Medical Treatment and Patient Decisional Power: the Italian State of the Art

Therapy dissent and refusal are the situations most debated in the medical profession, that lead to various interpretations with regards to life and health, and even more in case of death risk. In the last decades, the medical treatment consent matter has become such an interesting and central issue that it has considerably modified the doctor-patient relationship. In particular, thanks to a fecund discussion on doctrine and case law, the informed consent became an autonomy act through which the patient exercises his/her personal health right. There are two international provisions that deserve to be mentioned for the matter: article no. 3 of the Charter of Fundamental Rights of the European Union, adopted in Nice on December 7, 2000, and the Oviedo Convention of April 4, 1997, which Italy passed under article no. 145, March 28, 2001. Both laws are symptomatic for the growing attention toward the person's self-determination, and for the impossibility to perform treatment in absence of personal, informed, recent and at any time revocable consent of the person concerned. Actually, these different and opposite ways of thinking correspond to a variable attitude of the case law that, in absence of a clear legislation regarding this matter, induces a deep insecurity in the physician's act on the one hand, and, does not allow the patient to totally avail him/herself of the self-determination principle on the other hand, particularly regarding the will and choices on health care.