HUMAN BIOCHEMISTRY - L. V. Kapilevich - 2016

PART 2. FUNDAMENTALS OF SPORTS PHARMACOLOGY

LEGAL ASPECTS OF DOPING USE

Order No. 337 of the Ministry of Health of the Russian Federation dated August 20, 2001, "On Measures for the Further Development and Improvement of Sports Medicine and Therapeutic Physical Culture," mandates that in the medical support of elite sports, in cooperation with all interested organizations, measures must be implemented to improve and enhance the efficiency of doping control. All prescribed medications, physiotherapeutic Procedures, and therapeutic techniques used must be duly recorded in the medical control card of the athlete, along with a justification for their prescription.

The approved forms for the medical control card of an athlete are forms 061U and 062U (Order No. 1030 of the Ministry of Health of the USSR dated October 4, 1980, "On the Approval of Primary Documentation Forms for Healthcare Institutions"). Pharmacological therapy and pharmacological correction programs may be prescribed exclusively by a physician licensed to practice medicine and holding the appropriate certification. Only pharmacological substances approved by the Pharmacological Committee of Russia and listed in the Register of Medicinal Products may be prescribed.

These provisions fully apply to prescription drugs dispensed in pharmacies upon presentation of prescription forms, the proper completion of which is regulated by Order No. 110 of the Ministry of Health of the Russian Federation dated February 12, 2007, "On the Procedure for Prescribing and Dispensing Medicinal Products, Medical Devices, and Specialized Medical Nutrition Products." Accurate information regarding the medicinal and other substances used must be possessed not only by the athlete but obligatorily by all members of multidisciplinary scientific groups, physicians, coaches, massage therapists, officials, and sponsors involved in preparing the athlete for competitions.

Article 61 of the Basics of Legislation of the Civil Code of the Russian Federation mandates the preservation of medical confidentiality. Therefore, a physician prescribing specific medications to an athlete is required to agree with them on the circle of individuals who may have access to this information. Before the administration of medications, therapeutic techniques, or physiotherapeutic procedures, the athlete must review the informed consent form (Article 32 of the Basics of Legislation of the Russian Federation on the Protection of Health of Citizens), which is entered into the athlete's medical control card, and sign it. In accordance with Article 31 of the Basics of Legislation of the Russian Federation on the Protection of Health of Citizens, the athlete must be informed about the therapeutic effect of the applied drug, technique, or procedure, as well as their potential side effects.

Let us attempt to delineate potential liability in the event of a positive doping test in an athlete among the athlete, their attending (sports) physician, and the healthcare institution (HCI). Although Order No. 337 of the Ministry of Health of the Russian Federation dated August 20, 2001, "On Measures for the Further Development and Improvement of Sports Medicine and Therapeutic Physical Culture," indicates that "Persons convicted of facilitating The Use of prohibited pharmacological agents may be held liable for illegal medical practice (Article 235 of the Criminal Code of the Russian Federation)," in reality, holding a person liable under this article requires proving simultaneously the individual's intent regarding both the administration of doping and their regular practice without a license for this type of medical activity, which is practically impossible. Civil liability for improper Treatment of an athlete-patient appears much more probable. Suppose the athlete was unaware that their treatment involved substances containing components recognized as doping. In this case, the question arises regarding the potential negligence of the HCI and the attending physician. According to established rules, fault consists of improper treatment—i.e., the failure of the prescribed treatment to meet modern standards regarding the required level and scope for a given pathology, the patient's individual characteristics, and the capabilities of the HCI. Therefore, based on THE PRINCIPLE OF the defendant's presumed guilt, the proof of the HCI's innocence will consist of the HCI providing the following data: the compliance of the athlete's treatment with medically accepted standards and the use of medications specified in those standards; Conclusions from physicians and specialists regarding justified adjustments to the aforementioned treatment (deviations from standards) due to the athlete's individual characteristics, comorbid conditions, etc.; the compliance of the provided treatment (at least to The Scope of specialist consultations) and therapeutic manipulations stipulated by the HCI's license; and the physician's competence in the field of sports medicine, specifically knowledge of drugs containing doping agents.

In our case, the problem lies in the fact that the athlete was treated with a medication containing a doping agent; ultimately, the question posed in court will be framed as follows: "Could the attending physician, exercising due care and foresight, have foreseen that they were prescribing a medicinal product containing doping to the patient?" Thus, if a patient receives treatment at a "standard" HCI that lacks sports medicine physicians, the court is likely to rule that the HCI is not at fault. However, if the attending physician is a sports medicine specialist who has undergone specialized training covering knowledge of doping-containing substances, the HCI will be found at fault and required to compensate the athlete for material (loss of bonuses) and moral damages.

After compensating the patient, the HCI may file a recourse claim against the attending sports physician if their specific fault in prescribing doping is established, and recover the paid monetary sum from them. Conversely, if the athlete gave informed, voluntary consent to the treatment while being aware that the medication contained doping, the HCI bears no fault, provided the HCI proves that the notification was proper and contained information regarding the doping agents, which can be confirmed by witness testimony or medical record entries.

Self-Control Questions

1. Who has the right to prescribe pharmacological therapy to an athlete?

2. What pharmacological agents may be prescribed to an athlete?

3. Who must possess information regarding the medicinal products used by an athlete?

4. Under what circumstances will a healthcare institution be found at fault when prescribing a doping-containing substance to an athlete?