carry out the necessary therapeutic actions, articles of the Criminal Code 124 and 293 may be applied to him. According to legal norms, Art. 124 of the Criminal Code, he may be fined, subject to compulsory labor measures, or placed under arrest. When the reason for inaction is a consequence of death, a criminal sentence of 4 to 7 years is provided. The same penalty is applied in case of serious damage to health, due to which the patient loses his ability to work or becomes disabled.

It is important to know! Article 293 establishes the crime of negligence, while Art. 124 provides for sanctions depending on the possible consequences. Both types of articles may result in penalties that exclude the right to engage in medical practice.

According to Article 124 of the Criminal Code, the following types of damage to health can be caused to a patient:

consequences leading to partial or complete loss of ability to work, due to which the patient ends up in a wheelchair;
medical actions leading to death;
death of more than 2 people.

Rule of Three

– Where then is the doctor’s right to refuse treatment and how does it relate to constitutional rights and principles of health protection?

Part 3 art. 70 of the Federal Law “On the Protection of Citizens’ Health” indicates that the attending physician, in agreement with the relevant official (head) of a medical organization (division of a medical organization), may refuse to monitor the patient and treat him, and also notify in writing of his refusal to carry out artificial termination of pregnancy, if refusal does not directly threaten the life of the patient and the health of others. Thus, there is a legal opportunity to refuse treatment and observation of the patient. But, as we have found out, it should not contradict constitutional rights and general principles.

In the legal relationship with the constitutional norms on the right to health protection and medical care, the general principle of the inadmissibility of refusal of medical care, the implementation of the doctor’s right to refuse treatment has important conditions: “In the event of the attending physician’s refusal to observe and treat the patient, as well as in the case of notification in writing about the refusal to carry out an artificial termination of pregnancy, the official (head) of the medical organization (division of the medical organization) must organize a replacement of the attending physician.” Thus, the attending physician has the right to refuse the patient, but under three conditions: 1) the refusal must be agreed upon with an official of the medical organization; 2) refusal should not pose a threat to the patient’s life or the health of others; 3) the medical organization must immediately organize a replacement of the attending physician.

Hospital refusal to attach a citizen

The norms of Federal legislation require serious revision, since in a number of cases they contradict each other. While granting the right to citizens to choose any medical clinic (Article 21), at the same time there is a norm of separation on a territorial basis. Its essence is as follows:

the medical organization receives only persons residing or temporarily staying in a certain territory;
a person can obtain consent for treatment and examination if he works or studies in an organization attached to a given hospital institution.

Based on this, the doctor has the right to refuse patients who are served in another hospital. This fundamentally violates human rights, and based on these facts, appeals are made to the courts of appeal, according to which the plaintiffs are able to choose the desired clinic and obtain moral compensation.

How to bring the perpetrator to justice

To bring a medical professional to trial for inaction, negligence or incompetence, the victim can apply to the judicial authorities personally, or through his representative (relatives).

He will need to do the following:

Carry out a medical examination, on the basis of which the damage to health will be established. It is allowed to apply to both public and private institutions, but the latter must have the appropriate permission.
The applicant has the right to contact the clinic for compensation for moral damages. Refusal of material payments is grounds for going to court.
After contacting the judicial authorities, criminal proceedings begin in accordance with the situation that has arisen.

Based on these court proceedings, we can conclude that the patient is always in a privileged position compared to the medical staff. This explains the fact that he has no obligations to the specialist, and, if necessary, can change him without explaining his actions.

For a doctor, refusal is associated with the appearance of a negative opinion from colleagues, pressure from management, and in serious situations, a criminal case may be opened against him.

An example from judicial practice

A clear example is a case from judicial practice in which an emergency department doctor was prosecuted.

After a shift in the mine, citizen Petrov and his friends drank a fair amount of alcohol, which caused a fight, as a result of which he lost consciousness. Despite severe abdominal pain, the emergency room doctor did not attach any importance to this, and attributed the short-term loss of consciousness to the effects of alcohol.

After the injection of an anesthetic drug, the patient was sent home. He went to rest, he felt worse, the pain resumed, which is why he died in the morning as a result of extensive internal bleeding. The doctor made a mistake because he did not fully examine the patient and did not take into account that the effect of alcohol masks the clinical picture of acute pathological processes.

The doctor was charged with Article 124 of the Criminal Code of the Russian Federation and sentenced to 4 years in prison. In addition, he lost the right to practice medicine.