Commentary on Article 317 of the Criminal Code of the Republic of Kazakhstan. Improper Performance of Professional Duties by a Medical or Pharmaceutical Worker

1. Failure to perform or improper performance of professional duties by a medical or pharmaceutical worker due to negligent or dishonest attitude towards those duties, if these acts negligently result in the infliction of moderate bodily harm to a person, —

shall be punishable by a fine in the amount of up to two hundred monthly calculation indices, or correctional labour in the same amount, or community service for a period of up to one hundred and eighty hours, or arrest for a period of up to fifty days.

2. The acts provided for in part one of this Article, which negligently result in the infliction of serious bodily harm, —

shall be punishable by a fine in the amount of up to three thousand monthly calculation indices, or correctional labour in the same amount, or restriction of liberty for a period of up to three years, or imprisonment for the same period, with deprivation of the right to hold certain positions or engage in certain activities for a period of up to one year, or without such deprivation.

3. The acts provided for in part one of this Article, which negligently result in the death of a person, —

shall be punishable by imprisonment for a period of up to five years, with deprivation of the right to hold certain positions or engage in certain activities for a period of up to three years.

4. The acts provided for in part one of this Article, which negligently result in the death of two or more persons, —

shall be punishable by imprisonment for a period of three to seven years, with deprivation of the right to hold certain positions or engage in certain activities for a period of up to three years.

5. Improper performance of professional duties by a medical worker, as well as by an employee of an organisation providing household or other public services, due to negligent or dishonest attitude towards those duties, if this act results in another person becoming infected with HIV, —

shall be punishable by imprisonment for a period of up to five years, with deprivation of the right to hold certain positions or engage in certain activities for a period of up to three years.

The rights of every person to health protection and medical care are universally recognised norms of international law, enshrined in the Universal Declaration of Human Rights (Article 25).

In accordance with Part 2 of Article 29 of the Constitution of the Republic of Kazakhstan, the right to medical care is one of the inalienable constitutional rights of citizens.

The public danger of the criminal offence provided for in Article 317 of the Criminal Code (Part 1 — a criminal misdemeanour; Parts 2, 3, 4 and 5 — crimes) lies in the fact that improper performance of professional duties by medical or pharmaceutical workers gives rise to citizens' distrust of domestic medicine and undermines the prestige of healthcare authorities. An irresponsible attitude towards one's professional duties poses a real threat to the lives and health of citizens.

The Law of the Republic of Kazakhstan dated 6 January 2012, “On National Security of the Republic of Kazakhstan”, provides for the fundamental national interests and threats to national security. In particular, achieving and maintaining the level and quality of the healthcare system ranks sixth among the eighteen fundamental national interests. A decline in the level and quality of healthcare ranks fourth among the twenty threats to national security. In other words, harm is caused not only to social relations aimed at protecting and safeguarding the life and health of individual citizens, but also to the nation as a whole.

The object of the criminal offence under consideration is the social relations centred on compliance with the established rules for providing medical care. By failing to comply with the procedure or standards for providing medical care, a medical worker encroaches upon social relations aimed at protecting and safeguarding the life and health of an individual.

The additional direct object is the social relations guaranteeing the protection of the life and health of a patient.

The objective element of the criminal offence provided for in Parts 1, 2, 3 and 4 of Article 317 of the Criminal Code consists in the failure to perform or improper performance of professional duties by a medical or pharmaceutical worker due to negligent or dishonest attitude towards those duties, as well as in non-compliance with the procedure or standards for providing medical care, which negligently results in the infliction of moderate bodily harm (Part 1), serious bodily harm (Part 2), the death of a person (Part 3), or the death of two or more persons (Part 4).

The disposition of the criminal law provision under consideration is of a blanket nature and does not define the characteristics of improper performance of professional duties. In this regard, it is necessary to establish the departmental and local regulatory acts (orders, instructions, regulations) issued by the ministry, departments or other healthcare entities that regulate the activities of medical workers when providing medical care. Accordingly, these regulatory legal acts contain provisions defining the qualification requirements and functional duties of medical and pharmaceutical workers, as well as the rules (instructions, methodological recommendations), procedures and standards for providing medical care. In other words, they specifically indicate what knowledge and skills a medical worker must possess and what particular medical care they must be able to provide when performing their professional duties. Such regulatory legal acts include, for example, the Orders of the Minister of Healthcare of the Republic of Kazakhstan dated 21 December 2020, “On Approval of the Nomenclature of Specialties and Specialisations in the Field of Healthcare, the Nomenclature and Qualification Characteristics of Positions of Healthcare Workers”; and dated 22 October 2020, “On Approval of Qualification Requirements for Medical and Pharmaceutical Activities”; as well as various standards for providing medical care approved by the Minister of Healthcare (standards for the accreditation of healthcare organisations, standard operating procedures, standards of medical and pharmaceutical education, standards in the field of circulation of medicinal products, medical devices and medical equipment, standards for organising the provision of medical care, and standards for digitalisation in the field of healthcare). The standards for providing medical care include such standards as the “Standard for the Organisation of Neurological Care”, the “Standard for the Organisation of Oncological Care”, the “Standard for the Organisation of Psychiatric Care”, the “Standard for the Organisation of Primary Healthcare”, the “Standard for the Organisation of Pulmonological Care”, clinical protocols of the Ministry of Healthcare, and others.

For the proper legal classification of the actions of medical personnel in the context of the objective element, the above-mentioned standards for providing medical care are of great importance. It should be noted that there is a separate standard for providing medical care for each type of disease, which regulates the requirements for the process of providing medical care corresponding to a particular type of pathology. These standards for providing medical care have been developed taking into account the capabilities of modern highly effective technologies for the prevention, diagnosis, treatment and rehabilitation of citizens in need of medical care.

According to Subparagraph 87) of Paragraph 1 of Article 1 of the Code of the Republic of Kazakhstan “On Public Health and the Healthcare System”, a standard in the field of healthcare is a regulatory legal act establishing rules, general principles and characteristics to ensure standardisation in the field of healthcare, in the areas of medical and pharmaceutical activities, educational and scientific activities in the field of healthcare, and digital healthcare. Accordingly, non-compliance with the procedure or standards for providing medical care means non-compliance with a regulatory legal act governing the work of a medical or pharmaceutical worker.

Failure to perform professional duties should be understood as a criminal act in the form of omission, where a medical worker fails to perform actions prescribed by regulatory or local legal acts governing their professional activities.

Improper performance of professional duties is expressed in the actions of a medical or pharmaceutical worker within the scope of their professional duties, but performed not in the manner required by the interests of the matter. By virtue of their education and position held, a medical worker must realise that their actions are incorrect. Thus, in the case of improper performance of professional duties by a medical or pharmaceutical worker, professional duties are performed in violation of the applicable requirements or not in full (partially).

At the same time, improper performance of professional duties by a medical or pharmaceutical worker is committed in the form of an action, but may also be expressed in the form of omission. For example, during surgical procedures, the use of a gauze dressing by a medical worker was necessary, and its introduction into the patient's body does not constitute an unlawful act. However, leaving it inside the patient's body constitutes an unlawful act, since the medical worker's actions must be aimed at preventing foreign objects from being left inside the patient's body. Therefore, leaving a gauze dressing inside the patient's body in this case constitutes an act committed in the form of omission.

Professional duties of medical or pharmaceutical workers should be understood as the provision of medical services to citizens and the provision of medical care. Medical services, in turn, mean actions of healthcare entities having a preventive, diagnostic, therapeutic, rehabilitative or palliative purpose in relation to a specific person.

When establishing the elements of the objective side of the analysed criminal offence, law enforcement authorities, in addition to establishing the very fact of failure to perform or improper performance of professional duties, or non-compliance by a medical worker with the procedure or standards for providing medical care, must establish the level of professional training of the medical worker, the causes of the criminally punishable consequences, and the causal relationship between the unlawful actions of the medical worker and the consequences that have occurred.

By its structure, the composition of the criminal offence is material. In this regard, the objective side of this act includes three mandatory elements. Firstly, it is a socially dangerous act consisting in the failure to perform or improper performance by a medical or pharmaceutical worker of their professional duties; secondly, socially dangerous consequences expressed in harm to human life and health; and thirdly, a causal relationship between the violations and the consequences specified in the law. Accordingly, the act is considered completed from the moment socially dangerous consequences occur. The disposition of this criminal offence does not contain optional elements (time, place, method, circumstances, instruments and means of committing the criminal offence). Consequently, the above-mentioned elements shall not be relevant when qualifying the criminal offence provided for in Article 317.

In Part 1 of Article 317 of the Criminal Code, the legislator has provided for the negligent infliction of moderate bodily harm as a socially dangerous consequence of failure to perform or improper performance of professional duties by a medical or pharmaceutical worker; in Part 2 of the Article under consideration — the negligent infliction of serious bodily harm; in Part 3 — causing death by negligence; in Part 4 — causing the death of two or more persons by negligence; and in Part 5 — infecting another person with HIV.

In accordance with Subparagraph 11) of Article 3 of the Criminal Code, the infliction of serious bodily harm means harm to a person's health that is dangerous to their life, or other harm to health resulting in loss of vision, speech, hearing or any organ; loss by an organ of its functions; permanent disfigurement of the face; a health disorder associated with a significant permanent loss of general working capacity of at least one third; complete loss of professional working capacity; termination of pregnancy; mental disorder; or drug addiction or toxicomania.

The infliction of moderate bodily harm means harm to a person's health that is not dangerous to their life and has caused a prolonged health disorder (for a period exceeding twenty-one days) or a significant permanent loss of general working capacity (less than one third) (Subparagraph 12) of Article 3 of the Criminal Code).

Death is the cessation of the vital activity of an organism. The moment of a person's death is the occurrence of biological death. According to Article 153 of the Code of the Republic of Kazakhstan “On Public Health and the Healthcare System”, biological death is the cessation of the vital activity of an organism in which vital functions have irreversibly ceased.

The subjective element of a criminal offence committed by a medical or pharmaceutical worker due to negligent or dishonest attitude towards their professional duties is of great importance for the legal classification of offences, bringing persons to criminal liability and imposing punishment.

The disposition of Article 317 of the Criminal Code contains the wording “due to negligent or dishonest attitude towards them”. The reference to negligence indicates an imprudent form of guilt in relation to the act itself. At the same time, the fact that, in addition to the word “negligent”, the text of the law also contains a reference to “dishonest attitude towards them”, that is, towards the duties, cannot be ignored. Accordingly, with regard to the very fact of failure to perform or improper performance of professional duties, an intentional form of guilt may also be established, in particular, indirect intent, in which the medical worker is aware of the social danger of their actions (omissions), foresees the possibility of adverse consequences, does not wish their occurrence, but consciously allows such consequences to occur or treats them with indifference. Nevertheless, it is necessary to take into account the circumstance that the very fact of failure to perform or improper performance of professional duties by a medical employee does not in itself constitute a criminally punishable act.

The obligation of medical workers to foresee the possibility of socially dangerous consequences arising from their professional obligations, which consist in the proper provision of medical care. However, the mere existence of an obligation to foresee the occurrence of a socially dangerous result is not grounds for bringing a person to criminal liability, since, in addition to the obligation to foresee adverse consequences, it is necessary to establish that the guilty person had a real opportunity to prevent the occurrence of adverse consequences but failed to make use of that opportunity, as a result of which socially dangerous consequences occurred.

A person's ability to foresee socially dangerous consequences also follows from the individual qualities of the guilty person, such as their level of education, qualifications, professional experience, length of service, state of health, and others. However, establishing an imprudent form of guilt in the form of negligence does not always depend on the professional experience of a medical worker. Thus, for example, a newly employed medical worker with little professional experience is just as obliged to foresee the adverse consequences of their unlawful actions (omissions) as an experienced medical worker with many years of professional service.

A dishonest employee should be understood as an employee who does something dishonestly, negligently or poorly.

In the case of a dishonest attitude, a medical worker treats their professional duties dishonestly, improperly, unscrupulously, without conscience or indifferently, that is, they demonstrate a lenient attitude towards the unlawful actions being committed, while foreseeing the possibility of socially dangerous consequences. Consequently, a dishonest attitude towards professional duties, as noted above, has the characteristics of an intentional form of guilt in the form of indirect intent, that is, the medical worker is aware of the social danger of their actions, foresees the occurrence of adverse consequences, does not wish their occurrence, but consciously allows them to occur or treats them with indifference.

With regard to the consequences, the offence under consideration is characterised by guilt in the form of negligence, since the legislator has expressly indicated this in the disposition of the Article.

Overall, the subjective element of the act under consideration is characterised by an imprudent form of guilt.

Motive and purpose, as optional elements of the subjective side of failure to perform or improper performance of professional duties by a medical or pharmaceutical worker, are not mandatory, since they are not provided for by the legislator in Article 317 of the Criminal Code. Since the act expressed in the failure to perform or improper performance of professional duties is generally imprudent, motives and purposes in this offence are applicable not to the act as a whole, but only to the fact of failure to perform or improper performance of professional duties. Despite this, they are of significant practical importance when determining the degree of public danger of the offence and imposing punishment. Establishing the motive and purpose of an act expressed in improper performance of professional duties enables law enforcement authorities to determine the medical worker's attitude towards the performance of their professional duties and, accordingly, towards public interests, as well as to understand the guilty person's life values.

The subject of the criminal offence commented on, in addition to the general characteristics (a sane individual who has attained the age of sixteen), must also possess special characteristics. Such subjects may be medical and pharmaceutical workers having the appropriate education.

In the Republic of Kazakhstan, the range of persons entitled to engage in medical (pharmaceutical) activities is defined at the legislative level. Thus, according to Article 270 of the Code of the Republic of Kazakhstan “On Public Health and the Healthcare System”, the right to engage in medical activities belongs to employees who have technical and vocational, post-secondary, higher or postgraduate medical education, confirmed by a specialist certificate in the field of healthcare.

In accordance with Article 1 of the above-mentioned Code, individuals who have professional medical education and carry out medical activities are considered medical workers; individuals who have pharmaceutical education and carry out pharmaceutical activities are considered pharmaceutical workers.

According to Article 317 of the Criminal Code, a medical worker who has committed a socially dangerous act expressed in the failure to perform or improper performance of professional duties is regarded under criminal law as a special subject, since, in addition to the mandatory characteristics established in Article 15 of the Criminal Code (a sane individual who has attained the age established by law), the medical worker also possesses additional characteristics (a person who has professional medical education and medical duties). Thus, the subject of the criminal offence provided for in Article 317 of the Criminal Code may only be medical employees who have the appropriate education and upon whom the obligation to provide medical care to citizens has been imposed at the legislative level.

The possession of appropriate education, as well as the existence of a legally imposed obligation to provide medical care, constitute mandatory characteristics of the special subject of the criminal offence under consideration. In the absence of these characteristics, a person shall not be held criminally liable.

It should be noted that, when defining the subject of this criminal offence, the legislator did not take into account such a characteristic as possession of a particular speciality (specialisation). According to the standards for providing medical care regulating the procedure for providing medical care, a medical worker is not entitled to engage in a particular type of medical activity if they do not have the relevant specialised training. Thus, for example, a general practitioner who does not have specialised (profile-specific) training is not entitled to provide specialised medical care to patients with diseases falling under the profile of “neuropathology”.

For the proper legal classification of unlawful actions by medical workers, it is necessary to establish precisely which functional duties were violated: professional duties or official duties.

The definition of the concept of an official is provided in Subparagraph 26) of Article 3 of the Criminal Code. Officials in the healthcare sector include heads of medical institutions, chief physicians of polyclinics, heads of departments of polyclinics or hospitals, heads of military hospitals, that is, persons vested with the authority to perform legally significant actions and whose functional duties include managing the official activities of subordinate employees, a team, a work area, etc.

A medical worker who is an official may be held criminally liable as an official only if their improper performance of professional duties is of an organisational and administrative or administrative and economic nature. In such a situation, the actions of the guilty person shall be qualified under Article 371 of the Criminal Code, “Negligence”.

Ordinary medical employees whose functional duties do not include organisational and administrative or administrative and economic powers cannot be held criminally liable under Article 371 of the Criminal Code, “Negligence”.

In Part 5 of Article 317 of the Criminal Code, the legislator has provided, as an independent corpus delicti, cases of infecting another person with HIV as a result of improper performance of professional duties by a medical worker, as well as by an employee of an organisation providing household or other public services, due to negligent or dishonest attitude towards those duties.

The objective side of the crime provided for in Part 5 of Article 317 of the Criminal Code consists in the improper performance of professional duties by a medical worker, as well as by an employee of an organisation providing household or other public services, due to negligent or dishonest attitude towards those duties, if this act results in another person becoming infected with HIV. Improper performance of professional duties resulting in HIV infection may be expressed both in an action (for example, the use of non-disposable or non-sterile syringes, inadequate examination of donor blood, tissues or organs) and in an omission (for example, failure to carry out comprehensive medical measures aimed at preventing microorganisms from entering a wound). As with Parts 1, 2, 3 and 4 of Article 317 of the Criminal Code, a mandatory condition for bringing a person to criminal liability under Part 5 of Article 317 of the Criminal Code is the occurrence of socially dangerous consequences and the establishment of a causal relationship between improper performance of professional duties and the consequences that have occurred.

The composition of the crime under consideration is material in structure, since it provides for liability for the actual infection of another person with HIV.

A medical worker whose improper performance of professional duties has resulted in HIV infection shall be regarded as a special subject whose professional and functional duties are connected with HIV-infected persons.

Furthermore, unlike the subjects under Parts 1, 2, 3 and 4, the subjects of this crime also include employees of organisations providing household or other public services. In this regard, it should be noted that, in addition to the main routes of HIV infection (sexual transmission, transmission of infection from mother to child, and transmission through blood), there are other routes of infection: infection with HIV through blood transfusion or its products, as well as through the use of cosmetic instruments that have not been properly processed (when piercing ears, applying tattoos, or performing body piercing). Despite the fact that infection through such routes occurs significantly less frequently, the degree of public danger of such acts and their consequences is no lower. Consequently, employees of organisations involved in blood transfusion, as well as employees of ear-piercing, tattoo and body-piercing salons, shall act as subjects of the criminal offence under consideration if their improper performance of professional duties results in other persons becoming infected with HIV.

The subjective side of the crime under consideration in relation to the act itself, namely improper performance of professional duties due to negligent or dishonest attitude towards those duties, is characterised in the same way as under Part 1 of Article 317 of the Criminal Code, discussed above. Thus, the mental attitude towards the very fact of improper performance of professional duties may be characterised both by negligence resulting from the medical worker's or employee of an organisation providing household or other public services' negligent attitude towards their professional duties, and by indirect intent resulting from a dishonest attitude towards those duties. However, it should be taken into account that, in general, the act, just as under Part 1 of Article 317 of the Criminal Code, must be recognised as having been committed through negligence.

The act provided for in Part 1 of Article 317 of the Criminal Code is classified as a criminal misdemeanour.

The acts provided for in Parts 2, 3 and 5 of Article 317 of the Criminal Code are classified as crimes of medium gravity.

The act provided for in Part 4 of Article 317 of the Criminal Code is classified as a serious crime.

Commentary of 2021 on the Criminal Code of the Republic of Kazakhstan by Isidor Shamilovich Borchashvili, Honoured Figure of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences, member of the Scientific Advisory Councils under the Constitutional Council of the Republic of Kazakhstan and the Supreme Court of the Republic of Kazakhstan, member of the working group on the reform of the law enforcement system under the Security Council of the Republic of Kazakhstan, Honoured Worker of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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