Myronova H. Private-law Regulation of Personal non-property Relations in the Sphere of Medical Care Provision)

In the thesis, which is based on the established provisions of the theory of private law, the generalization of modern legal standards in the field of human rights, the analysis of national legislation, practice of the European court of human rights, national court decisions, the concept of personal autonomy in the sphere of medical care provision is developed. The doctrinal and normative suggestions for updating civil legislation and improving the practice of regulating the studied relations in Ukraine are formulated. The concept represents a modern integrated model of regulation of the studied relations by means of private law and defines the strategic goals of updating the civil legislation of Ukraine. The main elements of this concept are: the dialectics of the private and public legal methods of regulating the relations in medical sphere; features and limits of application of the dispositive method; systematics and criterion of the hierarchy of sources of private law regulation; particularities of private law regulation of voluntary will of the patient; legal grounds and limits of private law initiative and autonomy of the doctor; modern means of private law regulation of personal non-property relations in the provision of medical care to individuals with disabilities; features of application of individual and contractual regulation of personal non-property relations in the field of medical care. Theoretical-methodological and practical aspects, modern tendencies of influence of private law means on the investigated relations are analyzed. The objective regularity of expanding the scope of application of the method of private law in the regulation of personal non-property relations in terms of expanding the range of participants, sources and relationships covered by the principles of dispositiveness and free will is substantiated. The need to revise the current doctrine of legal personality of incapacitated individuals is argued. And new legal model, which is based on the recognition in legal doctrine and legislation of the independence and autonomy of individuals declared incapable in procedural relations and personal non-property relations in the field of medical care, is offered. The necessity of developing the doctrine of special medical capacity and of introduction of special procedures for recognizing an incapable person as competent / incompetent to make informed decisions regarding the provision of medical care is substantiated. It is proposed to legislate the powers of an individual to choose the methods of medical intervention in the future by committing an unilateral deal or agreement. It is determined that the patient’s previous orders (previous medical directives) are any of legally recognized deals (written or oral, unilateral or multilateral) that express will regarding future medical intervention. Given the objective trend of natural narrowing of the boundaries of state intervention in the private lives of individuals an objective expansion of the boundaries of individual and contractual regulation of personal non-property relations in the field of medical care is established. In particular, this applies to the possibility of concluding deals not provided by law. It is proposed to legislate the powers of an individual to choose the methods of medical intervention in the future by committing an unilateral deal or agreement. It is determined that the patient’s previous orders (previous medical directives) are any of legally recognized deals (written or oral, unilateral or multilateral) that express will regarding future medical intervention. These agreements are concluded in the case of inability in the future of an individual to make informed decisions or notify them. As a result of the research, new scientific provisions are obtained, they enrich the theory of private law and the doctrine of private law regulation of relations in the field of medical care. Given the urgency of ratification of The Convention on Human Rights and Biomedicine (1997) by Ukraine, a number of patterns are formulated. New doctrinal approaches to strengthening the principles of dispositiveness of civil law regulation of patient autonomy and private discretion of the doctor and ensuring the right to free choice in the field of medical care for incapacitated individuals are proposed. This also applies to the expansion of the scope of contractual regulation of personal non-property relations in the field of medical care.