The history of the development and formation of paid medical services Текст научной статьи по специальности «Фундаментальная медицина»

УДК 34

Kushnereva E.V.

Graduate Student, Faculty of Law, Russian State Social University,

Moscow Кушнерева Е.В. магистрант, юридический факультет, Российский государственный социальный университет,

Москва

E-mail: kushnereva.elena@mail.ru

The history of the development and formation of paid medical services История развития и становления возмездного оказания медицинских услуг

Abstract: The article considers the stages of development and formation of paid medical services. The analysis of regulatory legal acts is carried out, starting from the first half of the 11th century until now. The provisions of the current legislation regulating the provision of paid medical services by public and private medical organizations are described in detail.

Аннотация: В статье рассмотрены этапы развития и становления возмездного оказания медицинских услуг. Проводится анализ нормативно-правовых актов, начиная с первой половины XI в. до настоящего времени. Подробно характеризуются положения действующего законодательства, регулирующие возмездное оказание медицинских услуг государственными и частными медицинскими организациями.

Keywords: medical service; history of development; legislation; paid services.

Ключевые слова: медицинская услуга; история развития; законодательство; возмездные услуги.

Medical services in Russia can be provided to a patient both on a paid basis (under a paid services agreement, a voluntary medical insurance agreement) and free of charge (under the compulsory medical insurance system).

Despite the fact that paid medical services have been actively developing in Russia only since the beginning of the 90s, the first mention of paid medical services is already present in the code of laws of the first half of the 11th century — Russian Pravda [1]. According to Article 2 of Russkaya Pravda, if «whoever is beaten to the point of blood or bruises ... and cannot avenge himself, then take 3 hryvnias for him and pay the doctor for the insult», that is, the doctor was supposed to pay for the treatment of beatings.

The next normative act regulating the collection of fees for medical services was the Senate Decree of 1754. On the establishment of schools for teaching midwifery, which provided for both payment for the work of midwives during childbirth, and directly to the treasury of the highest medical administrative body -the Medical Office - for the maintenance of the «woman's business» [2].

Paid medical services provided by doctors were regulated only in 1789. The charter adopted by Catherine II, according to which the doctor had the right to demand decent remuneration from patients for his work. At the same time, the Charter provided that doctors in the public service did not have the right to charge patients for their services [3].

The Medical Charter, adopted in 1857 (then revised in 1892 and 1905), is the result of the codification of the legal norms governing medical activity. The provisions of the Charter provided for the admission of a doctor to medical practice, the accountability of free practitioner doctors to the local medical administration and the right of the latter to involve them in public service if necessary (Chapter V «On Volunteer Doctors»). The right to engage in free practice was granted to Russian citizens and foreigners with a diploma or certificate from Russian universities, the Military Medical Academy and women's medical schools.

It should be noted that private medical practice in Russia during this period developed under the influence of two factors that acted in the same direction: firstly, the low quality of medical care in state medical institutions; secondly, the low salaries of doctors in the public service [4].

Since the beginning of the event in 1864, Stolypin P.A. Zemstvo reform prevails free medical care by Zemstvo doctors, the demand for private medical services is gradually declining. Payment for treatment by a zemstvo doctor was considered as a «tax on misfortune», which cannot be paid when a peasant falls ill

[5].

From the end of the 19th century the situation in the field of medical practice has changed significantly due to the development of specialization. Private highly profitable general and specialized (dental, eye, gynecological and other) medical institutions began to open. According to the Charter of a private hospital in 1903, local residents and visitors could use, for a moderate fee, simultaneous medical consultations of two, three or more doctors and even specialist professors [6].

One of the first documents adopted by the Soviet government in the field of medical care is the Decree of the All-Russian Central Executive Committee, the Council of People's Commissars of the RSFSR of 01.12.1924 «On the professional work and rights of medical workers» [7].

According to the document, every medical worker engaged in private practice is obliged to «keep a record of patients in special books, laced and sealed by the health department». The amount of remuneration received is recorded in a separate book, laced and sealed by the bodies of the People's Commissariat of Finance, presented at the request of financial inspectors (paragraph 7 of the Decree).

Subsequently, medical legislation in the USSR developed on the basis of a comprehensive regulatory act of the Fundamentals of Legislation of the USSR and the Union Republics on Healthcare dated 19.12.1969, which guarantees publicly available qualified and free medical care, which is provided by state health care institutions [8].

Thus, until the collapse of the USSR, the basis of health care in the Soviet period was the state system of medical care.

The first legal act adopted after the collapse of the USSR, which proclaimed the right of citizens to health care and medical care and secured the development of a

private healthcare system along with the state and municipal system, is the Constitution of the Russian Federation (Article 41) [8].

Recognition of the fundamental role of protecting the health of citizens as an essential condition for the life of society, the responsibility of the state for preserving and strengthening the health of citizens predetermines the content of the legal regulation of relations related to the use of this constitutional right, the nature of the norms governing the provision of medical care to citizens. The coordination of health care issues, which is jointly administered by the Russian Federation and its constituent entities, is regulated by federal laws and laws adopted in accordance with them and other regulatory acts of the constituent entities of the Russian Federation (paragraph "g" part 1 article 72, part 2 article 76 of the Constitution RF) [9].

Subsequently, the Fundamentals of the legislation of the Russian Federation on the protection of the health of citizens were adopted, establishing legal, organizational and economic principles in the field of health protection and in which the legislator secured the right of citizens to additional medical and other services based on voluntary medical insurance programs, as well as at the expense of enterprises, institutions and organizations, their personal funds and other sources not prohibited by the legislation of the Russian Federation (Article 20) [10].

Thus, paid medical services provided to the population by medical institutions, in accordance with the Fundamentals of the legislation of the Russian Federation on the protection of the health of citizens, were in addition to the guaranteed volume of free medical care and were provided in the following cases:

— persons who do not have the right to receive free medical care in accordance with the compulsory medical insurance program, targeted programs, etc. (for example, foreigners in the absence of relevant interstate agreements);

— assistance for types of services in excess of those provided for by the treatment standards, i.e. if the technology set forth in the standards does not provide for the use of certain methods of diagnosis or treatment, then they can be performed at the request of the patient on a paid basis;

— by types of specialized care that are not mandatory for this medical institution, taking into account its specialization;

— when creating improved service conditions that are not directly related to medical measures (providing care at home, except in cases where the patient is unable to visit a medical institution due to health reasons and the nature of diseases, etc.);

— instead of the traditionally provided — by alternative methods that have additional consumer properties, but are not financed under the compulsory health insurance program or from the budget (complex methods of treating traditional diseases that require additional costs);

— are not included in targeted programs and lists of expensive specialized medical care financed at the expense of the state, etc.

The procedure and conditions for the provision of paid medical services were determined by the Rules for the provision of paid medical services to the population by medical institutions [11], as well as other regulatory legal acts, including documents of the Ministry of Health and Social Development, health authorities of the constituent entities of the Russian Federation. In accordance with the above Rules, paid medical services are provided to the population by medical institutions in the form of preventive, medical diagnostic, rehabilitation, prosthetic, orthopedic and dental care under contracts with citizens or organizations for the provision of such services, that is, those types of medical care that are included in the Program state guarantees for the provision of free medical care to citizens of the Russian Federation are not included. The rules stipulate that state and municipal medical institutions provide paid medical services to the population with special permission from the relevant health authority, which ensures control over the ability of the medical institution to provide qualified assistance. Paid medical services are provided by healthcare institutions to citizens under an agreement to which the rules for the provision of paid services of Chapter 39 of the Civil Code of the Russian Federation "Paid provision of services" apply [12].

Thus, paid medical services are a constitutionally legitimate addition to the legally guaranteed volume of free medical care for Russian citizens. It should be noted that despite the consolidation in the Constitution of both public and private medicine, until 2012 the provision of paid medical services was carried out only by healthcare institutions under the jurisdiction of the federal, state or municipal authorities. In 2012 the fundamentals of the legislation of the Russian Federation on the protection of the health of citizens became invalid due to the adoption of the Federal Law «On the Fundamentals of Protecting the Health of Citizens in the Russian Federation» — hereinafter referred to as the Law on Health Protection, which provides for the possibility of providing paid medical services both public and private organizations [13].

At the same time, state and municipal health care institutions have the right to provide paid medical services only as additional (in excess of the state-guaranteed volume of free medical care) subject to certain conditions:

— those medical services that are not included in the state-guaranteed volume of free medical care can be provided as paid medical services;

— when providing paid medical services, the conditions and accessibility of free medical care to citizens should not deteriorate;

— state (municipal) healthcare institution must obtain a special permit to carry out activities for the provision of paid medical services.

According to paragraph 1 of clause 8 of the Rules for the provision of paid medical services by medical organizations, approved by Decree of the Government of the Russian Federation of October 4, 2012 N 1006 [14], the procedure for determining prices (tariffs) for medical services provided by medical organizations that are budgetary and state-owned state (municipal) institutions, is established by the bodies exercising the functions and powers of the founders. For example, clause 3 of the procedure for determining prices (tariffs) for medical services provided by medical organizations that are budgetary and state-owned state institutions under the jurisdiction of the Ministry of Health of the Russian Federation, approved by Order of the Ministry of Health of Russia dated December 29, 2012 N 1631n, establishes

that prices (tariffs) for medical services are established taking into account the coverage of the costs of institutions for the provision of these services, while it is recommended to provide for a profitability of no more than 20 percent [15]. Medical organizations of other organizational and legal forms determine the prices (tariffs) for the paid medical services provided on their own (paragraph 2, clause 8 of the Rules for the Provision of Paid Medical Services by Medical Organizations N 1006).

When concluding an agreement for the provision of paid medical services, the consumer (customer) is provided in an accessible form with information on the possibility of obtaining the appropriate types and volumes of medical care without charging a fee under the program of state guarantees of free provision of medical care to citizens and the territorial program of state guarantees of free provision of medical care to citizens.

The consumer's refusal to conclude a contract cannot be the reason for reducing the types and volumes of medical care provided to such a consumer without charging a fee within the framework of the program and the territorial program.

Paid medical services may be provided to the full extent of the standard of medical care or at the request of the patient in the form of individual consultations or medical interventions, including in an amount exceeding the scope of the performed standard of medical care (paragraph 4 of article 84 of the Law on the Fundamentals of Health Protection, paragraph 10 of the Rules provision of paid medical services by medical organizations).

When providing paid medical services, a medical organization must receive duly executed documents from the patient, namely:

— voluntary informed consent of the patient to the provision of medical services;

— contract for the provision of paid medical services.

In accordance with paragraph 8 of Article 84 of the Law on Health Protection, the provisions of the Law of the Russian Federation of 07.02.1992 N 2300-1 «On Protection of Consumer Rights» apply to relations related to the provision of paid medical services [16]. This Law provides not only additional rights of consumers, but

also a special procedure and amount of responsibility of the service provider. At the same time, imperative norms are used to determine the content of the contract, which is determined by the economic inequality of consumers and performers. Paragraph 17 of the Rules establishes a list of mandatory terms of the contract for the provision of paid medical services. These include conditions on the list of medical services provided, their cost, the term and procedure for their payment, and other conditions determined by agreement of the parties. At the same time, the condition on the quality of the medical services provided should also be included in the mandatory conditions, which follows from paragraph 27 of the Rules, by virtue of which the contractor provides medical services, the quality of which must comply with the terms of the contract, and in the absence of conditions on their quality in the contract, the requirements, for the respective type of service.

For non-fulfillment or improper fulfillment of obligations under the contract, the performer shall be liable under the legislation of the Russian Federation (clause 31 of the Rules). According to Article 14 of the Law on the Protection of Consumer Rights, paragraph 9 of Part 5 of Article 19 of the Law on Health Protection, harm caused to the life or health of the consumer as a result of the provision of low-quality paid medical services is subject to compensation by the contractor in full.

Along with compensation for harm caused to life and health, the patient has the right to compensation for non-pecuniary damage (Article 15 of the Consumer Rights Protection Law).

Currently, the Government of the Russian Federation is considering a draft resolution «On approval of the Rules for the provision of paid medical services by medical organizations», which was prepared in pursuance of the instructions of the Deputy Chairman of the Government of the Russian Federation T.A. Golikova on the establishment of an exhaustive list of grounds for the provision of paid medical services to the population.

The draft resolution was developed on the basis of the Rules for the provision of paid medical services by medical organizations, approved by the Decree of the Government of the Russian Federation of October 4, 2012 № 1006, taking into

account the development of the provision of paid medical services. The changes being introduced will make it possible to more clearly distinguish between the conditions for the provision of medical care within the framework of territorial programs and paid medical services, as well as to prevent the replacement of free medical services with paid ones.

References

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2. On the establishment of schools in St. Petersburg and Moscow for teaching midwifery; on supplying the capital and cities with grandmothers tested in this art under the name of jurors // The Complete Collection of Laws of the Russian Empire, since 1649. St. Petersburg : Printing House of the II department of His Imperial Majesty's Own Chancery, 1830. Vol. XIV : 1754-1757, No. 10.214. pp. 55-57.

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6. Charter of a private hospital with consultations of a doctor M. Shlyaposhnikov, in Kharkiv. 1903. pp. 3-9.

7. Decree of the All-Russian Central Executive Committee and the Council of People's Commissars of the RSFSR of December 1, 1924 "On professional work and the rights of medical workers" (RSFSR SU, 1924, N 88, Article 892).

8. USSR Law of 19.12.1969 N 4589-VII "On approval of the Fundamentals of Legislation of the USSR and the Union Republics on health care" // "Vedomosti VS USSR", 1969, N 52, Article

466.9. Constitution of the Russian Federation (adopted by popular vote 12.12.1993) // "Rossiyskaya Gazeta", N 237, 25.12.1993.

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