Medical Ethics and Compliance for Healthcare Professionals in Russia

Anna Ivanova, Lawyer at BRACE Law Firm

May 8, 2022

Pursuant to Article 73 of Federal Law No. 323-FZ dated November 21, 2011, On the Fundamentals of Health Protection of Citizens in the Russian Federation (the "Law No. 323-FZ" or the "Law on Health Protection"), healthcare and pharmaceutical workers perform their activities in accordance with the legislation of the Russian Federation, guided by the principles of medical ethics and deontology.

Previously, medical congresses and associations in the Russian Federation adopted the Ethical Code of the Russian Physician, approved by the 4th Conference of the Association of Physicians of Russia in 1994, as well as the Code of Medical Ethics of the Russian Federation, approved by the All-Russian Pirogov Congress of Physicians on June 7, 1997.

Currently, while the aforementioned legal acts have not been repealed, the Code of Professional Ethics of a Physician of the Russian Federation, adopted by the First National Congress of Physicians of the Russian Federation on October 5, 2012 (the "Code" or the "Code of Ethics"), remains in force. According to the Code of Ethics, its provisions are mandatory for physicians performing their professional functions, as well as for students of higher medical educational institutions who temporarily replace or assist a physician.

It is important to note that the issue of the validity of these acts and the legal consequences of their violation is not fully regulated in the Russian Federation.

All the listed codes of ethics share a common regulatory scope—relationships regarding the moral and ethical behavior of healthcare workers within a team and with patients—and a normative character. While physician ethics codes are normative, they are not legal acts. Consequently, their scope is limited to members of the association that adopted the code, and compliance with the code's norms is not ensured by state enforcement, as a code of physician ethics is not a normative legal act. However, the text of the Code of Ethics notes that the document underwent expert review by the Legal Department of the Ministry of Health of Russia.

As the Supreme Court of the Russian Federation notes, the principles of ethics and deontology are rules of professional activity. These rules provide for, among other things, the provision of medical care in accordance with one's qualifications, job descriptions, official and professional duties, and the preservation of medical secrecy.[1]

Nevertheless, some legal acts establish the requirement to comply with medical ethics at the legislative level. For instance, the Ministry of Health of Russia notes that students in medical education programs must possess the ability to carry out professional activities while considering the moral and legal norms accepted in society, and must comply with the rules of medical ethics, medical secrecy, and regulatory documents on handling confidential information.[2] In practice, most educational programs include this requirement. Furthermore, it is a common practice to include a condition on compliance with the Code in a physician’s employment contract and/or job description. Below, we examine the main requirements for compliance with medical ethics rules according to the Code, as well as potential liability for non-compliance, including examples from enforcement practice.

Main Ethical Requirements for Physicians

The Code of Ethics includes the obligation for a physician to conscientiously perform the full range of therapeutic and diagnostic measures regardless of the patient's gender, age, race, nationality, social status, material position, religion, or political views.

A physician has the right to never compromise the principles of professional duty and to reject any demands to perform actions that contradict ethical principles, professional duty, or the law.

The Code pays special attention to medical secrecy, which encompasses everything a physician learns while performing their professional duty. Specifically, a physician may not disclose information constituting medical secrecy without the permission of the patient or their legal representative, including after the individual's death.

A physician must be honest and candid when completing medical histories, writing reports, and filling out or signing forms and other documents. Additionally, a physician must respect the honor and dignity of the patient, consider all personality traits during treatment, encourage the patient to care for their health, and respect the patient's private life and right to confidentiality.

If a patient's health or medical care interests conflict with the interests of other persons, the physician must prioritize the patient's interests, provided this does not cause direct harm to the patient or others.

Relationships between the physician and the patient should be built on a partnership basis and the principles of informational openness.[3]

Since the Code of Ethics is not a normative legal act, medical organizations should include a provision on compliance with the Code in the physician's employment contract and/or job description to ensure its application.

The central problem regarding compliance with the principles of ethics and deontology lies in the absence of a governing normative legal act and the ambiguity in the hierarchy of regulations governing a physician's ethical behavior. Furthermore, the lack of a supervisory body and established forms of liability leads to contradictions and legal paradoxes. Administration of this issue through state control by the Ministry of Health of Russia appears less reasonable than delegating the matter to the professional medical community via a subordinate act. Notably, the First National Congress of Physicians of the Russian Federation discussed creating a self-regulatory organization; however, this was considered a supplementary rather than a primary form of control.

Currently, state authorities and employers primarily monitor compliance with medical ethics and deontology within existing legal frameworks. Specifically, a physician's failure to comply with the Code of Ethics may be categorized as a failure to perform labor functions, potentially leading to disciplinary liability under Article 192 of the Labor Code of the Russian Federation. Furthermore, a violation of medical secrecy as provided by the Code of Ethics may result in administrative liability under Article 13.11 of the CAO RF for violating the legally established procedure for collecting, storing, using, or disseminating personal data. Additionally, Article 137 of the Criminal Code of the Russian Federation provides for criminal liability for violating the privacy of personal life (the disclosure of information constituting medical secrecy by a person who learned such information in connection with their official or professional duties).

Thus, current legislation contains no administrative or criminal offenses directly linked to a violation of the Code of Ethics. In enforcement practice, issues of physician ethics are addressed indirectly within the framework of patient rights protection or labor disputes between physicians and medical organizations. Below are specific examples of judicial practice.

Judicial Practice on the Application of Ethical Principles by Healthcare Workers

In disputes involving the protection of patient rights during medical care, assessing compliance with ethical principles is often difficult. Frequently, the most complex cases reach the European Court of Human Rights (ECtHR).

For example, in the ECtHR Judgment dated December 19, 2017, in the case of Lopes de Souza Fernandes v. Portugal, the applicant appealed the death of her husband resulting from a hospital infection caused by negligence and medical malpractice. She also challenged the failure of disciplinary, criminal, and civil authorities to establish the exact cause of her husband's sudden deterioration, as well as the duration and outcome of domestic proceedings. The Court accepted the respondent's arguments that the domestic healthcare system during the relevant period was regulated by a comprehensive and adequate legal system. Patients were covered by a charter providing for their rights and obligations and could file official complaints. Physicians were subject to professional ethics and were required to follow medical practice rules and apply scientific knowledge according to best practices and hospital protocols. Furthermore, all medical activity was subject to supervision, and physicians who failed to exercise diligence or comply with professional ethics faced disciplinary measures. In cases of medical negligence resulting in death, criminal proceedings for negligent homicide and civil liability cases could be initiated. Specifically, the Disciplinary Rules for Physicians stipulated that "a physician who, through action or omission, intentionally or through negligence fails to perform one or more duties arising from the charter of the Medical Association, the Code of Professional Ethics, this code, internal regulations, or any other applicable norm, is deemed to have committed a disciplinary offense." Thus, foreign jurisdictions often establish that a violation of a code of ethics constitutes a disciplinary offense.[4]

In the ECtHR Judgment dated July 23, 2015, in the case of Bataliny v. Russia (Application No. 10060/07), the applicant appealed an unlawful psychiatric hospitalization, the lack of judicial review of the compulsory treatment decision, ill-treatment in a psychiatric hospital, and the failure to conduct an effective investigation. The Court established that psychiatric care must always be provided in accordance with applicable ethical standards for specialists in psychiatry, including internationally recognized norms such as principles of medical ethics regarding the role of health workers, especially physicians, in protecting prisoners or detainees from torture and other cruel, inhuman, or degrading treatment. The Russian authorities contended that the involuntary hospitalization of the first applicant from May 25 to June 9, 2005, did not constitute inhuman or degrading treatment. However, the ECtHR found a set of serious violations in this case. The applicant was awarded 26,000 euros in moral damages plus any applicable taxes.[5]

Another notable case involved a Russian physician's attempt to challenge several provisions of the CCP RF, the Labor Code of the Russian Federation, the Law on Health Protection, and the Federal Law On the Sanitary and Epidemiological Well-Being of the Population. The appeal to the Constitutional Court of the Russian Federation arose because the physician refused to see patients because the office temperature was +17°C instead of the +20°C required by SanPiN 2.1.3.2630-10, leading to a disciplinary reprimand. The applicant sued to overturn the disciplinary sanction, but the claim was denied. The court reasoned that, based on the principles of medical ethics and deontology and the priority of patient interests, the plaintiff could not refuse to perform his duties. Furthermore, the court found the temperature drop insignificant and concluded it did not threaten the physician's life or health. The applicant argued that the contested provisions were unconstitutional because they allowed courts to treat temperature violations as insignificant and, consequently, to view the refusal of a physician (a person with a Category 2 disability) to work in such conditions as a violation of labor discipline and ethical principles.[6] However, the court refused to hear the complaint. We believe that in such precedents, medical organizations must balance the interests of both patients and physicians to avoid labor disputes. Despite the ruling against the physician, one cannot entirely exclude working conditions as a factor affecting the quality of professional and ethical duty performance.

Below are additional examples regarding disciplinary sanctions imposed on healthcare workers, including those related to alleged violations of the Code of Ethics.

The Supreme Court of the Russian Federation remanded a case involving a physician's dismissal for a new trial. The medical organization justified the dismissal by citing a patient complaint about the physician's "rude" tone. A subsequent audit revealed non-compliance with medical documentation procedures. The lower court reinstated the physician, but the appellate court overturned that decision. The Supreme Court stated that the appellate court failed to properly evaluate the circumstances, including the reasons for the failure to perform duties, and adopted a formalistic approach to a dispute involving the right to labor.[7]

Nevertheless, in many cases, courts of general jurisdiction side with the employee when considering disputes involving violations of ethical principles (as part of a job description).

For instance, one case involved a disciplinary reprimand issued to a physician for failing to follow a verbal order to stay after hours for an emergency surgery and for violating the Code of Professional Ethics. The physician argued there was no emergency and his workday had ended. However, the court noted that the dispute occurred in front of patients and staff. The court ruled this violated the Code of Ethics, which requires physicians to treat each other with respect, refrain from public negative comments about colleagues, and provide assistance when requested. Consequently, the court found the physician's guilt in the improper performance of labor duties to be objectively confirmed.[8]

In another example, a court upheld a disciplinary sanction where a physician, during a driver's medical examination, failed to establish "productive contact" with the driver and referred the patient to a psychologist because the hospital lacked one. The physician argued that referral for further examination was not a violation. However, an internal audit found that the physician spoke rudely, shouted, demanded a military ID (even though the patient was no longer subject to military service), and discussed the patient with the next person in line. The court agreed with the employer that such behavior violated the Code of Ethics.[9]

In conclusion, the professional medical community and regional executive authorities strive to mandate compliance with the principles of medical ethics and deontology. In assessing the fairness of disciplinary sanctions, the protection of patient rights plays a fundamental role. We consider this approach justified. Furthermore, we believe that formalizing the norms of the Code of Ethics at the federal legislative level would be a correct step. However, one must acknowledge the difficulty of assessing ethical compliance given the complexity of medical work and the unavoidable human factor.

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References

[1] Ruling of the Supreme Court of the Russian Federation dated February 28, 2013, No. APL13-29 On Leaving Without Change the Decision of the Supreme Court of the Russian Federation dated November 19, 2012, No. AKPI12-1306, Which Denied the Petition to Invalidate Order of the Ministry of Health of the USSR dated September 12, 1988, No. 704 On the Timing of Dispensary Observation of Patients with Alcoholism, Drug Addiction, and Substance Abuse.

[2] Order of the Ministry of Health of Russia dated July 24, 2015, No. 481n On Approval of Exemplary Additional Professional Programs of Medical Education in the Specialty of Osteopathy.

[3] Code of Professional Ethics of a Physician of the Russian Federation (adopted by the First National Congress of Physicians of the Russian Federation on October 5, 2012).

[4] ECtHR Judgment dated December 19, 2017, in the case of Lopes de Souza Fernandes v. Portugal (Application No. 56080/13).

[5] ECtHR Judgment dated July 23, 2015, in the case of Bataliny v. Russia (Application No. 10060/07).

[6] Ruling of the Constitutional Court of the Russian Federation dated September 29, 2016, No. 1851-O On the Refusal to Consider the Complaints of Citizen Alexander Leonidovich Chuvashev Regarding the Violation of His Constitutional Rights by a Number of Provisions of the Civil Procedure Code of the Russian Federation, the Labor Code of the Russian Federation, the Federal Law On the Fundamentals of Health Protection of Citizens in the Russian Federation, the Federal Law On the Sanitary and Epidemiological Well-Being of the Population, and Sanitary-Epidemiological Rules and Norms.

[7] Ruling of the Judicial Chamber for Civil Cases of the Supreme Court of the Russian Federation dated September 6, 2021, No. 50-KGPR21-3-K8.

[8] Decision of the Leningradsky District Court of Kaliningrad dated August 14, 2019, in case No. 2-3142/2019.

[9] Decision of the Sukhobuzimsky District Court dated May 18, 2018.