1. In H. Jonas, The Right to Die, in Hastings Center Report, 1978, n. 4; now in Id, Tecnica, medicina ed etica. Prassi del principio responsabilità, Einuadi, 1997, 185. The author continued: ‘Effectively, every other right which has ever been taken into consideration, claimed, conceded or denied, may be seen as an extension of this primary right, since every specific right regards the activation of some power, the access to some need, or the satisfaction of some aspiration of life.’Google Scholar

2.Ibidem, 187.Google Scholar

3. Cfr., for an understanding of the problem of liability through omission, G. Fiandaca, voce ‘Omissione (Diritto penale)’, nel Digesto IV ed., Disc. pen., VIII, Utet, 1994, 556 s.; G. Grasso, Il reato omissivo improprio: la struttura obiettiva della fattispecie, Giuffrè, 1983, 233; F. Viganò, Stato di necessità e conflitti di doveri. Contributo alla teoria delle cause di giustificazione e delle scusanti, Giuffrè, 2000, 498 ss. With specific reference to the relationship between the doctor and the patient, cfr. E. Palermo Fabris, Diritto alla salute e trattamenti sanitari nel sistema penale. Profili problematici del diritto all’autodeterminazione, Cedam, 2000, 173 ss., and spec. 178 ss., which is also suggested for further bibliographical references.Google Scholar

4. On stressing the importance not only of the limits, but also the very foundation of the right to be cured and the corresponding duty to cure through widening the possibilities of expressing the individual’s personality, in the sense of carrying them out and expanding them, see among others P. Zatti, Infermità di mente e diritti fondamentali della persona, in Pol. del dir., 1986, n. 3, 430 ss.Google Scholar

5. See Jonas’s considerations quoted at the start.Google Scholar

6. For a more detailed analysis, see Palermo Fabris, op. cit., 2000, spec. 1–45, which is also suggested for further bibliographical references. More recently, for some reflections on Articles 2 and 3 of the Italian Constitution and on the concept of dignity inherent in our system of constitutional values, cfr. S. Rodotà, La vita e le regole, Feltrinelli, 2006, 16 ss.Google Scholar

7. The current Professional Ethics Code also seems oriented in this manner as seen, for example, in Articles 13, 16, 35, 36, 38, 39, 51 and 53.Google Scholar

8. Thus Article 35 Professional Ethics Code, latest version, under the heading ‘Acquiring consent’ establishes: ‘The doctor must not undertake diagnostic and/or therapeutic action without acquiring the explicit and informed consent of the patient. […] However, given documented refusal of a person able to take decisions, the doctor must desist from consequent diagnostic and/or curative action, as no medical treatment against the will of the individual is permitted. The doctor must intervene, using his knowledge and conscience, regarding patients unable to take decisions, respecting the dignity of the person and the quality of life, avoiding any therapeutical obstinacy, taking into account the previous will of the patient.’ Italics for parts added or emended with respect to the previous version. In this sense, see the considerations contained in the supreme court judgement Cass., Sez. IV pen., 10.10.2001, imp. Cicarelli, in Cass. pen., 2002, II, 1346 ss.Google Scholar

9. For an analysis in the European setting see the document of E.A.P.C., Task force sull’etica, Eutanasia e suicidio assistito dal medico, tr. it. in Rivista italiana di Cure Palliative, 1 (2004), 42–46. In the Italian context particular merit is deserved by the work of the S.I.A.A.R.T.I., of which, in particular, see two documents edited by the Commission of Bioethics: Raccomandazioni per l’ammissione e la dimissione dalla terapia intensiva e per la limitazione dei trattamenti in terapia intensiva, in Minerva Anestesiol, 2003, vol. 69, 111–118 e Le cure di fine vita e l’Anestesista- Rianimatore: quale approccio al malato morente? in Minerva Anestesiol, 2006, vol. 72, 1–23.Google Scholar

10. It may be useful to note that since 1989 when the National Council and the National Federation decided the transformation of the Study Commission – set up for the previous revision of the Professional Ethics Code of 1978 – into a Permanent Commission, there have been continual adjournments to the Ethics Code. In fact, the National Council already approved a new code in 1995, soon substituted by that of 3rd October 1998, and then by the latest version of 16th December 2006.Google Scholar

11. In the ‘Convention of the Council of Europe for the protection of the rights of man and the dignity of the human being with respect to the application of biology and medicine: Convention on the rights of man an biomedicine,’ signed at Oviedo on 4th April 1997, and ratified in Italy by the law of 28th March 2001, no. 145, a ratification which, however, with a serious delay, has not yet been deposited with the Council of Europe. In particular, Chapter II treats the problem of consent (Articles 5–9) starting from the statement made in Article 5 of the general rule under which medical intervention may only be undertaken after the individual involved has expressed his free and informed consent.Google Scholar

12. This refers to the document signed in Nice on 7th December 2000 and transfused into the Preamble of the future European Constitution, in which the first heading concerns ‘dignity.’Google Scholar

13. It is sufficient to mention the divergence in interpretation based on two exemplary judgements over about ten years. In Corte D’Assise Firenze, 18.10.1990, imp. Massimo, in Dir. fam. e pers., 1991, 978 ss., condemning the doctor for premeditated homicide it was stated that: ‘the doctor can do nothing without the consent of the patient or even against the patient’s will, which, besides, corresponds to a personalistic principle with respect to individual freedom and to a form of the doctor-patient relationship which the defence council of the aggrieved civil party has well identified in the figure of the patient as the possessor of his own fundamental rights and therefore as a man-person man-value and not as man-thing, man-means, subject to being used, also in an objectionable manner, and for ends which are often accompanied by the false cover of scientific progress or utility to the collectivity.’In some more recent sentences, though recognizing the validity of similar claims, there is seen the need of redimensioning the amplitude of the principle of consent. (See, for example, Cass., sez. IV pen., 12 luglio 2001, imp. Barese, in Cass. pen., 2002, 517 ss., con nota di Iadecola e in Riv. it. med. leg., 2002, 865 ss., con nota di Fiori, La Monaca, Albertacci e Cass., Sez. I pen., 11.07-2002, imp. Volterrani, in Cass. pen., 2003, 1945 ss.). In the Volterrani case, the Corte di Cassazione, in fully absolving the doctor, states: ‘the will of the subject involved in a juridical and penal setting in particular has a decisive role only when it is expressed in a negative form.’ As regards explicit dissent, it is seen that in cases where the doctor has the duty to abstain from treatment – even when faced by explicit dissent on the part of the patient – are, anyway, ‘exceptional’. One also reads: ‘Actually, health care practice, and especially surgery, regardless of the hypothesis in which goes beyond the purpose of safeguarding health correctly understood, is always constrained, not to say forced. […] It seems valid, then, to envisage the existence of a general state of necessity and, so to speak, ‘institutionalised’, intrinsic – that is, ontologically – to therapeutic activity.’Google Scholar

14. The extended sense of the expression is used – G. Calabresie P. Bobbit, Scelte tragiche, tr. it., Giuffrè, 1986 – to refer to the hypothesis where the solution of the case requires the sacrifice of one of the values (though fundamental) in question and inherent to the same possessor.Google Scholar

[15] Trib. Roma, ord. 16/12/2006, cit., c.vo. agg.Google Scholar

16. Trib. di Roma, ord. 16.12.2006, states: ‘The jurisprudence of the Corte di Cassazione (Supreme Court) and the Constitutional Court have brought out the magnitude of this principle, in the sense that whatsoever act invading the physical sphere, either of a therapeutic or a non-therapeutic nature, cannot take place without, or against, the consent of the interested person, in that ‘physical inviolability’ constitutes the essential ‘nucleus’ of the personal liberty itself, while, the imposition of a specific health treatment can be justified only if foreseen by a law which prescribes it as a function of the safeguard of the general interests and not a safeguard of individual health and providing, however, it guarantees respect for the ‘dignity’ of the individual (Article 32 Constitution).’Google Scholar

17. See the Public Prosecutor’s request not to proceed, refused by the judge of the European Union, which was reported in E, Vinci’s article in La Repubblica newspaper on 7th March 2007. The Public Prosecutor states: ‘In the case in point, it can be claimed that there is the right of the patient not to undergo undesired medical treatment,’ not being able to sustain that ‘such a right safeguarded by the Constitution would find a limit in the superior need of safeguarding human life which, under Italian law, constitutes an inviolable right.’Google Scholar

18. Palermo Fabris, Diritto alla salute, cit., 180 ss. Also see ivi for further bibliographical references.Google Scholar

19. In the episode under consideration it is worth mentioning a notable difference between the conduct of the health worker who limits himself to not administering therapy refused by the patient and that of the health worker who acts to interrupt therapy already undertaken. The problem has been faced in part by the doctrine itself with reference to disconnecting the artificial breathing apparatus and – though with the intention of being a meditated intervention on the theme on the part of the penal legislation – resolved in the sense that ‘detaching the artificial breathing apparatus – irrespective of a naturalistic perception of the actions of the doctor – gives rise to an omission of therapy imposed by the refusal of the patient, while the protraction of life support would give rise to an illegitimate forced treatment.’ As espressly in S. Seminara, Riflessioni in tema di suicidio e di eutanasia, in Riv. it. dir e proc. pen., 1995, p. 695; also see F. Stella, Il problema giuridico dell’eutanasia: l’interruzione e l’abbandono delle cure mediche, in Riv. it. med. leg., 1984, 1012; G. U. Nannini, Il consenso al trattamento medico: presupposti teorici e applicazioni giurisprudenziali in Francia Germania e Italia, Giuffrè, 1989, 504 ss.Google Scholar

20. The preliminary results of a recent study carried out by Giviti on 3648 patients who died in 84 Italian intensive care units, which admitted 21 428 patients in 2005 are particularly interesting. The initial quantitative data indicate that when admitted to intensive care more than 80% of the patients taken into consideration were not considered able to express valid consent to the treatment plan (among the reasons identified there are: ‘altered consciousness, conditions of extreme stress, anesthesis’). In only a very small number of cases (8%) was there available ‘a formal previous testimony of the patient’s will’. As in the Press Statement of 19/10/2006 to be found in the site http://www.giviti.marionegri.it/FineVita.aspGoogle Scholar

21. To have an idea of the complexity of the problem, see for example the story regarding Eluana Englaro. The issue, which has now been protracted for several years, concerns the request of the patient’s father, nominated as guardian, to suspend treatment on his grown daughter who has been in a persistent vegetative state since 1992. The case has seen a succession of numerous judicial acts (the latest decision is, currently, that of the Milan Court of Appeals, decree 16.12.2006, in Guida al dir., 2007, n. 1, 39 ss.). The work of a ministerial commission instituted by Ministerial Decree on 20/10/2000 by the then Minister of Health Veronsesi (the report of the workgroup on artificial nutrition nand hydration treatment of persons in a state of irreversible loss of consciousness may be found at www.globius.org/documenti/nutrizione.htm), in a deliberated opinion of the National Bioethics Committee of 30th September 2003, L’alimentazione e l’idratazione di pazienti in stato vegetativo persistente. Despite 15 months now having passed a solution still seems a long way off. The difficulties of deciding in these cases emerge with the very opinion of the CNB quoted. As well as its content, its method is also striking – unusual for the authoritative organ – according to which a document was decided upon without its having received a consistent majority of votes. What is defined as ‘An integrative note’ contains the signatures of some 13 components against this final text.Google Scholar

22. Of particular significance there are Articles 1, 2 and 3 contained in part I, Charter of the European Union, 2000, quoted regarding, not by chance, ‘human dignity.’ Only after the proclamation of the inviolability of human dignity (Article 1) is the right to life stated (Article 2) and the right to physical and psychological integrity, in the setting of which the duty to respect the ‘free and informed consent’ of the patient is specified (Article 3).Google Scholar

23. Cfr. Articles 16 and 39, Professional Ethics Code, latest version.Google Scholar

24. Cfr. on this question G. Iadecola, Potestà di curare e consenso del paziente, Cedam, 1998, 99; R. Riz, Il consenso dell’avente diritto, Cedam, 1979, 348 ss.Google Scholar

25. Così Palermo Fabris, op. cit., 222 s.Google Scholar

26. For a deeper discussion see ibidem, 201 ss. e 222 ss.Google Scholar

27. See again the Welby case in the civil courts and the presentation of the doctor treating him, quoted above.Google Scholar

28. As in F. Giunta, Il consenso informato all’atto medico tra principi costituzionali e implicazioni penalistiche, in Riv. it. dir. e proc. pen., 2001, 380 ss.; Palermo Fabris, op. cit., 201 ss.; Viganò, Stato di necessità e conflitti di doveri, cit., 10 ss. But see also, P. Veneziani, I delitti contro la vita e l’incolumità individuale, nel Trattato di diritto penale. Parte speciale, diretto da G. Marinucci e E. Dolcini, I delitti colposi, t. II, Cedam, 2003, 319, which, though, places itself in an intermediate position regarding the penal relevance of ‘informed consent.’ Also in the case that the justification of a state of need is operative, the ability of the doctor to choose between the goods in question concerning the same possession would cease when the owner himself had indicated which goods should prevail. Besides the cited authors, see also Albeggiani, Profili problematici del consenso dell’avente diritto, Milano, 1995, 78 ss.Google Scholar

29. Experimentation then becomes concretely expressed in Article 32 of the Constitution. Cfr. for an interpretation in this sense, G. Tognoni, La sperimentazione clinica: le condizioni minime di eticità, in Bioetica, 1996, 13 ss. and more recently recente G. Marsico, La sperimentazione umana: diritti violati/diritti condivisi, Franco Angeli, 2007, spec. 77 ss., where it is stated: ‘Participation in research/experimentation is therefore a right in as much as it is the expression of health assistance, which is transformed into a health project, where there are not adequate responses to the needs and the right to health risks being unfulfilled.’ (p. 79).Google Scholar

30. As the Helsinki Declaration itself is codified the international scientific community has decided the question of whether, despite the lack of realtime informed consent of the patient to proceed with experimentation on the same in a positive way. On the problem of carrying out research on vulnerable subjects, see from ult. Marsico, op. cit., spec. 157 ss, which also suggested for further bibliographical references.Google Scholar

31. Not only the principles found right from the Introduction to the Helsinki Declaration – cfr. points 4, 5, 6, 8 – but also directive 2001/20/CE on the application of good clinical practice in carrying out clinical experimentation of drugs for clinical use, instituted in our law by the legislative directive 24th June 2003, no. 211, must be interpreted in this sense.Google Scholar

32. Article 39 Professional Ethics Code, latest version, stresses the connection between the appropriateness of the treatment and ‘the safeguarding, as far as it is possible, of the quality of life and the dignity of the individual person’; also containing the explicit invitation – in the case of a patient with a compromised state of consciousness – to avoid ‘every form of therapeutic obstinacy.’Google Scholar

33. Jonas, op. cit., 205, italics added.Google Scholar