DOI: https://doi.org/10.25040/medicallaw2016.01.063
Med. pravo., 2016; 1(17): 63-71
UDC: 613:342.7 (477)
Head of the structural subdivision o the Department of State Registration, Ministry of Justice of Ukraine
Laws are enacted to regulate human behavior for the benefit of society. They are designed to prevent harm to others while protecting the rights of individuals. US Supreme Court Justice Oliver Wendell Holmes said that the law "is a magic mirror, wherein we see reflected not only our own lives but also the lives of those who went before us.” Chief Justice Marshall in delivering his opinion to the court in Marbury v. Madison said, "The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection. The government of the US has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish to remedy for the violation of a vested right."
Ukrainian legislation has been filled with substandard laws justified by the necessity to reform a wide range of aspects of public life. Participants of legal relations face the need to promptly master the executive legislation that does not conform with the law and cause conflict. This process requires a high level of legal competence of legal services and legal work.
At the same time, heads of enterprises without such services, healthcare in particular, face their problems alone.
Therefore, this study considers the general provisions of the legal work doctrine, the method of legal regulation, as well as topical issues of organizing legal work in health care institutions. The research of the nature of legal work in different spheres (health, education, etc.) will help to reveal its features.
On the basis of general theoretical concepts the following definitions were formed.
Legal work in a healthcare institution ensures the effective execution of legal norms during medical care. The legal work in government institutions, which provide health sector management, involves effective implementation of the law during the performance of his tasks and functions.
Thus, legal work is regarded as a legal instrument for the effective application and implementation of the law while the interests of private and public relations are met.
At the same time, legal services in health care institutions are represented by legal advisers, because there are no legal grounds for the creation of independent departments for legal support.
It is therefore proposed to revise the order of the Ministry of Health, which approves the staff regulations, so that the order complies with the needs of the healthcare sector and the actual legislation (the order did not pass the registration in the Ministry of Justice, and consequently is not a legal act and it is of a recommendation nature, or it has been illegally sent for execution without registration).
In the absence of an independent legal service or legal counsel the formation of the permanent or temporary legal work group becomes relevant.
The author points out that the purpose of the legal work in business is to minimize costs and increase profits according to the law. Also, the purpose of the legal work is to ensure the legal security of a business from baseless claims or administrative pressure from public authorities.
In health care, legal work should ensure the legitimacy of authorities and institutions, contractual discipline, identifying legal risks and managing them. Therefore, the implementation of legal work as a means of implementing the principle of legality depends on an understanding of the nature of legal work.
Formation of the optimal structure of the legal service contributes to the proper organization of current activities and improves the efficiency of healthcare institutions in their assigned tasks.
According to the author, due to the lack of proper attention to the organization of legal work in the healthcare sector, there is no uniform practice of processing patients’ data, there are recorded violations of human rights concerning the access to health care, illegal orders are issued, etc.
In turn, the means of improving the legal work in the health care is local regulation and standardization, integrated management system.
Fundamentals of the legal regulation of legal work are identified in the Common statute on the legal service approved by the Government.
The Common statute on the legal service regulates the activity of the legal services of public authorities, local state administrations and state-owned enterprises. In other words the scope of the legal regulation of the Common statute on the legal service does not cover all subjects of public relations.
The Common statute on the legal service has defined the principles of legal service: structural independence, direct accountability to the head and a clear specialization of functions.
These principles are not legally applied to utilities enterprises, as well as to private legal relations.
The author analyzes the results of legal work inspections in a healthcare institution and in a government institution, which provides health sector management, carried out by the Department of Justice in Kyiv region in 2014, to establish the state of the legal work.
The results of legal work inspections showed a quasi-independence of healthcare institutions. In reality, they are under the direction of a structural subdivision of the regional state administration which manages healthcare sector.
Violations of the established procedure for issuing orders, which exceed the competence of the healthcare institutions, have been revealed. The process of concluding contracts has not been properly organized.
In addition, it has been determined that 47 healthcare institutions employed 40 in-house lawyers, every fifth of these lawyers had higher legal education, every fourth received his law degree more than 20 years ago, and only 5% of the total number of lawyers have improved their professional skills in the last 5 years.
To summarize, managers of healthcare institutions weren’t paying proper attention to the organization of legal work. This tendency affects the efficiency of law implementation while providing healthcare services.
However, without quality legal support, it is impossible to ensure the efficient operation of healthcare institutions. Establishing effective legal services should be a priority.
Keywords: legal work, health care, in-house lawyer, application and implementation of the law.
1. R. P. Bojchuk, D. V. Zadykhajlo, V. M. Pashkov (2010) Orghanizacija pravovoji roboty na pidpryjemstvakh, ustanovakh, orghanizacijakh, navchaljnyj posibnyk. Kharkiv. Vydavnyctvo FINY.
2. Pravova robota v Zbrojnykh Sylakh Ukrajiny, navchaljnyj posibnyk. Za zagh. red. V.I. Kyrylenka. K. RVC Vijsjkovyj instytut, 2010.
3. Kucurubova SHevchenko O. V. (2014) Zmist i naprjamy pravovoji roboty vyshhykh navchaljnykh zakladiv u suchasnykh umovakh. Forum prava, 1, p. 310.
4. Karalkina T.V. Vdoskonalennja pravovoji roboty vyshhykh navchaljnykh zakladiv. T.V. Karalkina. Retrieved from http://sn-jurid.crimea.edu/arhiv/2014/27_4Law/001karalkina.pdf
5. Moroz S. S. (2015) Metody dijaljnosti pidrozdiliv pravovoji roboty Derzhavnoji fiskaljnoji sluzhby Ukrajiny. Naukovyj visnyk Uzhghorodsjkogho nacionaljnogho universytetu. Cerija PRAVO. Vypusk 34, p. 118.
6. Nesynova S.V. (2012) Problemy jurydychnoji dijaljnosti jak riznovydu pravovoji roboty v orghanakh DPS Ukrajiny. Retrieved from sn-jurid.crimea.edu/arhiv/2014/27_4Law/001karalkina.pdf
7. Kolomijecj K. JE. Jurydychna sluzhba Zbrojnykh Syl Ukrajiny, suchasnyj stan ta perspektyvy rozvytku. K. JE. Kolomijecj. Retrieved from http://nbuv.gov.ua/UJRN/jnn_2013_6_14
8. Zakon Ukrajiny Pro Statut vnutrishnjoji sluzhby Zbrojnykh Syl Ukrajiny vid 24 bereznja 1999 roku No 548. Retrieved from http://zakon2.rada.gov.ua/laws/show/548-14
9. Cvetkov Y.V. Orghanyzacyja pravovoj raboty, v pomoshhj korporatyvnomu jurystu, uchebno-praktycheskoe posobye. Y.V. Cvetkov, S.JU. Fylyppova. Retrieved from https://books.google.com.ua/books?id=HLf8AwAAQBAJ&hl=uk
10. GHolovanj I.V. (2003) Pravova robota i zakhyst prav pidpryjemciv. Monoghrafija, I.V. GHolovanj. Nacionaljna akademija nauk Ukrajiny. Instytut ekonomiko pravovykh doslidzhenj. Donecjk TOV JUghoVostok.
11. Shorichna dopovidj Upovnovazhenogho Verkhovnoji Rady Ukrajiny z prav ljudyny pro stan doderzhannja ta zakhystu prav i svobod ljudyny i ghromadjanyna v Ukrajin. Kyiv, 2015.
12. Prava ljudyny v Ukrajini 2014. Dopovidj pravozakhysnykh orghanizacij. Retrieved from http://helsinki.org.ua/index.php?id=1432464418
13. Zaghaljne polozhennja pro jurydychnu sluzhbu ministerstva, inshogho orghanu vykonavchoji vlady, derzhavnogho pidpryjemstva, ustanovy ta orghanizaciji. Retrieved from http://zakon4.rada.gov.ua/laws/show/1040-2008.
14. Porjadok provedennja orghanamy justyciji perevirok stanu pravovoji roboty ta systematyzaciji zakonodavstva. Retrieved from http://zakon5.rada.gov.ua/laws/show/z0075-12