Право / 1.История государства и права

Doctor of Law Shchyrba Marijana Yuriivna

Eastern National University named after Lesya Ukrainka, Ukraine

Overcoming the paternalistic approach to the patient’s legal status

The principle of interaction "medical worker - patient" is a fundamental concept in the patient’s legal status and determining for health legal policy.

The relationship between patients and medical specialists define moral values basics of care and promote interaction in an alliance to achieve a common goal - to preserve and restore the patient’s health. Therefore, the studies of relationships between medical staff and patients are not only a moral and ethical aspect, but have a legal dimension, because they establish compliance with legal requirements of modern medical standards.

First of all, we should note that current relations in the health sector are transformed according to the general legal principles; there is a process of modernization, which of course entails a number of problems and conflicts.

Prerogative for the patient’s legal status according to the international standards is to overcome the concept of paternalism in health care relations. This is the legacy that moved to us from the time of the administrative-command system and leads to inhibition of reforms in medicine.

We should agree with V. Demyanenko that paternalism is one of the most important characteristics of Ukrainian consciousness. "Paternalism is inherent to citizens of all post-soviet states as a practical manifestation of the Soviet social security system. This is the right to work, basic social security, education, and treatment, minimum pensions. All this is the basic foundation for survival and people got used to all this, believing that the state must provide social protection. Despite the fact that today health care and higher education (and mostly secondary education) are provided, among other, on a contract basis (are paid) it's stored in the mass consciousness the idea that the state must provide social protection in previous quantities "[1, p.289].

Today the significant problem is departure from the paternalistic perception of relations in the health sector because not state, but the person is responsible for individual health, its maintenance, preservation and restoration. Of course, the role of external factors, such as public policy, environmental, economic and organizational factors have a significant value. However, the patient is a dominant entity in health care relations. The basic relationship should be a partnership between doctor and patient.

Partnerships in relations «patient - doctor» provide an individual approach to patient and significance of patient’s autonomy in making medical decisions, freedom to exercise the rights of the patient.

The experts distinguish the following types of relationships [2, p. 111-127]:

1) doctor-father: the patient is forced to fully obey doctor’s actions. The role of the doctor may be unnecessarily authorized, which necessarily cause conflicts based on displeasure of parties’ obvious inequality;

2) doctor-fighter with the disease: patient, though allowed familiarizing with the "battle strategy", but doctor remains to be commander, which in this situation is sometimes difficult to recognize defeats and to maximum combine treatment and care;

3) doctor-mechanic (responsible executor), the patient is considered as a broken mechanism. The threat of this model is that in laboratory parameters, patient’s identity fades into the background;

4) the contractor doctor-: patient becomes a business partner – the counterparty of a doctor. Their mutual rights and obligations are clearly defined. Such a business approach that involves no sacrifice for the benefit of patients, may lead to the transformation of medical practice into a kind of a "quickie", where there is a desire of the stronger party to meet his/her own interests.

5) doctor-teacher: patient acts as a student, which is introduced into the science of health and healthy lifestyle to prevent diseases. Such relationships with the patient and his relatives are especially important in the final stages of treatment and rehabilitation process;

6) relationships built within the contract of mutual trust. These relationships include deep ethical relationships in which the patient is able to trust the doctor who, in turn, is ready to sacrifice his/her own interests for the sake of the patient. Such trust obliges the doctor not to abuse his/her dominant position. The parties have equal legal status and it may seem that this model is the most adequate form of relationships between doctor and patient. But it is possible only with high rates of ethical and moral foundations of society.

Of course, all these kinds of relationships are inherent today in the health sector, but they are determined by the individual characteristics of parties. In the studies of B.D. Karvasarskhyi shown that the relationships between doctor and patient in each case are composed individually, depending on the characteristics of the individual patient, his nosology affiliation as well as from individual psychological characteristics of the doctor. [3]

A significant is the concept of the optimal interaction between the health specialist and the patient, where the patient actively participates and takes responsibility for the result.

In medicine such interaction is determined by the term "therapeutic alliance." In the theoretical analysis of D.E. Orlinsky, K.I. Howard there're identified the main conditions for the formation of effective alliance. These include "a significant energy consumption" from both the patient and the therapist; specific role division when the physician collaborates with the patient; the personal contact is established, based on trust and mutual understanding between both parties; stability of relationships that is provided by the availability of support from the therapist and the patient’s active position in the therapeutic process [4].

Therefore, the patient’s legal status should be based on the principles of interaction between the medical specialist and the patient. The paternal approach that indicates a lack of individual approach to the patient is not justified in the current conditions of the state, because the patient must bear individual responsibility for the health and take responsibility for the result.

Literature:

1. Дем’яненко В. М. Патерналістські мотивації в електоральному виборі громадян України / В. М. Дем’яненко //Наукові записки Інституту політичних і етнонаціональних досліджень ім. І. Ф. Кураса. - 2012. - Вип. 6. - С. 288-300.

2. Биоэтика в медицине и пищевой промышленности. Необходимость и смысл нравственного поведения: перевод с англ. — К.: Реалис, 2006. — 204с.

3. Клиническая психология: учебник / под ред. Б.Д. Карвасар- ского. - 2-е изд. - СПб. : Питер, 2006. - 960 с.

4. Orlinsky D. E. The good therapy hour: experiential correlates of patients and therapists evaluation of therapy session / D. E. Orlinsky, К. I. Howard // Archives of general psychiatry. - 1967. - Vol. 12. - P. 621-632.