Human Rights in Patient Care: A Practitioner Guide UKRAINEU K R A I N E L’viv Publishing House “Medicine and Law” 2012 UDC 342.951:351.778(477) Byrne I., Ezer T., Cohen J., Overall J., Senyuta I. Human Rights in Patient Care: A Practitioner Guide/ Under scientifi c editing of Senyuta I. – L’viv: LOBF Publishing House “Medicine and Law”, 2012. – 497 p. ISBN 978-966-2019-17-9. Practitioner Guide belongs to the series of books, prepared within the frameworks of in- ternational project of the Open Society Institute. The book elucidates the rights and duties of patients and medical workers, forms and ways of these rights protection on the inter- national, regional and national levels. The issues of forensic examinations fulfi llment are also highlighted in the manual. The book contains a number of constitutional provisions, legal norms of laws and bylaw acts regulating every right and duty separately together with practical examples of their observance and violation, as well as examples from legal practice and useful pieces of advice as regards understanding and application of law. Appendixes contain samples of procedural documents, list of literature used, reference information and glossaries (international and national). The edition is designed for lawyers, who are interested in protection of human rights in health care sphere as well as for representatives of law enforcing bodies. It can be also useful for health care system workers, participators of the insurance market services, stu- dents, postgraduates, scientists and lecturers of medical and law educational institutions, law enforcing organizations and physical persons who are interested in legal regulation of the health care sphere. All practitioner guides are displayed on the web site www.health- rights.org. UDC 342.951:351.778(477) © Bern I., Ezer T., Cohen J., Overall J., Senyuta I., 2012 © Senyuta I., scientifi c editing, 2012 © Open Society Institute, 2012 © International Renaissance Foundation, 2012 ISBN 978-966-2019-17-9 © LOBF Publishing House “Medicine and Law”, 2012 2 CONTENTS Preface 4 Acknowledgments 6 Foreword to Ukrainian Edition 8 1 Introduction 10 2 International Framework for Human Rights in Patient Care 22 3 Regional Framework for Human Rights in Patient Care 94 4 International and Regional Procedures 150 5 Country-Specifi c Notes 168 6 National Patients’ Rights and Responsibilities 180 7 National Providers’ Rights and Responsibilities 300 8 National Procedures and Appendixes 382 Glossaries 454 3 Preface The right to health has long been treated as a "second generation right," which implies that it is not enforceable at the national level, resulting in a lack of attention and investment in its realization. However, this perception has significantly changed as countries increasingly incorporate the right to health and its key elements as fundamental and enforceable rights in their constitutions and embody those rights in their domestic laws. Significant decisions by domestic courts, particularly in Asia, Africa, and Latin America, have further contributed to the realization of the right to health domestically and to the establishment of jurisprudence in this area. Although these and other positive developments toward ensuring the highest attainable standard of physical and mental health represent considerable progress, the right to health for all without discrimination is not fully realized, because, for many of the most marginalized and vulnerable groups, the highest attainable standard of health remains far from reach. In fact, for many, interaction with health care settings and providers involves discrimination, abuse, and violations of their basic rights. As I explored in my report to the UN General Assembly on informed consent and the right to health, violations to the right to privacy and to bodily integrity occur in a wide range of settings. Patients and doctors both require support to prevent, identify, and seek redress for violations of human rights in health care settings, particularly in those cases in which power imbalances–created by reposing trust and by unequal levels of knowledge and experience inherent in the doctor-patient relationship–are further exacerbated by vulnerability due to class, gender, ethnicity, and other socioeconomic factors. Although there are a large number of publications on the principles of human rights, very little has been available in the area of the application of human rights principles in actual health care settings. In this context, the present guide fills a long-felt void. The specific settings detailed in this guide are Eastern European countries, but the guide is useful beyond this context in the international settings. I hope it will encourage the establishment of protective mechanisms and legislative action relating to violations within health care settings. Not only will it help to support health care providers, legal practitioners, and health activists to translate human rights norms into practice, it will also ultimately help communities to raise awareness, mobilize, and claim the rights they are entitled to. The authors have done a huge service in furthering the right to health. They deserve full credit for undertaking this arduous task. The Open Society Institute 4 HUMAN RIGHTS IN PATIENT CARE: UKRAINE also needs to be thanked for funding and publishing this very important work. I have no doubt that this practitioner guide will generate a greater appreciation for the role of human rights in the delivery of quality health care in patient care settings and will also prove to be an invaluable resource for those working to realize the right to health. Anand Grover United Nations Special Rapporteur on the Right to Health 5 Acknowledgments This guide is the product of the cooperative effort of a number of dedicated people and organizations. The idea grew out of genuine concern and the sincere belief of many of these individuals that, considering the dependent position of patients in relation to their health care providers, the promotion of human rights norms in the realm of patient care will secure the human dignity of both patients and health care professionals alike. Organizations supporting this project include the International Renaissance Foundation (Ukraine), the Law and Health Initiative (LAHI) of the Open Society Institute Public Health Program, and the OSI Human Rights and Governance Grants Program (HRGGP). Much appreciation is owed to the individuals from these organizations who were most directly involved: Victoria Tymoshevska and Maria Vynnytska (International Renaissance Foundation) for coordination of the project; Tamar Ezer and Jonathan Cohen (LAHI), who, in addition to fulfilling general oversight and editing responsibilities, coauthored the introduction with Judith Overall and also coauthored the international and regional procedures chapter;1 Mariana Berbec Rostas (HRGGP), for updating the regional procedures section; Paul Silva (OSI Communications Officer), for his advice and coordination of work on the guide's design; and Jeanne Criscola, the designer. Special thanks is owed to Iain Byrne, Senior Lawyer at INTERIGHTS, for writing the chapters on the international and regional frameworks for human rights in patient care and for preparing the glossary with Judith Overall and to Leo Beletsky for review of the domestic portions of the PG draft. Thanks are also due to Sara Abiola for the language and format editing of the international and regional framework chapters and to Anna Kryukova for preparing the ratification chart. Also deserving thanks are Dmytro Klapatyi, Oksana Kohut, Olena Chernilevska (All-Ukrainian public organization “Foundation of medical law and bioethics of Ukraine) for the updates of the national part of the guide. We would also like to thank Natalia Kariaeva for translation of the national part, Lyubov Kyrienko for literary editing and Vitaliy Slichnyi for formatting of the Ukrainian version. 1 This chapter builds on material in Health and Human Rights: A Resource Guide, published by Open Society Institute and Equitas and edited by J. Cohen, T. Ezer, P McAdams, and M. Miloff. An HTML version of this resource guide is available at: http:// equalpartners.info/ (Ukrainian version: Health Care and Human Rights: A Resource Guide/ edited by J. Cohen, T. Ezer, P McAdams, and M. Miloff; translated from English by N. Shevchuk; scientific editor of the Ukrainian version I. Senyuta. – enlarged edi- tion. – L’viv: Editorial house LOBF “Medicine and law”, 2011. – 600 p., is available on the web site www.healthrights.org.ua). The appendix to the international and regional procedures chapter is excerpted, with permission, from the Human Rights Centre, University of Essex, publication Reported Killing as Human Rights Violations, by Kate Thompson and Camille Giffard, pages 127–130. 6 HUMAN RIGHTS IN PATIENT CARE: UKRAINE Thanks is also owed to Andryi Rokhanskyi (Law enforcement group of Charkiv), Dmytro Groysmam, Victor Rolik (Law enforcement group of Vinnitsa), Zoryana Chernenko (National University of Kyiv-Mohyla Academy), Khrystyna Tereshko (All-Ukrainian public organization “Foundation of medical law and bioethics of Ukraine”), Lyudmyla Deshko (Donetsk National University), Lyudmyla Solop (lawyer) Oleksandr Angelov, Victor Gluhovskyi (South Ukrainian centre of citizen’s rights in the sphere of health protection) for their commentaries. Finally, this guide would not exist if it were not for the enthusiasm and personal dedication paid to this project by Judith Overall, OSI Consultant,