The court confirmed that the conclusion of the MAC may be grounds for dismissal from service due to care

Military personnel who are discharged during martial law due to family circumstances related to the need for constant care for a spouse with a Group I or II disability must confirm this reason with a conclusion from a medical advisory commission (MAC) and a certificate in the form No. 080-4/о.

This conclusion was reached in case No. 480/9446/24 by the Sumy District administrative court, which was upheld by the Second administrative court of appeal on September 4.

A military serviceman submitted a report on his dismissal from service due to the need to provide constant care for his wife with a Group I disability. He attached copies of personal documents, a marriage certificate, and medical reports confirming his wife's disability and need for constant care to the report.

However, the military unit refused to accept the report, considering the documents provided to be inadequate: the medical and social expert commission's report only mentioned the need for outside care, and the medical advisory commission's conclusion, in the opinion of the command, could not be applied in this case. Technical inaccuracies in the medical documents and alleged shortcomings in the content of the report itself were also pointed out.

The serviceman appealed the refusal in court. His legal position was formulated and he was represented by the chairman of the Center for methodological assistance and coordination of the volunteer movement of advocates for the legal protection of servicemen at the Ukrainian National Bar Association Yaroslav Romanenko.

The court analyzed the provisions of the Law «On military duty and military service» and concluded that the basis for dismissal is precisely the need for constant care for a spouse with a disability of group I or II. The law does not specify a specific document confirming such a need, so both the MSEC certificate and the conclusions of the MAC should be taken into account.

At the same time, the MSEC only determines the need for «external care», while the concept of «constant care» covers the continuity and complete inability of a person to self-serve. This difference has already been clarified by the Supreme Court in case No. 120/1909/23 (decision of 21.02.2024).

With regard to persons who, due to their state of health, are unable to care for themselves and require constant outside care, the court believes that such powers fall within the remit of the MAC. These healthcare institutions have the right, in particular, to issue conclusions:

• conclusions or recommendations regarding the care of a child until he or she reaches the age of six, and in the case of a child with type I diabetes mellitus (insulin-dependent), until the child reaches the age of 16;
• a conclusion on the presence of bodily functions that prevent terminally ill persons from moving and caring for themselves independently and require social care services on a non-professional basis (form No. 080-4/о), with recommendations on obtaining the relevant services;
• a conclusion on the presence of cognitive impairments in elderly citizens, as a result of which they require social care services on a non-professional basis (form No. 080-2/o), with recommendations for obtaining the relevant services;
• a conclusion on the need for constant third-party care for a person with a disability of group I or II due to a mental disorder, in accordance with the form approved by order of the Ministry of Health of Ukraine No. 667 of July 31, 2013.

Therefore, a conclusion on the presence of bodily functions that prevent terminally ill persons from moving and caring for themselves independently and require care (form No. 080-4/o), with recommendations for receiving appropriate services, may be evidence that the person is unable to care for themselves due to their health condition and requires constant outside care.

On these grounds, the refusal to the serviceman was found to be unlawful, and the military unit was obliged to make a decision on his dismissal on the grounds provided for by law.

The ruling of the Second administrative court of appeal in this case can be found at this link.