The thesis is devoted to the problem of criminal liability for improper performance of duties by a medical or pharmaceutical professional. The research studies the emergence of an institution of responsibility of medical staff for medical negligence.
The state of study of problems related to criminal liability for the improper performance of professional duties by a medical or pharmaceutical professional, as well as the genesis of domestic legislation on criminal liability for “medical” crimes, is analyzed.
The author provides analysis of the criminal legislation of different countries concerning counteraction against improper performance of professional duties by a medical or pharmaceutical professional.
Legally significant objective and subjective signs of improper performance of professional duties by a medical or pharmaceutical professional are established, which allows distinguishing this crime from adjacent offenses.
It is noted that the generic object of this crime constitutes relations that are aimed at protecting life and health of a person. At the same time, the main direct object of the specified crime is social relations regulating the procedure for the performance by a medical or pharmaceutical professional of his/her professional duties towards the patient.
The victim of a crime envisaged by the Art. 140 of the Criminal Code of Ukraine, is a patient whose life and health are protected by the state. However, the identification of the concepts “patient” and “sick person” is not feasible, since the first term should be attributed to the legal status of a person, and the second one – to the biological status. Therefore, the author offers to replace the legal term “sick person” with “patient” in the disposition of the indicated article.
In the analysis of the objective side, it is determined that the term “improper” is an opposition, a denial of the proper performance of professional duties by a professional, that is, treatment, performed according to all accepted rules of medical art. It is substantiated that in the context of Art. 140 of the Criminal Code of Ukraine it is more appropriate to use the concept of “medical care” which includes medical services.
The subject of improper performance of a medical or pharmaceutical professional’s duties is special. The functional affiliation of the subject of this corpus delicti is a determining feature of this element of the crime. The latter is determined by the availability of special education and the pursuit of professional medical or pharmaceutical activities on a legal basis (labor or civil contract, etc.).
The crime is characterized by a double form of guilt, since different mental attitude of perpetrator to his own act and to the consequences is possible. Attitude to an act in this corpus delicti can be characterized as intent and carelessness, whereas the consequences of the attitude are always careless and can be expressed in the form of negligence and self-confidence. In general, an inappropriate performance by a medical or pharmaceutical professional of his duties is a careless crime.
The thesis determines main criteria for delimiting the improper performance of professional duties by a medical or pharmaceutical professional from related offenses, as well as distinction from related phenomena, in particular from treatment of an obviously healthy person, as well as harm caused by improper performance of professional duties by a psychologist during the provision of psychological assistance.
Peculiarities of the punishment for the improper performance of professional duties by a medical or pharmaceutical professional and determination of punishment by court, as well as the judicial practice of applying the provisions of criminal law on the release of medical professionals from liability or their release from the actual serving of sentences, are disclosed.
The author proposes to improve the current legislation in the field of criminal liability for improper performance of professional duties by a medical or pharmaceutical professional.
