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VI. ECONOMIC, SOCIAL AND CULTURAL RIGHTS

6.4. RIGHT TO HEALTH CARE AND MEDICAL PROTECTION

Life and health of the human being are the highest values. In nowadays world, they are actually an integrated indicator of the society’s level of development. These values declared in the Universal Declaration of Human Rights, UN Convention On the Rights of the Child, International Covenant on Economic, Social and Cultural Rights, other international documents were secured at the constitutional level in most civilized countries.

Requirements of international standards were reflected in the Ukrainian Constitution where it is stated that each person has the right to health care, medical aid and health insurance.

On November 19, 1992, the Ukrainian Parliament adopted Fundamentals of Ukrainian Legislation on Health Care. They comprise the most important principles of health care, stipulate rights and obligations, determine state guarantees regarding legal protection of citizens, recognize the policy of the world community in health care. Health care is determined as the priority of society and state. The state facilitates development of physical culture and sports, ensures sanitary-epidemic welfare.

The right to health care and medical aid under laws in effect is complex in character and implies the following:

§ standard of living, including foodstuffs, clothing, housing, medical treatment and social services and protection that are necessary for health of the human being;

§ secure environment and sanitary-epidemic welfare at the place of residence;

§ safe and healthy working conditions, education, daily living and rest;

§ skilled medical and sanitary aid, including free choice of a physician and medical institution;

§ true and forehanded information on the person’s health and health of population, including possible existing and potential risk factors and their extent;

§ participation in discussions of draft health laws, in health care administration, public expertise regarding these issues;

§ legal protection against any unlawful discrimination in connection with the state of health, indemnification of damages to health and appealing against unlawful decisions and actions of health officials, institutions and bodies;

§ opportunity for carrying out independent medical expertise in case of disagreement of the person with conclusions of state medical expertise, his subjection to enforced treatment and in other cases when generally recognized human rights may be violated by health care workers, etc.

It should be noted that in European countries there are legal acts regulating rights and obligations of doctors, patients, representatives of governmental agencies engaged in genetic engineering, reproductive medicine, AIDS treatment, transplantology. Having become a member of the Council of Europe, Ukraine took an obligation to fulfill requirements and recommendations of this institution regarding the patient’s rights and freedoms, ethical aspects of carrying out medical experiments, etc.

Health care in Ukraine is ensured by corresponding programs financed by the state, creation of conditions for effective and accessible medical aid to all citizens. Governmental, public or other institutions, organizations, enterprises, officials and private persons are obliged to ensure priority of health care in their activities, not cause damages to health of population and individuals, provide assistance within their competence to the sick, disabled and victims of accidents, assist health care bodies and personnel in their activities, etc.

The Commissioner considers it is necessary to note that currently the state is taking measures to improve the state of health care and medical aid. Thus, implementation of targeted programs of the Ministry of Health Care care of Ukraine is worth to be assisted. They are the following:

Family Planning; Long-Term Program of Improving the Status of Women, Family, Protection of Motherhood and Childhood; Children of Ukraine; Safe Childhood; Diabetes Mellitus; National Program of Prophylaxis of Sickness and Assistance of Healthy Way of Life of Ukrainian Population, etc.

Table 6.6. Incidence rate for all types of diseases in 1998-1999

At the same time, as statistics data, monitoring of applications to the Commissioner prove, the state of health of Ukrainian population is getting worse. Its current level is directly related to very hard circumstances of most people, unsatisfactory working conditions and everyday life, low quality and non-balanced diet, unhealthy way of life, low physical culture, vicious habits (smoking, alcoholism, drug addiction and toxicomania), usage of out-of-date, ecologically dangerous technologies in production, lack of effective means of destruction of harmful substances and protection against them, industrial contamination of environment and difficulties of adaptation of people to new social and economic conditions. The situation is deepened by consequences of the outrageous ecological catastrophe – Chornobyl disaster (Table 6.6).

At the same time, according to experts’ estimations, needs of population in medical services are met only by 30%.

National health programs are not fulfilled to a full extent. The imperfection of the control mechanisms for observing human rights in health care, legal irresponsibility of a great number of medical workers make a proper protection of the patient’s rights impossible. Lack of information about the experience of other countries in patient’s and doctor’s rights protection, the Ukrainian population’s unawareness of their rights and freedoms in the medical sphere create grounds for main rights violations, set by the Lisbon Declaration and the European Declaration of the Patient’s rights.

On a very irregular basis can the Ukrainian population obtain timely and proper medical assistance. It is confirmed by numerous appeals of citizens to the Human Rights Commissioner. For example, Mrs. Mikhailik from the village of Shramkivka of the Drabiv raion of Cherkassy oblast, addressed the Commissioner with a protest against unsatisfactory treatment at the regional hospital and a request for a medical assistance to her sick child, suffering from insulin dependent complex diabetes. An open investigation was initiated and The Commissioner application was made to the Ministry of Health Care of Ukraine and the Cherkassy oblast state Administration. Owing to the work done, the patient was proposed to undergo an observation and treatment in the specialized endocrine department of the Cherkassy oblast hospital. Thorough examination of the patient and consultations of the various specialists will determine if it is necessary to dispatch her for treatment abroad.

In the appeal to the Human Rights Commissioner, Mrs. K.Kagramova from the Odessa district, expressed her motherly grave concern over the health conditions of her under age children of eleven and 3 years old and asked for help in examination and treatment, enlarged on the unwillingness of the Odessa District State Administration to help in these matters. The Commissioner initiated an investigation in the case of violation of the human rights to medical assistance and an appeal was launched to the Ministry of Health Care of Ukraine.

As the Director of the Administration of medical assistance to children and mothers informs the Ministry of Health Care of Ukraine has provided a medical aid and children were dispatched for examination and treatment to the Ukrainian child specialized hospital “Okhmadet” in Kyiv. The human rights of the citizens were restored.

In general, as a result of the brutal violation of the human rights to medical aid on the part of the Ministry of Health Care and its local bodies The Commissioner initiated 23 investigations in 1998 and 39 cases in 1999, connected with the human rights restoration.

The Commissioner admits that in such a critical state in the system of health care and worsening of the overall epidemic situation, a general sickness rate is rising. As the experts warn, if immediate measures are not taken, in 5-7 years every third Ukrainian might be sick with TB or hepatitis or HIV.

As it has been already mentioned in the paragraph “ The human right to life”, section IV, one of the most dangerous illnesses is expansion of HIV. Apart from that, as the specialists regard, Ukraine is at the threshold of AIDS epidemic.

The Commissioner stresses that the public is unfortunately not ready for the adequate perception and evaluation the whole tragic situation. Ill social-economic reforming has lead to the fact that the population, tired of constant fight for life, is more vulnerable to current socio-economic problems rather than potential and somewhat distant AIDS threat.

For Ukraine AIDS is not an epidemic only, it is an acute socio-economic problem. One cannot but take into account that AIDS preventive measures are the very corner stone to test the state’s power, its economic and social structure. During the years of reforms in Ukraine, the social - economic potential called for strengthening the health care system, shielding population from epidemics, including the one approaching now, was not created.

The Program of AIDS and Drugs Prevention for 1999-2000 was jointly designed by a number of relevant ministries and agencies where the principles of state policy found their practical realization. As the above-mentioned (third) program of AIDS and Drug Prevention is coming to an end in 2000, The Commissioner stresses the urgency to determine the ideological nature of the coming fourth program, ways of realization of the whole existing potential, utilization of the human resources for an adequate counteract against AIDS and HIV epidemics in Ukraine.

It is necessary to emphasize that the MOHC must strictly control such questions, as prevention of infection cases through the donor blood and its products, and also through medical manipulations at the medical centers; social protection of the HIV-hit people, and above all children, devoid of parents’ attention and orphans, and people with no permanent living address. It is also important to note down that worsening of the AIDS epidemic situation coincides with the diminishing of the medical examinations: in 1998-99 the number of examinations in Ukraine has decreased by 1,2 times, by 1,4 times with the drug addicts, by a third with the prisoners.

Having thoroughly analyzed the situation in Ukraine, The Commissioner believes that the following urgent measures ought to be introduced in the country:

§ To exert strict control over the implementation of the Law On Prevention of the Acquired Immune-Deficiency Syndrome (AIDS) and Social Protection of Population and the AIDS/Drugs Prevention Program for 1999-2000 and urgently prepare a new program for the coming period, taking into a count the experience gained;

§ To legalize the activities of the non-formal citizens units, involved into AIDS/HIV problems solutions and their co-operation with state-run organizations and offices (the Community Care Act, adopted in Great Britain in 1990 can be mentioned as an example of such an effective legislative act);

§ To launch a national educational campaign, aimed at humanization of the society to change the negative attitude to the HIV-infected, to widen knowledge of AIDS/HIV, to form the public opinion concerning the AIDS/HIV problems in accordance with the moral norms and values of the European civilized country, to propagate a healthy way of life and decrease social consequences of the drug addiction;

§ To facilitate the introduction of the modern effective high-information and specific methods and testing systems of early AIDS/HIV express-diagnostics, while making use of the best world-known methods;

§ To eliminate any probability of artificial unfavorable situation concerning the introduction of the new modern methods of early AIDS/HIV diagnostics, which in fact leads to the criminal attitude to the Ukrainian citizens, when through late discovery of the sick or virus-carriers, a situation arises to cause an epidemic spreading;

§ To ensure the state support to the chain of the anonymous AIDS/HIV diagnostic laboratories to facilitate early revealing of the infected and directing them to specialized hospitals;

§ To create new and support the existing therapeutic groups of the AIDS – positive and their relatives at the local AIDS-units and infection hospitals;

§ To involve public organizations in the consideration of the needs of this category of citizens, the resource availability to satisfy and protect the rights of AIDS-hit and their relatives;

§ To involve the AIDS-positive citizens into participation in the national and local state and public commissions, committees and other organizations, acting in this field.

The Commissioner underlines the necessity of taking urgent measures to fight the AIDS epidemic, which invades our country mercilessly. Efforts of all state structures and the whole society are to be united to prevent effectively the spreading of AIDS/HIV. It is necessary to point out that Ukraine is becoming a world “leader” in the AIDS incidence rate and potentially dangerous for the whole humanity. Our country may be announced a quarantine zone with easy predictable negative consequences, which may turn more frightening than those of Chornobyl.

Unfortunately, we have to state that it is becoming problematic to provide for even such important prophylactic measures as obligatory donor blood test on AIDS infection, TB, diphtheria and other immune preventive measures, to say nothing of the complete planned medical aid to population. The absence of vital preparations even for preventive treatment of children, infected with TB, aggravates the problem still further. As the Human Rights Commissioner checked, there were no funds for purchase of chloride means for the hospitals in the town of Brianka, Luhansk district, whereas in the Stakhanov osseous-TB sanatorium at the moment of the visit the patients had not had even a piece of bread for more than a week!

Also, the Commissioner regards it necessary to draw the attention of the society to the problem of help rendering to the patients with disturbances of psychology and behavior. Unfortunately of late Ukraine faces numerous instances when under the alleged necessity to treat a psychiatric disease of the people who are not suffering from it, the healthy are taken to psychiatric medical departments by force. Hence, the clear legal procedures and guarantees must be set to prevent the human rights violations of the sick and practitioners, using specialists for unlawful out-of-court isolation of some citizens.

In 1998 after a “vigorous” conversation with the head of the standing commission on science, education and health care of the Dnipropetrovsk district, two elderly women were taken to the District psycho-neurotic center by police force against the relatives’ claims that the detained were sound – minded.

In July 1998 the court of Zaliznychny district of Kyiv considered the claim of Mrs. Artamonova to Mr. Kravchuk, a doctor of the Kyiv regional clinics of Zaliznychny district, who back to 1996 consciously diagnosed her as a psycho. This caused the lady a lot of anguish; she was regarded insane for a long time, as the paper with the diagnosis had been sent out to 17 addresses.

In Kharkiv, Mr.Popov, the Head of the department of the psychiatric hospital, was found guilty for having detained Mrs. Akopian in hospital unlawfully and by force, diagnosing her as a lunatic. However, the subsequent repeated tests did not detect the stipulated disease.

By its specific character psychiatry is regarded a high-risk zone in the whole world. The most known and serious aspect in this mechanism is the application of the so-called method of the forced hospitalizing and psychiatric treatment. Because of this, a detailed determination of the legal guarantees and proceedings of the psychiatric assistance is vital.

In accordance with the data of the Ministry of Health Care of Ukraine in 1998-1999 there were 86 psychiatric hospitals in the country, capable to house 48 303 patients and also 36 psychiatric health clinics for 3,229 beds. In 1998, 145,204 people were diagnosed for psychic and behavior disorders in Ukraine, and in 1999 132 506 correspondingly. The problem of providing medical and social aid to this category of the sick remains grave. At the same time it is important to note that in Ukraine, of late, the social improvement of conditions, leading to a radical reduction in psychic and behavior abnormalities, did not take place. Neither did the general state of health to influence the number of patients of this category. That is why the problem of provision for the medical aid to psychos remains very acute.

As the independent experts state, the system of provision for the medical care to psychos is the zone of serious violation of human rights. The Special Violation Committee of the World Psychiatric Association has envisaged several instances of the ill use of psychiatry in Ukraine. The case with Mrs. Akopian at this time is under special control of the whole committee. The corresponding committees of the European Council receive a lot of protests from citizens for the human rights violation at the time of getting psychiatric help, including the cases of torture.

On October 30,1997 the Constitutional Court Of Ukraine has considered the case of Mr. Ustimenko concerning articles 3, 23, 31, 47 and 48 of the Law On Information and Article 12 of the Law On Public Prosecution. It testifies to the rights violation at providing a person with a medical psychiatric aid. The reason for the review was a dubious application of the regulated norms by the courts of general jurisdiction, which lead to the constitutional rights and freedoms violation of the Ukrainian citizen. At the request of the Dnipropetrovsk Railway College Administration the plaintiff was registered in the Dnipropetrovsk city psycho-neurotic health center in 1988-90. The plaintiff, according to his information, learnt about this in July 1990. This limited his opportunities for a job substitution and caused moral and financial losses. With the aim for compensation in the civil legal order, he addressed the Head of the Medical Center with a demand for relevant information: by who, when and on what grounds he was put on the list; who received the information that he had been registered; by who, when and on what grounds had he been removed from the list; if the psychiatrists actions were in line with law to limit his employment in 1998-90 and who holds responsible for the losses he had met.

However, the Head doctor refused to provide him with the required information. On November 27, 1992 the Deputy Prosecutor of the Dnipropetrovsk district similarly rejected Mr. Ustimenko for the available information of his health state without explaining the motives. The complaints for the mentioned actions of the state man of the Prosecutor’s office during 1993-96 were refused for consideration by courts of general jurisdiction, including the Supreme Court of Ukraine. However, the Constitutional Court of Ukraine in reply to the constitutional rights of the subject of right replied with a case vision in favor of the plaintiff, restoring his rights.

Numerous publications in the Ukrainian mass media also testify to the unfavorable processes in this branch of medicine. As per the data of the Ukrainian Psychiatrists’ Association, a non-government body, which regularly provides the psychos with social and legal assistance, during the recent years the number of abuse cases of mercenary nature in Ukraine has sharply increased, aiming at a residence place, a will, etc. Regular become the facts, when the psycho’s relatives do not want the patient back into the family. The appeals of the citizens about psychos’ unlawful deprivation of the residence place are the confirmation to this. For example, the Commissioner got an appeal from the Kyivans, who found themselves in a similar situation. A number of check-ups were performed in this reference at his request, aided by the police, resulting in taking corresponding measures to uphold the residence rights of the victimized applicants.

Overloaded and ineffective system of the existing Ukrainian psychic hospitals promotes abuse on the part of the medical staff, the reports have several cases of the severe treatment of the sick at hospitals; the majority of the psychos fail to obtain modern psychic drugs through financial problems. At the same time one can positively admit that in the Kyiv psychiatric city hospital, a Public Rada of trustees and tutors was set up, members of which keep an immediate control over observance of the sick people rights.

The appearance in Ukraine of the public organizations to protect the rights of the sick (groups of relatives of the psychos; volunteers units; groups of the united patients) draws the public attention to the problems of psychiatry and introduction of necessary changes in this sphere, deserving every support.

The Commissioner urgently reacts to all citizens’ appeals for treatment conditions in the psychiatric centers. For example, on the basis of a letter from Mr.O. from Kherson oblast, the Commissioner addressed the state Kherson oblast state administration with a request to review the conditions of stay of the sick in the Regional Psychiatric Center, seated in the village of Stepanivka. According to Mr.Karas, the Deputy Head the State Administration, the Commission, lead by him personally had checked the conditions of stay of 1,111 people, who were having examinations and treatment at this hospital. Special attention was drawn to improvement of stay of nearly 120 persons, registered as socially unprotected, Mr.O. among them.

The shortage of seats in the corresponding facilities of the Ministries of Labor, Education and Science, leads to medically unreasonable and forced detaining of psychos (adults and children) at the psychiatric centers of the Ukrainian Ministry of Health Care.

In the opinion of the experts of the World Psychiatric Association, Ukraine needs to reduce centers of psychiatric aid, as serious violations of human rights are taking place in the considerable number of them. That is why, taking numerous patients out of hospitals, while considerably expanding extra clinical aid will help preserve social skills, abilities and social adaptation of these people. Large costs of keeping patients at the psychiatric clinics are a serious motive for reforming the psychiatric system.

The Commissioner underscores the necessity of the effective application of Law On Psychiatric Aid, which clear-cuts the rights and duties of the subjects of psychiatric aid, limits of responsibilities for violation of the legal norms. Its requirements must become a guarantee that the psychiatrist will act in the interests of the sick and not the needs of politicians and “force-liners” and patient’s consultation with a doctor or his treatment in a psychiatric out-patient department or hospital shall have no negative consequences on him.

Thus, there are a lot of grounds to state that the right to medical aid, guaranteed by the Constitution is unsatisfactory today. One of the main reasons thereof in the opinion of the Commissioner is that in the transition period of economy the volume of state expenditures for health care has decreased to such an extent that the state medical institutions face the problems of under-supply of medicaments and equipment and also lack of funds for staff salary. For example, in 1998 the expenditures for health aid made up 3,8% of GNP, in contrast to 3.3 % in 1999. In 1999 the costs of medical aid per person made up roughly US $ 20 (Table 6.7). It is necessary to admit, however, that the World Health Organization regards that allocation of less than 5% of the GNP to health aid make this branch of industry not only ineffective but disabled. For the sake of comparison the expenditures for health aid in some of the countries of the world make up (in percent of GNP): United Kingdom – 5.9%, Poland – 6.2%, Portugal – 6.5%, Japan – 8.3%, Germany – 9, the USA – 14%

Table 6.7 Dynamics of budget allocation in health care of Ukraine in 1991-1999

However, even in the consolidated budgets of Ukraine for 1998-99 only a partial financing of the amounts due was envisaged for purchase of medicaments, feeding the sick in hospitals, medical staff salaries, meeting the communal costs by the medical institutions. The requirements of the medical establishments for renewal of the medical equipment and introduction of modern medical technologies were not financed at all during the last years. Because of lack of funds for overhauls a great number of capital funds found themselves on the brink of pre-emergency or emergency state. Modern health care facilities are practically not built.

The demands that social expenditures must become the priority are not met. If the implementation of the cost part of the State Budget for 1999 made up in general 75%, the implementation of the medical care section constituted only 44%. The level of expenditures for medicaments, dressing materials and food by the Ministry of Health Care of Ukraine per one sick person is 5-10 times lower than the one set by the State Budget and 10-20 times less that the norms due. For example, the medical expenditures in the Chernihiv District made up only 40% which had a negative impact on the level of medical service to population. Beyond any critics is the financing of the children’s hospitals, where only 43 kopecks were spent for a child and 10 kopecks for food per day.

The Commissioner has become convinced of this after having paid a visit to the children’s hospitals in the Luhansk district. Such situation has a negative influence on the provision of the quality and effective medical aid to little citizens of the Ukraine, leads to their rights violations. This is proved by a great number of appeals to the Commissioner.

In 1998 the Ukrainian Parliament adopted Fundamentals of Ukrainian Legislation on General Compulsory State Social Insurance, directed at further solution of the existing financial problems of health care system. One of the basic kinds of insurance is compulsory medical insurance. This frame law facilitates the development of the appropriate legislative basis that will regulate formation and functioning of the compulsory medical insurance system.

Such an approach fully coincides with the world experience, corresponding conventions and recommendations of the World Trade Organization, World Health Organization. Most of European countries follow this exact path, when health care system is financed by way of social insurance. At the same time the experience of the reforming countries, like the Russian Federation in particular, warns against blind copying to our conditions. Therefore, the introduction of the compulsory medical insurance system should be done step by step, thoughtfully, and stimulate the improvement of the medical aid, first and foremost to ordinary people.

The increase of volume of paid medical services and its extra high charges prevent satisfaction of people’s demand in medical aid. Only in 1998 population’s expenses for paid medical service equaled UAH 146.7 million. In the Commissioner’s view there is an ample proof to state that the observance of people’s right to free health care and medical aid in Ukraine, guaranteed by Article 49 of the Constitution, is unsatisfactory at present.

Topical character of the paid medicine problem found its reflection in the decision of the Ukrainian Constitutional Court, of November 25,1998, N 15 PN/98, in the case on the constitutional appeal of 66 People’s Deputies of Ukraine, concerning the correspondence to the Ukrainian Constitution of the Decree of the Cabinet of Ministers On Approving the List of Paid Services Rendered at State Health Institutions and Higher Medical Educational Establishments of September 17 1996 No. 1138, amended by the Decree of the Cabinet of Ministers of May 12 1997 No. 449 (the case of paid medical services).

The Ukrainian Constitutional Court, having considered the above questions, arrived at the conclusion that the regulations of the Ukrainian Cabinet of Ministers Decree On Approving the List of Paid Services Rendered at State Health Institutions and Higher Medical Educational Establishments are unconstitutional. The regulations have lost their effect since the Constitutional Court adopted the decision. Unfortunately, practice shows that the above decision of the Constitutional Court is not observed.

Instructions of the Ukrainian Ministry of Health Care, concerning fees for some medical services at the medical establishments of Donetsk oblast, Kyiv, etc., are also being neglected. Such conditions galvanized a shadow market of medical services, which exert a negative influence on the state of populations’ health, the majority of which are insolvent and unable to cover the necessary medical services. Citizens’ appeals to the Commissioner prove it.

For example, a resident of the Autonomous Republic of the Crimea Mrs. Gavrysh appealed to the Commissioner in connection to the absence of treatment on preferential terms and provision for medicines of the privileged categories of sick people in the Autonomous Republic of the Crimea. The Commissioner began investigation in the case of violation of people’s rights to medical aid. Owing to this, the organization of treatment of the sick applicant was decided positively.

The Commissioner considers that in present-day conditions the state support of home production of medicines and medical equipment becomes of paramount importance. However, the funding of the Comprehensive Program of the medical industry in Ukraine for 1997-2003 constituted in 1998 only UAH 64.5 million, the demand being 230,31. In 1999 the situation was none the better.

In European countries 10-30% of funds allocated to health care are spent on medicaments. In Ukraine budget assignations to local government bodies for purchase of medicines in 1998 – 1999 constituted only 9% of the need. During recent years the wholesale of medicaments in Ukraine made up UAH 1,3 billion and sales of medicines to preventive medical establishment fell from 50% to 20% of the wholesale turnover. Still unsolved remains the problem of preferential medical supply of socially unprotected layers of population: children, invalids, war veterans and others, who need this help most of all.

For example, the Commissioner got an appeal from Mr. Biliavtsev, concerning the illegal order of the Main Pharmaceutical Office of the Kyiv State Administration on striking off the list the persons, having the right to free obtaining of some medicaments for medical treatment and correction of health state (a case of Parkinson disease). Having detected in the given facts the violation of the human rights to medical aid, the Commissioner started investigation and addressed the Health Office of the Kyiv State Administration. The Commissioner’s intrusion resulted in restoring the violated rights of the citizens to medical help and free medicines. Hence, the sick people’s needs were satisfied and in accordance with the letter of the Deputy Chairman of the Social Medical Care Department, the population will be provided in future with the medicines for free recipes as per medical advice and their state of health.

While visiting the Luhansk district the Commissioner accepted for perusal a collective appeal of the residents of the cities of Krasnodon and Molodogvardiysk with regard to rights violation of 600 people, sick with sugar diabetes and unable to get insulin.

As per data of the Molodogvardiysk city hospital UAH 20,000 were needed to provide these patients with insulin during 4 months. At April 15, 1999 only UAH 4,077 were allocated, that is one ampoule per patient per month. The cities’ budgets of Molodogvardiysk and Krasnodon lacked the funds to provide the patients for insulin. The Commissioner filed a case of the human rights violation and addressed the corresponding state organs to solve this matter.

N.Pankov, a citizen of Krasnodon, the Luhansk district, appealed to the Commissioner as to the failure of the National Program “Sugar Diabetes” and provision of the patients for insulin, as stipulated by the acting legislation of Ukraine. The Commissioner started to investigate the human rights violation to health care and medical aid. This resulted in appealing to the Ministry of Health Care and the violated rights were restored, the applicants will obtain the insulin in the needful quantity.

The Commissioner regards that in the solution of this problem it may be prudent to rest on other states’ experience. In the states of the European Union the concept of medical preparations of the first need or the main medical means enjoys great popularity and proves its effectiveness and is getting support of the World Health Organization during 15 years. These means are regarded vital for life protection, treatment of serious disorders and illness prevention. An easy access to the main range of medicaments in the majority of countries is a reality. The usage of medicines is brought about by the buying capacity of population at the expense of the various sources that cover the costs. At the same time the competition between the state sector and private suppliers may further promote the solution of problems.

As per article 49 of the Ukrainian Constitution, the state is responsible for creation of an effective and easy access to medical assistance for all citizens, it is forbidden to reduce the number of the state and communal health establishments, which provide for a free medical aid. Despite this, the reduction of the number of the medical establishments in Ukraine continues.

It is necessary to point out that this reduction is taking place under the motto of bringing the number of the state workers to the capabilities of the local budgets. During the last two years 253,5 000 of staff were made redundant and 151,5 of beds were reduced. As a result, the quality of the medical assistance to population has worsened, the number of doctors in some districts reach 32-40%, which is a violation of the constitutional right to health care.

As it had already been stated Chapter III of the Report dealt with a joint work of the Human Rights Commissioner, the Parliamentary Committee on Health Care, Motherhood and Childhood and the Central committee of the medical workers trade union in regard with the decrease of the considerable number of the medical staff and the chain of medical establishments, resulting in the Open Letter of the Commissioner to the top officials of the state – the President, the Parliament Chairman, and the Ukrainian Prime Minister.

The Commissioner is confident that a neglect of the problems of the medical institutions and their insufficient provision with the qualified staff will negatively influence the population’s state of health in general, which is a violation of their constitutional rights.

Among the cases, filed by the Human Rights Commissioner, concerning the unreasonable reduction of the staff, one can mention the case of the liquidation of the obstetric – gynecological department in hospital 2 in Kyiv (Chapter III of the Report).

The first paragraph of the Report’s section IV had it that TB epidemic is getting speed at a dangerous rate in Ukraine. In the opinion of The Commissioner it is a result, to a great extent, of the reduction of the TB beds, which limited the treatment of this sickness. During the Commissioner’s visit to Luhansk district, it was disclosed that TB health center in Krasny Luch faced the reduction of 100 beds out of 180, the Stakhanov similar center is overcrowded by 130 beds, in Krasnodon in 1998 through the lack of beds 11 infected people were refused admission for the first time ever. In general in Ukraine the number of TB clinics reduced by 11%, health resorts of this profile by 28%, stationary beds by 44%.

One of the reasons of such a situation is the weakening of the personal responsibility of the people in charge, executive authority bodies and local self-management for observing the citizens’ constitutional rights to health care and medical aid, preserving the existing chain of the medical institutions in particular.

One cannot but draw the attention to such an important issue as treatment of the sick abroad at state expense. Such a possibility for the sick is the real achievement of democracy; it gives reasons to be proud of the state, which takes care of its citizens, making use of the international medical integration and cooperation in the sphere of health care and medical aid. To meet Article36 of the Fundamentals of Ukrainian Legislation on Health Care, the Cabinet of Ministers adopted the Decree on 8 December No. 991 On Approving the Regulation on the Procedure for Sending Citizens for Treatment Abroad. The Ministry of Finance of Ukraine was ordered – at the time of the annual formation of the state budget – to allocate to the Ministry of Health Care the funds to cover the costs of the patients’ treatment abroad and the Ministry of foreign Affairs to facilitate the establishing of contacts with the medical institutions of other countries, where the Ukrainians are taking treatment.

It is a democratic practice when local health care units are raising issues of sending patients for treatment abroad. The Special Commission, set up at the Ministry of Health Care of Ukraine on the matters of health treatment abroad based of the decision of the leading expert of the corresponding Ministry office, decides if treatment abroad is expedient. However, in this noble matter there appear violations of human rights to medical aid that are caused by bureaucratic delays and philandering at the time of decision making, through lack of funds for solutions of these problems.

For example, the Commissioner received an appeal from Mrs. Bashtanenko, resident of Kremenchuk, the Poltava district, concerning several years philandering at a decision making if her under-age son needed a treatment abroad. Through a medical mistake he acquired post-operational complications, beyond elimination, despite the fact that during 7 years the child had undergone 7 operations in the best clinics of Kyiv, Kharkiv and Moscow. There were cases of philandering on the part of the Ministry of Health Care of Ukraine, despite all necessary papers and agreements with the Israeli clinics to help the child. The Commissioner has initiated the case for child’s right to medical aid and health care violations. As a result, as the Ministry had informed, on 22 December the MOHC Foreign Medical Treatment Commission positively decided to send the sick Bashtanenko to Israel for the allocated funds.

It is necessary to mention the application to the Commissioner of Mrs. Kurochkina with a request for help in financing and treatment of her son abroad, as despite all valid reasons and availability of the papers the Ministry did not even started to look into the matter. The Commissioner initiated an investigation into the case, reasonably detecting the violation of the child’s right to medical aid, and made an appeal to the Ministry of Health Care. At the demand of the Commissioner the Commission of the Ministry of Health Care studied the matter of directing of citizens abroad for treatment and made a positive decision.

In Mrs. Salivon’s appeal from Zhytomyr there is a need for help to provide for a necessary medical examination of her under-age daughter, who requires a complex operation. Thanks to the help of the Human Rights Commissioner, such an examination did take place in the specialized medical center and currently the question of the necessity of the due medical aid by way of international co-operation in the branch of health care is being settled.

The Commissioner has to admit that the system of health care remains one of the spheres, where numerous violations of the human rights take place. To improve the situation in Ukraine it is necessary to start as soon as possible preparation and adoption of a variety of laws and legal norms, which would regulate the principles, rights and guarantees of the medical aid provision, the law on patient’s rights in particular, on doctor’s rights and responsibilities. These legal norms have to match the Ukrainian Constitution, including the standards of the international legal acts, which Ukraine has pledged to pursue. The Ukrainian Ministry of Health Care in its turn has to undertake corresponding steps to further development of biomedical technologies in Ukraine with consideration of the human interests and health and ensure its ethical and legal character; the medical practice should rest on humane basis.

It is becoming actual to create an independent institution on the matters of medical ethics, the functions thereof being the expertise of problem analysis, arising in the genetic engineering, reproductive medicine of transplantology, initiating development of legal and ethical professional norms in the medical sphere, studying the abuse cases of medical services and creation of a basis for their prevention, information and consultation work with the European Council experts on observing of human rights in the medical sphere. Following France, which was the first to set up the National Committee on the issues of medical ethics, similar committees appeared in Italy and Denmark, currently such institutes exist practically in all countries of the Western Europe and America. Unfortunately, a great deal of medical problems are not settled in Ukraine and even hushed up due to the absence of the body with a corresponding status to perform their examination. In said matters this leaves Ukraine beyond the European Community, hampering the information exchange.

Planning of the medical aid volume and creation of such basis to form the medical help structure on the state level, ensuring an effective functioning of all medical institutions, irrespective of their legal status should become the new management elements of health care.

Human Rights Commissioner trusts that on the way to reforms of the system of medicinal supply and constitutional rights to medical assistance in Ukraine, the following aspects ought to be settled:

§ to develop and introduce the state social standards in the sphere of medical care;

§ to ensure constant funding;

§ to determine the list of basic medical preparations to provide population with medicaments within the frames of the state social program in the system of health care and the obligatory medical insurance in future;

§ to perfect the system of the preferential supply of socially unprotected categories of population with medicaments;

§ to form a state pricing policy concerning medicines (price recommendation, profitability margins, sales added value, etc.)

§ to carry out financial measures to control medicaments purchase and their application by the medical prevention institutions (patients’ partial payments for medicines, fixing the budget costs for the discount recipes, design of new mechanisms of control of medicaments, etc);

§ to determine the guaranteed state minimum to facilitate – primarily to the socially unprotected categories – the realization of the constitutional right to health care and obtaining medical aid.

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