Article 41 of the Constitution of the Russian Federation enshrines the right of every citizen to health care and medical care, and in order for this right not to seem like an illusory representation, the domestic legislator fixes this guarantee in the Criminal Code of the Russian Federation in Art. 124, which is called "Failure to provide assistance to the sick." However, when qualifying the deed under this criminal law norm, many difficulties arise in real practice.
In the process of studying court decisions on criminal liability for failure to provide assistance to a patient, it was found that over the past five years (2016-2020) only 23 people were convicted for this crime in Russia, while all of them were convicted under Part 2 Art. 124 of the Criminal Code of the Russian Federation, while under Part 1 of Art. 124 of the Criminal Code of the Russian Federation, not a single person was convicted. Thus, very little is considered by the courts.
the number of relevant criminal cases, which may be due to both the difficulty in investigating and proving crimes under Art. 124 of the Criminal Code of the Russian Federation, as well as the high latency of iatrogenic crimes, which is more applicable to part 1 of the article in question due to the lower significance of the consequences.
In addition to the above, the application of Art.124 of the Criminal Code of the Russian Federation in practice is faced with the following problems: lack of consensus regarding the subject of the crime of the act in question; the absence in the legislation of provisions regarding what is understood as valid reasons for not providing assistance to the patient; the absence in the law of the concept of non-provision of assistance; the absence in the law of an accurate, undeniable definition of the concept of a patient, a list of persons who are obliged to provide assistance.
In the theory of law, the object of a crime is understood as any material or non-material good, that is, something for which a social attitude arises. At the same time, common, generic, specific and direct objects are distinguished as part of any crime.
The common object of the crime is a set of public relations protected by criminal law. It is the same for all crimes.
The generic object of a crime is a set of homogeneous social relations taken under the protection of a specially provided group of criminal law norms. The generic object is determined based on the section of the Special Part of the Criminal Code of the Russian Federation, in which the relevant norms are located. The placement of the analyzed article of the Criminal Code of the Russian Federation in section 7 of the Criminal Code of the Russian Federation "Crimes against the person" indicates that the generic object of non-assistance to the patient is the person's personality, which in law is understood as the subject of legal relations, the bearer of rights, duties, freedoms.
A specific object is socially significant social relations, or interests that are very similar to each other and are protected under threat of punishment by criminal law norms located in a specific chapter of the Special Part of the Criminal Code of the Russian Federation. It follows from this that the life and health of a person acts as a specific object of non-provision of assistance to a patient.
A direct object is understood to be a specific public attitude protected by criminal law, which suffers damage as a result of the commission of a certain crime.
The immediate object of the crime is the health of the victim. An additional direct object of the analyzed crime is social relations that are harmed or threatened with harm on a par with the main object of the crime.
The key feature of this corpus delicti is the victim - the patient. But the construction of "patient" is not reflected in the current legislation to characterize the special condition of a person who needs medical care. In this regard, a discussion has arisen in science about who to understand by such.
As the main direct object here, it is necessary to highlight the life of another person. An additional direct object of the analyzed crime is social relations that are harmed or threatened with harm on a par with the main object of the crime.
The objective side, similar to Part 1 of Article 124 of the Criminal Code of the Russian Federation, is an act in the form of inaction, which is a failure to help a patient without valid reasons, which can be expressed in various forms.
The composition of the crime provided for in Part 2 of Article 124 of the Criminal Code of the Russian Federation is material and provides for the mandatory occurrence of consequences due to failure to provide medical care in the form of death of a patient or causing serious harm to his health.
In accordance with the Medical criteria for determining the severity of harm caused to human health, the approved order of the Ministry of healthcare and social development of the Russian Federation dated 24.04.2008 № 194н, is considered a serious injury, threat to human life (e.g., penetrating head wounds, skull fractures, intracranial injury, penetrating wounds of the neck and the neck of the larynx, some fractures of the spine and vertebrae, etc.), creating a threat to nature directly, and also the damage that caused the development of life-threatening conditions (shock, severe, profuse blood loss, loss of speech, vision hearing, etc.) (p. 6).
As for death, then its time in accordance with the Federal law of 21.11.2011 No. 323-FZ "About bases of health protection of citizens in the Russian Federation" the time of its occurrence will be determined either by the time of the death of the human brain, or the time of biological, that is, irreversible death. It is stated by a consultation of doctors, which must necessarily include anesthesiologist-resuscitator and neurologist who have at least 5 years of experience in the specialty.
At the same time, brain death can also be detected with a working heart, when the lungs are supported by an artificial ventilation system. A prerequisite for the diagnosis of brain death in such cases is the complete and irreversible termination of all its functions.
In order to more accurately understand this topic, consider an example from life:
On October 27, 2017, the child of Citizen K. had an attack, she had asthma. The drug, which is needed for the girl, was supposed to arrive only on the 29th, since it is not produced in a small town. Parents did not slow down, took their daughter to the hospital, while the time was later than 3 o'clock in the morning. Arriving at the hospital, the doctor on duty examined the girl and told her parents that it was a normal cough and there was no need to call and wake up the doctor who was examining their daughter. The parents insisted that the child be urgently hospitalized, to which the duty officer refused. They had to drive to a nearby town, which was three hours away. Having taken the girl to the hospital, after 15 minutes her heart stopped, the doctors could not stop the attack, as they were too late.
This example is proof of what can happen due to the negligence of doctors who do not provide medical care.
Thus, the main direct object is the health of another person (in relation to parts 1 and 2 of article 124 of the Criminal Code of the Russian Federation) and the life of another person (in relation to part 2 of article 124 of the Criminal Code of the Russian Federation).An additional direct object of the analyzed crime is social relations that are harmed or threatened to be harmed along with the main object of the crime.
Victims of a crime under Art. 124 of the Criminal Code of the Russian Federation, is a sick person, i.e. any person who has fallen ill or is in a state of danger to life or health and in need of medical care, excluding medical care of a non-curative nature.
In the objective side of the crimes under Art. 124 of the Criminal Code of the Russian Federation, includes elements that characterize these acts in the form of inaction (failure to provide assistance to the patient), committed in a special situation (lack of good reasons for not providing assistance), socially dangerous consequences (harm to health of moderate severity, serious harm to health or death) and a causal relationship between them.
The crime under Art. 124 of the Criminal Code of the Russian Federation, has a material composition. That is, it will be considered completed only when socially dangerous consequences occur. In this case, when causing harm to health of moderate severity, serious harm to health, as well as death to the victim by his inaction.
The subject of the crime Art. 124 of the Criminal Code of the Russian Federation recognizes a natural sane person who is obliged to provide assistance to the patient in accordance with the law or a special rule. This is not only a medical worker, but also another person who, in accordance with the law or other act, is entrusted with the obligation to provide medical care to the sick or injured.
The subjective side is characterized by careless guilt in the form of frivolity or negligence.After analyzing the problematic aspects of criminal liability for failure to provide assistance to the patient, we can argue that the legislation in this area needs to be improved on the following issues:
1) establishing in the law an accurate, undeniable definition of the concept of a patient and clarifying the characteristics of the victim, or expanding the list of persons who are obliged to provide assistance;
2) clarification of the concept of non-provision of assistance, i.e. failure to provide medical care, determined in accordance with the provisions of the Federal Law "On the Fundamentals of Protecting the Health of Citizens in the Russian Federation";
3) establishing an exhaustive list of persons who may be subjects of the act we are considering;
4) establishing a legal concept of valid reasons for not providing assistance to a patient or determining a list of such valid reasons, at least at the level of clarification of the Plenum of the Supreme Court of the Russian Federation.