Инновационные медицинские технологии и реализация права на жизнь и здоровье (на примере вакцинации): гражданско-правовой аспект

Abstract

Innovative medical technologies are rapidly introduced into everyday life, so for civil science it is very important to anticipate and reflect any potential threats to their use. The article aims to study the ways to modernize the safeguarding arrangements and the institutions protecting the right to life and human health through the prism of vaccination of the population taking into account the possible risks and the degree of legislative elaboration of the legal mechanisms for the protection of patients' rights. By means of analysis and synthesis methods, the article analyzes the statutory instruments that regulate basic principles, procedures and consequences of vaccination. The use of the dialectical method allowed the author to identify the contradictions in the enforcement of health protection legislation and immunoprophylaxis in conjunction with the norms of civil law; the systematic approach guaranteed a structured presentation of the material. Formal legal and functional methods provided for an overall systematization of the studied legal relations and helped to formulate the definition of “medical technology” as an object of civil law with its functions, application safety aspects and responsibility for shortcomings. Though the role of medical technologies in the protection and security of human health is steadily increasing, there is a lack of doctrinal research on the civil law specifics of their application. Having recognized medical technology as an object of civil law, the author formulated its content and proposed to legalize it in the Federal Law “On the Basics of Protecting the Health of Citizens in the Russian Federation”. The author defines vaccination with immunobiological medical products as a medical technology component and a medical service, and concentrates on the deficiency of the legislative consolidation of safety criteria and their provision quality accessed by the degree of achievement of the planned result (the presence of immunity). In this regard, the author proposes to introduce a mandatory free testing for the presence of antibodies and to develop a vaccination procedure with a clear indication of the quality criteria for this type of service. The author concludes that the use of Section III of Chapter 59 of the Civil Code of the Russian Federation and the Law on Consumer Protection cannot meet the proportionality and fairness criteria and reflect the specifics of the use of innovative medical technologies; therefore, it is proposed to apply the provisions of Article 1079 of the Civil Code of the Russian Federation before the development and implementation of mandatory requirements for vaccination against COVID-19, i.e., the protection of intangible rights should be carried out through the institution of liabilities for the risks caused by a hazardous source. The article also contains special proposals for improving Russian legislation and some conclusions on the amendments to the Civil Code of the Russian Federation.