OBJECTIVE ASPECT OF CRIME COMPONENTS, PROVIDED FOR IN PART 1 OF ARTICLE 139 OF THE CRIMINAL CODE OF UKRAINE 
Lemekha R.I. 
Senior Partner, Bar Association “Lemekha & Partners”, 
Senior Lecturer, Medical Law Department 
of the Post-Graduate Education Faculty
Danylo Halytskyi Lviv National Medical University

Treating activity of medical workers foresees the influence on a person, that is why the use of superpotent, aggressive, various dangerous means of diagnosis and treatment is typical for it. Invasive medical intervention also means disruption of anatomical continuity of organs or tissues of the human body, intervention in their physiological functions, causing pain, suffering, psychological stress, temporary disability, etc. At the same time, cases of careless or negligent attitude of medical workers to performing their professional duties, one of which is the failure to provide medical aid to a patient without a valid reason, taking into account that they are obliged, in accordance with the established rules, to provide it, take on special negative resonance. Relevant actions undermine the authority of medical institutions and their employees, as well as citizens’ belief in the availability, timeliness, appropriateness and effectiveness of medical care.
In addition, the cases of bringing medical workers to criminal liability (and especially rendering of a judgment of conviction on them) are extremely rare; that fact does not allow providing effective protection of public relations in the sphere of medical activity, in the part of timely provision medical aid to a patient, whose life or health is in danger. Such situation leads to the conclusion that not all crimes committed by medical workers, but only some of them, are included in the statistical reporting. Instead, the rest of them are still unregistered and constitute hidden criminality. Accordingly, high level of latency of the corresponding group of crimes stimulates their multiplication through the leveling of the principle of unavoidability of liability.
It should be noted that the main component of the crime “failure to provide medical care to a patient by a medical worker” is formal. It means that the obligatory feature of its objective aspect is only a socially dangerous act in the form of inaction, which consists in the unreasonable failure to provide medical care to a patient by a medical worker. Qualification of the crime provided for in Part 1 of Article 139 of the Criminal Code of Ukraine foresees the need to establish two criteria: objective (presence of a duty to act in a certain way) and subjective (ability to act in a certain way.)
At the same time, in practice, medical institutions and their higher agencies approve a number of rules (internal instructions) that are based on laws, guidelines of the Ministry of Health, recommendations of World Health Organization, materials of conferences, approved regional standards of diagnosis and treatment. Taking into account the above, there may arise a situation where the norms referred to in Part 1 of Article 139 of the Criminal Code of Ukraine as “established rules” become hardly accessible to reach conclusions in terms of the hierarchy of norms and the distinction between the doctrine and the provisions of law. In addition, it is obvious that determination (regulation) of the rules of medical worker behaviour during the provision of medical care to a patient in each particular case is impossible, since situations when an atypical course of the disease (for example, if the patient has an allergy or an increased hereditary sensitivity to some nonspecific stimuli) can be observed. At the same time, the relevant normative legal documents are, so to say, a kind of guideline to be followed when providing medical care to a patient. It is necessary to underline that the scope of obligations of a medical worker to provide medical care is specified in accordance with the needs of a patient in a particular type of treatment, as well as by the situation in which this need arises.
The key point in solving the issue of bringing a medical worker to criminal liability for an offence under Part 1 of Article 139 of the Criminal Code of Ukraine is to find out whether he or she was able to provide medical care to a patient. In other words, if there were no valid reasons for providing professional medical aid. In turn, the valid reasons, which exclude criminal liability for the failure to provide medical care to a patient by a medical worker, should be the following: force majeure (ecological catastrophes, earthquakes, etc.), state of extreme necessity (for example, the need to provide first aid to a more seriously injured person), illness of a medical worker, lack of qualification, knowledge, equipment, or medication for delivery of the particular type of medical aid, etc.
From the analysis of the disposition of Part 1 of Article 139 of the Criminal Code of Ukraine, it follows that the objective aspect of failure to provide medical care to a patient by a medical worker is characterized only by inaction of the latter. Examples of failure to provide medical care to a patient are often referred to as a refusal to visit a patient on call, to provide medical examination of a patient, to admit the patient to a medical institution, to intervene in the course of the disease, to hospitalize the patient, to arrange medical supervision for the patient; failure to provide medical care to a patient staying at a medical institution, etc.
In this case, it is necessary to clarify the issue whether so-called “complete” inaction (complete refusal to help the patient) is necessary for the assessment from the point of view of Criminal Law medical worker as guilty under Part 1 of Article 139 of the Criminal Code of Ukraine, or only “partial” inactivity (non-performance of a special act required in this typical situation) is enough to do so. Per se, admission a patient, complaining of a pain in the chest, to a medical institution, as well as his or her examination (in other words, carrying out a series of actions) without conducting compulsory additional studies (for example, cardiogram, echocardiography, etc.) does not indicate the performance of duties by a medical worker.
It should be noted that the characteristic feature of the objective aspect of the crime, provided for in Part 1 of Article 139 of the Criminal Code of Ukraine is the situation of committing a crime, in which a person should be considered to be ill (to be in a life-threatening situation and conditions dangerous to health) and require medical care. This position follows directly from the analysis of the disposition of the article, which indicates the possibility of occurring heavy consequences for the patient that clearly determines the tendency in deterioration in his or her condition in the case of failure to provide medical care.
The need in medical care can arise both within and outside a medical institution. In this case, it is necessary to clarify whether a medical worker who witnessed an accident and, having the opportunity to provide first medical aid, did not do so, shall be criminally liable for the commission of a crime under Article 139 of the Criminal Code of Ukraine. It seems that it is the case because under Article 139 of the Criminal Code of Ukraine failure to provide medical care to a sick person, who is considered to be unhealthy and needs medical care, is criminalized. Accordingly, if the criminal inaction of a medical worker only with respect to the patient is considered to be criminalized in Article 139 of the Criminal Code of Ukraine, then in such a case, failure to provide a medical care to an ordinary citizen by a doctor who became a witness of the accident, would not receive a criminal assessment according to the relevant article. Such state of art is due to the fact that the patient is a person who applies for the provision of preventive, diagnostic, medical or rehabilitation-restoration assistance to a health care institution or a medical worker, regardless of the state of health, or voluntarily agrees to conduct a medical-biological experiment. Consequently, this person becomes a patient from the moment of registration in the health care institution. 
Thus, the objective aspect of crime components provided for in Part 1 of Article 139 of the Criminal Code of Ukraine is characterized by a socially dangerous act characterized by a form of criminal behaviour in the form of inaction, which is expressed in the complete refusal to provide medical care to a patient, and in failure to provide medical care in the scope that is necessary in a particular situation. In this case, the obligatory feature of the objective aspect of the analyzed crime is the situation of its commission, which should be such that a person is in the disease state and needs medical care.