25 May 2018
Mykhailo Honcharov tells about three aspects of collecting evidence when defending doctors
Where a health professional is served a notice of suspicion of professional misconduct in accordance with Article 140 of the Ukrainian Criminal Code, he becomes an advocate’s ‘patient’ within the meaning of the Criminal Procedural Code. If that is the case, a successful solution to the problem directly depends on the full disclosure of a ‘disease history’ as in the case of an appointment at the doctor’s.
Drozdova & Partners Law Firm senior partner Mr Mykhailo Honcharov has told about key aspects of defending health or pharmacy professionals in criminal proceedings for professional misconduct as part of the round-table discussion entitled ‘Problems of Defending Parties to Health Care Relations in the Light of the Health Care Reform’ that took place at the Zaporizhzhia State Medical University on 25 May 2018.
In particular, the expert has drawn attention to three key aspects of collecting information that is necessary to have criminal proceedings closed by an investigator or to prove in court that a person is innocent.
First, a doctor should, to the maximum extent possible, explain to the advocate aspects of his work and different local regulations that the doctor is required to comply with in his practice. ‘Any small thing may matter. It is necessary to call to memory all circumstances of the execution and issue of medical documents required for a given type of medical aid. It is advisable not only to call them to memory, but also to provide information on such circumstances along with relevant explanations to the advocate who should check whether the information in question is complete and complies with the rules applicable to similar medical documents,’ Mr Honcharov has pointed out. Regulatory sources and copies of relevant documents will certainly be of help in developing the defence case. Where the doctor has given certain medical treatment to his patient, he, during his report in court, is expected to clearly specify that such treatment is compliant with the applicable health care rules and to prove that he has acted in line with the said rules.
Second, where medical treatment has been given not only by the doctor but also by other health care professionals, such persons may serve as defence witnesses. ‘In this case, the advocate is encouraged to exercise his authority set forth in article 20 of the Ukrainian Law on Advocacy and Advocates, and to obtain information from such health care professionals by written interview,’ the expert has recommended. They are also expected to confirm the professional behaviour of the doctor by reference to relevant rules and regulations.
Third, it is also recommended that assistance be sought from relevant experts, particularly those specialised in forensic medicine. Although they are not experts practicing in relevant governmental institutions, their advisory opinion based on the findings of the documents examination will lay the foundation for the defence case.