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Legal aspects of end-of-life decisions in Italy: the penal relevance of the limitation of treatment in the terminally ill and the problem of causality by omission

The legal puzzle of end-of-life care in Italy: Is therapeutic limitation in the terminally ill patients a crime of omission liable to prosecution?

Published online by Cambridge University Press:  01 February 2008

E. P. Fabris  and
M. Piccinni
E. P. Fabris
Affiliation:
Università di Padova, Internazionale, Comunitario, Dipartimento di Diritto Pubblico, Padova, Italy
M. Piccinni*
Affiliation:
Università di Padova, Dottore di ricerca, Dipartimento di Diritto Comparato, Padova, Italy
*
Correspondence to: Mariassunta Piccinni, Dipartimento di Diritto Comparato, Via VIII Febbraio, 2, 35122 Padova, Italy. E-mail: [email protected]; Tel: +39 498278919; Fax: +39 498273479
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Summary

The interruption of life support poses different problems for he who interrogates himself regarding the possible juridical role of omissible behaviour or activities by part of the physician when dealing with end-of-life interventions within the boundary of life and death. The present contribution proposes to trace the coordinates necessary to answer the main query regarding the obligations which may be incumbent on the physician. For this reason, the necessity to interpret the legal sanctions in a technical key is highlighted. This is performed in sight of a progressive and inevitable adaptation to problems which are the result of a social evolution, and to the conception of values which consitute an object responsibility, as renewed by the constitution. The laws that discipline crimes against life and individual integrity must be interpreted while keeping in mind that the objective of maintaining the patient in life must be integrated with the control of suffering and the guarantee of a dignified death. When identifying the principles which have to inspire the decisions during ‘borderline or boundary situations’, it is highlighted the way the physician has to resort to a just equilibrium between benefit, which can be reasonably expected, and sacrifice, which should be imposed, taking into consideration the criteria of good clinical practice, among which attention to the patient’s will must be taken into consideration.

Keywords

TERMINALLY ILLCESSATION OF TREATMENTETHICSPHYSICIAN–PATIENT RELATIONSLEGAL OBLIGATIONS
Type
Original Article
Information
European Journal of Anaesthesiology , Volume 25 , Issue S42 , February 2008 , pp. 58 - 65
Copyright
Copyright © European Society of Anaesthesiology 2008

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References

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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
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