Comment to Article 118. Failure to provide assistance to a patient of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan
1. Failure to provide assistance to a patient without valid reasons by a person who is obliged to provide it in accordance with the law or according to a special rule, if this negligently caused moderate harm to the patient's health., -
is punishable by a fine in the amount of fifty to one hundred monthly calculation indices or in the amount of the convicted person's salary or other income for a period of up to three months, or correctional labor for up to one year, or restriction of liberty for up to three years with deprivation of the right to hold certain positions or engage in certain activities for up to two years or without as such.
2. The same act, if it has negligently caused the death of a patient or serious harm to his health, shall be punishable by imprisonment for a term of up to five years with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years.
The Law of the Republic of Kazakhstan "On Public Health Protection in the Republic of Kazakhstan" dated July 7, 2006 established that medical and pharmaceutical workers must provide medical care in accordance with their official duties. Failure to provide such assistance is considered a crime. Article 118 of the Criminal Code provides for criminal liability for failure to provide assistance to a patient without valid reasons by a person who is obliged to provide it in accordance with the law or according to a special rule, if this negligently caused moderate, serious harm to health or death.
The object of the crime is the life and health of a person who needs medical care.
The objective side of the crime is characterized by inaction, i.e. failure to provide care to the patient without valid reasons, regardless of the type of illness. To impute this corpus delicti, it is necessary for the perpetrator to have a legal obligation to provide assistance to the patient who has applied and the absence of valid reasons, which are understood as force majeure circumstances justifying his inaction (illness of the doctor himself, lack of necessary medicines, tools, force majeure, etc.). The question of the validity of the reason is decided individually in each specific case, taking into account all the factual circumstances of the case.
In my opinion, the composition of the crime in question will be not only when assistance is not provided through complete inaction, but also when obviously inadequate, ineffective assistance is provided.
In the science of criminal law, it is customary to divide "assistance" in the sense of this article: situationally necessary, legally permissible and assigned assistance.
Situationally necessary is assistance that arises spontaneously, unplanned, and the quantity and quality of this assistance are limited by the situational capabilities of the person providing assistance, on the one hand, and on the other hand, by the minimal needs of the patient within the framework provided by law.
Only legally permissible assistance is legal. This means that refusing to provide assistance through prohibited actions is not a criminal offense. Thus, the transfer of narcotic drugs to a drug addict, even if this is the only possible way to help in a particular situation, cannot be punishable (for example, a mother is alone at home with her drug–addicted son, the ambulance is not coming or there is no available phone, but she knows where he has drugs, from which he can "get well," but doesn't give them to him).
Assistance is possible when the necessary assistance can actually be provided based on objective circumstances (absence of force majeure, availability of necessary means of assistance). At the same time, situations where the necessary medical care cannot be objectively provided due to the fault of a person who is required by law to be permanently ready to provide assistance are not recognized as valid reasons. So, if a medical team claims that there are no necessary medicines, but in fact they forgot to take them or give them only for a fee, this "lack of"medicines" is not recognized as a valid reason, and the actions of the team fall under the signs of a crime under art. 118 of the Criminal Code.
The issue is solved in a similar way in a situation when a patient is brought to a hospital, but he is not admitted under the pretext that there are no places, and without providing situationally necessary assistance, he is sent to the next hospital. Committing such acts falls under Article 118 of the Criminal Code.
At the same time, when providing assistance, a person has the right not to put himself in excessive danger, which is not provided for by direct professional duties. A nurse who happens to be on the scene is not obligated to enter a burning car that is about to explode in order to rescue the injured. When providing assistance, it does not matter whether the patient was intentionally in a state requiring help. Thus, an unsuccessful suicide, regardless of his desire, must be provided with the necessary medical care.
To bring the perpetrator to criminal responsibility, the consequences specified in the norm must occur (Part 1 of Article 118 of the Criminal Code — negligent infliction of moderate harm to health, part 2 of Article 118 of the Criminal Code — negligent infliction of death to a patient or causing serious harm to his health). At the same time, it is necessary to establish a causal relationship between the criminal inaction of a medical worker and harmful consequences.
The subjective side of the crime is characterized by two forms of guilt: intent in relation to inaction, i.e. failure to fulfill professional duties to help the patient, and carelessness (arrogance and negligence) in relation to the consequences that have occurred.
The subject of a special crime is a sane individual who has reached the age of 16, who, in performing his professional duties, must provide assistance in accordance with the law or special rules.
Commentary from 2007 to the Criminal Code of the Republic of Kazakhstan from the Honored Worker of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences BORCHASHVILI I.Sh.
Date of amendment of the act: 08/02/2007 Date of adoption of the act: 08/02/2007 Place of acceptance: NO Authority that adopted the act: 180000000000 Region of operation: 100000000000 NPA registration number assigned by the regulatory body: 167 Status of the act: new Sphere of legal relations: 028000000000 Report form: COMM Legal force: 1900 Language of the Act: rus
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