LEGAL CUSTOM AS SOURCE OF LAW AND RELATIONS IN THE FIELD OF MEDICAL AID PROVISION REGULATOR (Правовий звичай як джерело права та регулятор відносин у сфері надання медичної допомоги)
Journal Title: Медичне право - Year 2017, Vol 1, Issue 2
Abstract
The clarification of the role of the legal custom in the regulation of legal relations in the field of medical care not only makes it possible to investigate the significance of the legal custom for regulating this type of social relations, but also contributes to the comprehensive study of sources of legal relations in the provision of medical care normative regulation, despite the fact that at the present stage of the development of civil legal science and approaches to the legal regulation of civil legal relations, its sphere of action and role in civil legal relations isslightly narrowing. The paper aims to highlight the significance of the legal custom as a source of relations in the field of medical aid legal regulation, the characteristic features thereof with its projection of the sphere of social relations for the provision of medical care and outlining of legal customs, which serve as regulators of civil legal relations in this area. Legal custom is historically the first main source of law. Inherent in all the legal systems of the past, it acquired legal characteristics as a result of prolonged use and recognition by state authorities. Modern understanding and the place of the legal custom in the system of sources of law are the result of its evolution, which took place in different legal systems in different ways. Ethnological and historical legal science interpret custom under two approaches: normative, based on the perception of the custom as an unchanging mandatory norm; sociological and anthropological, adherents of which consider flexibility, variability, adaptability to be th edecisive features of custom. On analyzing the legal custom category development in the domestic context, it can be noted that, in fact, from the second half of the 20th century, the Soviet legal doctrine took the position of the significance of the legal custom as a source of existing national law entire denial, allowing its use only in international law. The use thereof as a legal category in law enforcement became possible after the adoption of a number of legislative acts, which authorized the use of legal customs to regulate social relations. For example, Art/ 7 of the Civil Code of Ukraine legally fixed the definition of the concept of legal custom as a rule of conduct, not established by acts of civil law, but existing, at the same time in a certain area of civil relations. The vocation for custom in the regulation of civil legal relations is also contained in other norms of the Civil Code of Ukraine. Nevertheless, Civil Code of Ukraine does not regulate application of customs in the field of medical legal relations. The essential features of a legal custom as a legal category are the following: 1) duration of application (custom, as a rule of conduct, should be applied for a certain period of time, if the custom ceases to apply, social norm enshrined in it, becomes forgotten, and the custom ceases to exist); 2) systematic (repeated) application (legal custom shall be applied continuously); 3) fatigue (legal custom, due to repeated application, is perceived by society or a significant part of society as a rule of conduct, which is followed without further formalization, in particular due to historical, national, social traditions); 4) the certainty of the content (unlike the normative act, which is fixed in writing, legal custom is fixed in the minds of people and does not necessarily have to be fixed in the written document); 5) authorization by state (custom is sanctioned by the state and becomes a source of law, therefore, not all customs, but only those that are in the interests of the state and society are legal); 6) the guarantee of observance (the legal force of a legal custom, as well as any legal norm, is guaranteed by the possibility of using state coercion). There are the following terms of legal custom application: 1) the existence of unregulated by law or contract social relations; 2) the absence of contradictions to it in the contract or acts of civil law. The procedure for custom state authorization is important for the clarification of the nature thereof. Thus, the customs become obligatory for the application by the parties of relations, provided the preliminary agreement between them. In addition, legal custom can be considered to be authorized, if there is a direct indication in the legal act. However, if customary rules are transformed into normative legal requirements, then another law source - legal act - is subject to application. Therefore, the custom is sanctioned by the state in the process of judicial or administrative activity by formalizing in the regulatory acts the possibility of using the custom to regulate certain social relations or the authorities’ "tacit consent" to the practice of applying custom in certain legal relationships, or the inclusion of custom in legislative acts, codes of customary law. Legal customs can be divided into two groups according to the form of expression: 1) fixed in the relevant documents (for example, the codifications of ethical norms adopted by professional corporations in Ukraine); 2) not fixed in the documents, i.e., the legal axioms, which are not explicitly recorded anywhere, but taken into account contractual parties. It is important to make difference between the notions of "custom", "the custom of medical practice" and "legal custom in the field of medical care". The custom is a rule of human behavior that has developed in the process of living together because of its actual use for a long time. The main difference between the concepts of "custom" and "legal custom" is the recognition and authorization of the latter by state. The term "custom of medical practice" refers to the established rules of conduct that are developed by the medical community and used by medical staff in the organization of providing or providing medical care to the population. At the same time, the notion of a legal practice in the field of health is narrower in scope and concerns only those rules of conduct that are recognized and legalized by the state in the absence of positive or contractual regulation of the relevant relations in the field of medical care. There are only few customs that regulate the named type of social relations and correspond to the features of a legal custom. These legal customs include, in particular, the rule about “ward doctors” in the health care institutions. The institution of “ward doctor” is not regulated current legislation in detail, as opposed to the legally prescribed concept of a "curating doctor". Today, physicians in health care institutions routinely perform the functions of ward doctors, who provide medical care to patients in the ward attached to them and are responsible, in particular, for compliance with internal rules of order, sanitary regime, etc. in particular ward. Another common practice in the field of medical care, which can be considered as legal custom, is the rule under which doctors’ congress was introduced in health care institutions. For the healthcare sector, this concept has long been well-established, although the current legislation does not contain a definition of the concept of "doctors’ congress". In medical legal literature, this term is understood as the meeting of doctors of one or several specialties, which is convened to clarify issues regarding the nature of the disease, methods and means of treatment. Also, doctors’ congress can be deemed as the form of medical care provision organization, which consists of not less than three medical workers, who work together, directing efforts to ensure the patient's right to health care. Despite the fact that domestic law uses terminology "doctors 'congress", it does not contain a clear procedure that would determine the procedure for convening a such congress and an exemplary list of cases in which it is advisable to convene thereof. Thus, medical workers continue to use the statutory instrument that has expired, as customary norms, since the procedure and conditions for convening doctors' congress are not regulated by Ukrainian legislation. Legal custom regarding congress may not be applied, if the procedure for its convening is regulated by a local act of a health care institution. Thus, the normative regulation of the doctors' congress institution gradually replaces the corresponding legal custom. The concept of "telemedicine congress" at the normative level and the regulation of the procedure and conditions for its implementation clearly illustrate the process of transforming the legal custom into a norm of law and the actual cessation of the existence of such a legal custom. Taking into account the above, the legal custom in the field of medical care can be defined as a state-sanctioned rule of conduct that, as a result of its multiple applications, became mandatory and applies in health care facilities for organization of provision and provision of medical care to patients. All in all, there can be made the following conclusions: 1) as a rule, custom, which subsequently becomes legal, in the absence of legislative and contractual regulation, is created by the medical staff themselves; 2) legal customs in the field of medical care are applied when there is no positive regulation and the so-called tacit consent of the authorities; 3) the rules that form legal customs are created in order to optimize the process of medical care organizing and provision thereof to the population; 4) customary regulation will disappear, and legal custom can be transformed into a normative plane with the emergence of a regulatory framework formed on the principle of legal certainty.
Authors and Affiliations
Iryna Senyuta
Keywords
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- EP ID EP429300
- DOI 10.25040/medicallaw2017.02.059
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