On the assignment of the obligation to provide a sugar-lowering drug

6001-22-00-6ap/1393 dated 12.01.2023

Plaintiff: A.G. in the interests of A.S.

Respondent: State Institution "Ministry of Health of the Republic of Kazakhstan", "Department of Public Health of the city of Nur-Sultan", LLP "SK-Pharmacy", GKP on PCV "City polyclinic No. 7" of the Akimat of the city of Nur-Sultan

The subject of the dispute: on the assignment of the obligation to provide a sugar–lowering drug; to return in full the provision of drug "X"; to teach in online format the use of pump therapy and installation; to replace the wired pump M.; to provide and give A.S. a telephone; to provide L. with supplies; to provide needles to syringe pens; to return the provision of needles and not to change them for others; oblige to provide glucagon and test strips without interruption.

Review of the plaintiff's cassation complaint PLOT:

The plaintiff's son, A.S., is registered with an endocrinologist and a pediatrician with a diagnosis of type 1 diabetes mellitus. During an examination for the presence of an autoimmune process in the period from December 11 to December 16, 2017, the National Scientific Center for Motherhood and Childhood made a clinical diagnosis: diabetes mellitus, type unspecified, concomitant retinal angiopathy, weight deficiency of the 1st degree. The disability was registered in May 2018.

The plaintiff disputes the defendants' actions to replace the sugar-lowering agent "L" and demands that they be required not to change the specified drug to generics and biosimilars "T" and "B", indicating that these drugs are contraindicated for her and her son, as they are low-quality analogues (substitutes).

Judicial acts:

1st instance: the claim was denied.

Appeal: the decision remains unchanged.

Cassation: judicial acts are cancelled, the claim is returned.

Conclusions:

In accordance with the second part of Article 102 of the Code of Administrative Procedure, the courts have jurisdiction over disputes arising from public law relations provided for in this Code.

By Order No. 418 of the Minister of Health and Social Development of the Republic of Kazakhstan dated May 29, 2015, a standard contract for the provision of medical care within the guaranteed volume of free medical care (hereinafter referred to as the GOBMP) was approved, concluded between the patient and the medical organization.

In accordance with the subject of the Model Agreement (paragraph 1), a healthcare entity within the framework of the GOBMP: provides medical care to a Patient (pre-medical care, qualified medical care, specialized medical care, highly specialized medical care, medical and social assistance, including specialized and highly specialized medical care with round-the-clock medical supervision, inpatient replacement, rehabilitation and palliative), in accordance with the legislation of the Republic of Kazakhstan; - ensures timely prescribing of drug therapy and prescribing prescriptions to the patient for free medicines and medical devices at the outpatient level according to the List of medicines and medical devices for free provision of the population within the guaranteed volume of free medical care at the outpatient level for certain diseases (conditions) and specialized medical products, approved by the order of the acting Order No. 786 of the Minister of Health of the Republic of Kazakhstan dated November 4, 2011 (hereinafter referred to as Order No. 786).

The Judicial Board considered that the legal relations between the plaintiff and Polyclinic No. 7 are regulated by the norms of the Standard Contract.

The plaintiff's claims relate to the fulfillment of contractual obligations by the defendant and do not contain the subject of the dispute to be considered in administrative proceedings.

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