OCCUPATIONAL MEDICAL RISKS: CONDITIONS OF LEGITIMACY IN THE CONTEXT OF CURRENT CRIMINAL LAW

Abstract

Background. Medical practice requires decisions that are risky in nature and their positive outcome cannot be guaranteed. The reasons for this can be varied, but also with a proper and professional approach by the treating attending physician and other medical personnel adverse effects of the treatment or research carried out should not also be interpreted as criminal acts, which justifies a thorough examination of the attributes and types of reasonably medical risks and the conditions for their legitimacy. Materials and methods. An analysis of the sources of legal regulation of medical activity, including criminal legislation, was carried out and law enforcement practice was studied. The paper used the formal-legal method to identify and specify the conditions for the legitimacy of medical occupational risks. Results. Occupational medical risk is a type of reasonable risk, that is a circumstance precluding criminality of an act, and depending on the socially useful purpose of the intervention in the functioning of the human body, it can be innovative and treatment. Conclusion. Qualification of occupational medical risk as a reasonable risk requires taking into account consideration of the full content of the situation of its application in each case. In doing so, there is no need for a separate regulation on the legitimacy of medical risk, but Article 41 of the Criminal Code may be supplemented by a condition to exclude informed consent of the patient or his statutory representative, when it is carried out on emergency evidence to eliminate the threat to a person’s life.

Keywords

• reasonable risk
• occupational medical risk
• medical personnel
• criminal liability
• medical experiment