The Russian government has proposed to exempt medical professionals from criminal liability for the unintentional loss of narcotic and psychotropic drugs. President Vladimir Putin ordered the government to make these changes in January last year, but refused to decriminalize the article itself. The government submitted a draft law to the State Duma on March 1.
It proposes amendments to Article 228.2 of the Criminal Code (“Violation of the rules of trade in narcotic drugs or psychotropic substances”). Now, for a violation of these rules resulting in the loss of narcotic and psychotropic substances, the offender faces a fine equal to his annual income or compulsory work for up to 360 hours. If the loss was intentionally committed for personal gain or to harm people’s health, the guilty party could face up to three years in prison.
The government proposed to add a note to the article stating that it does not apply to doctors who inadvertently violate the rules for handling narcotics at work. To exempt doctors from criminal liability under Article 228.2, Putin in June 2019 during the direct line with the head of state asked Nyuta Federmesser, the founder of the charitable foundation for hospices “Vera”, for the number of offers to remain.
“This is such an amazing article, which provides for liability under the criminal code regardless of whether any harmful consequences occur, whether they are dangerous or not. In other words, if the drug was not illegally distributed, if there was no harm to health, and if there were procedural errors – it is just a formality: something was not recorded in time, not with the right ink, not in the right way, the vial rolled under the safe and could not be retrieved until the next day,” Federmeisser said at the time.
She explained that because of the risk of punishment under this law, many health care professionals are afraid to handle narcotics, and as a result, some patients who need strong painkillers do not receive them. Federmesser noted that there are other articles in the Criminal Code – such as Article 228.1 (drug trafficking) and Article 229 (theft of narcotics) – that apply to health care workers involved in the illegal drug trade, and asked Putin to fully decriminalize Article 228.2 for health care workers.
Putin did not support the idea of decriminalizing this article for health care workers, but he agreed that there is a problem that doctors are afraid to prescribe narcotics to patients due to the existence of this article in medicine. In January last year, Putin ordered the government to amend legislation to exempt medical professionals from criminal liability for the unintentional loss of narcotics.
From 2016 to June 2019, 79 criminal cases were opened in Russia under Article 228.2 of the Criminal Code, which deals with violations of the rules of circulation of narcotic or psychotropic substances, according to the explanatory note to the bill. Of these, 29 were filed against medical professionals, five were dropped during the investigation phase, and 15 were referred to court, according to the document.
“There aren’t many cases, they number in the dozens, but the fear of criminal liability itself is a much more serious obstacle for healthcare workers,” Anastasia Zhdanova, a lawyer at the Moscow Multidisciplinary Palliative Care Center of the city’s Health Ministry, told the BBC. “In the case of medical professionals, the risk of criminal liability leads to other negative consequences: in the context of staff shortages, medical professionals refuse to work with narcotics and choose other types of work unrelated to narcotics,” Zhdanova says.
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In October 2019, she also drew Putin’s attention to this problem during the president’s meeting with public representatives in Kaliningrad. “How does this article work for doctors? If you break, spill, lose in an unknown place, pour a partially used vial into the sewer – you are to blame, and the person will be held criminally responsible,” she said to the president.
“I can answer briefly: I agree. Of course, unfortunately, we are aware of cases of a criminal nature when medical professionals use their position to engage in the illegal distribution of narcotics or substances containing narcotics. We certainly need to think about how to protect society from this type of crime. However, excessive requirements lead to negative consequences, burden medical workers and do not allow them to work properly,” Putin agreed with her.
During the conversation with BBC, Zhdanova admitted that criminal liability under this article, perhaps, should be lifted and “for some other subjects, including scientists”. Whether the amendments proposed by the government will facilitate the work of medical professionals, if they are adopted by the State Duma, will depend on the enforcement practice that will be developed, according to Zhdanova.
“In this bill, there is a reference to a regulatory act that should be issued by the Ministry of Health in consultation with the Ministry of the Interior to establish the procedure for recording the loss of drugs in a medical organization. The content of this document also depends on how this will be implemented,” she explained.