MEDICAL TREATMENT AND PATIENT DECISIONAL POWER: THE ITALIAN STATE OF THE ART

Background In Europe, for the last twenty years, in parallel with the diffusion of the “informed consent” and the self-determination right, there has been an important revision of the concept of the lawfulness of the medical act. Article no. 3 of the Charter of Fundamental Rights of the European Union, adopted in Nice on December 7th, 2000, and the Oviedo Convention of April 4th, 1997, are symptomatic for the growing attention toward the person’s self-determination, and for the impossibility to perform sanitary treatment in absence of the personal, informed, recent and at any time revocable consent of the person concerned. Methods Starting from the approach followed by the Italian Legislator as a consequence of provisions of law that are already in force in Europe, the authors analyze the juridical and case law evolution in Italy during the last ten years. Results Actually, we are in front of two different and opposite thoughts that, in the absence of a clear legislation regarding this matter, induces, on the one side, deep insecurity in the physician’s act, and, on the other side, does not allow the patient to avail himself totally of the self-determination principle, particularly regarding the will and choices on health care. Conclusions Starting from the comparison with the provisions of law that are already in force in other European countries, a specific supranational legislation could be created as guide-line to protect public health in those cases in which the physician meets the patient’s refusal to the medical treatment. Background In Europe, for the last twenty years, in parallel with the diffusion of the “informed consent” and the self-determination right, there has been an important revision of the concept of the lawfulness of the medical act. Article no. 3 of the Charter of Fundamental Rights of the European Union, adopted in Nice on December 7th, 2000, and the Oviedo Convention of April 4th, 1997, are symptomatic for the growing attention toward the person’s self-determination, and for the impossibility to perform sanitary treatment in absence of the personal, informed, recent and at any time revocable consent of the person concerned. Methods Starting from the approach followed by the Italian Legislator as a consequence of provisions of law that are already in force in Europe, the authors analyze the juridical and case law evolution in Italy during the last ten years. Results Actually, we are in front of two different and opposite thoughts that, in the absence of a clear legislation regarding this matter, induces, on the one side, deep insecurity in the physician’s act, and, on the other side, does not allow the patient to avail himself totally of the self-determination principle, particularly regarding the will and choices on health care. Conclusions Starting from the comparison with the provisions of law that are already in force in other European countries, a specific supranational legislation could be created as guide-line to protect public health in those cases in which the physician meets the patient’s refusal to the medical treatment.