Problems of proving improper performance of professional duties by a medical worker (Article 140 of the Criminal Code of Ukraine)

The purpose of this article is to identify the ways to minimize such a socially dangerous act as improper performance of professional duties by a medical professional, and also to study the legitimacy of bringing doctors to liability for failure to perform or improper performance of professional duties, to find out the reasons which cause this type of criminal offenses to be committed, and also to address the issue of the investigation process of bringing a medical professional to criminal liability, which is quite time-consuming given that it takes a long time taking into account the tasks assigned to the pre-trial investigation bodies, accompanied by a set of measures defined by the Criminal Procedure Code of Ukraine, such as assessing the correctness of the manipulations of a medical specialist with the involvement of experts of appropriate qualifications and the seizure of medical records, comparing the protocol tactics of medical treatment and preventive measures by a medical professional with the actions that should have been taken in a given situation). At the same time, the pre-trial investigation authorities are deprived of the opportunity to summon a doctor to testify regarding information constituting medical secrecy, which complicates the conduct of investigative (detective) actions. However, in each case, in order to prove the guilt of a healthcare professional, it is necessary to establish which professional duties were assigned to the person and were not fulfilled at all, which is an absolute inaction of a healthcare professional in a real opportunity to act, and which of such duties were improperly performed, with significant violations of direct duties regulated by job descriptions, qualification requirements and treatment protocols with a clear algorithm of actions, orders and instructions of the Ministry of Health and SES of Ukraine, and WHO recommendations. Clarification of the specifics of the subject matter of proving improper performance of professional duties by a medical or pharmaceutical worker (Article 140 of the Criminal Code of Ukraine) is necessary both in theory and practice. Given the inestimable importance of human health and life as the highest social value, harm caused to them as a result of improperly performed medical intervention is extremely dangerous to society, and therefore requires specific criminal law means of regulation.