POTENTIAL DAMAGE SUBJECT TO PROOF IN PROCEEDINGS REGARDING THE APPLICATION OF FORCED MEASURES OF A MEDICAL NATURE

Abstract

It was established that one of the debatable issues of the proceedings regarding the application of coercive measures of a medical nature concerns the nature of the potential harm that the person, in relation to whom the issue of application of the specified measures is being decided, is capable of causing. The impossibility of applying coercive measures of a medical nature to a person with a mental disorder/mental illness, who is capable of causing significant (in particular, irreparable) harm, but with an act that is not prohibited by the Criminal Code of Ukraine, is substantiated. It has been proven that in the presence of a threat of causing it in the future, even significant damage, but by action or inaction that is not socially dangerous (in particular, such that does not entail the application of any type of legal responsibility), the authorized persons have the right (and some are even obliged) to raise the issue of compulsory provision of psychiatric care, however, in the manner of civil proceedings. Attention is drawn to the carelessness of the legislative approach to the formulation of the nature of the act, which is capable of harming the patient, in relation to which the issue of compulsory provision of psychiatric care is being decided. It is indicated that the relevant damage can be caused not only by action, but also by inaction. In view of this, a number of changes and additions to the current legislation are proposed (namely, to the title of Article 505 and Clause 5 of Part 1 of Article 505 of the Criminal Procedure Code of Ukraine, to Part 1 of Article 94 of the Criminal Code of Ukraine and Article 14 of the Law of Ukraine “On psychiatric care”), as well as to p.b. part 2 of article 3.6.3 of the draft of the new Criminal Code of Ukraine.