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THE SUSPENSION OF MEDICAL TREATMENT IN ITALY.

                                  SOME RECENT CASES



                                1. The legislative framework

                                        1.1. Foreword



In order to understand what has happened recently in Italy, in reference to cases in which

patients have expressed the will to discontinue therapy critical to their survival, one must

begin with a brief analysis of Italian legislation. Italian laws, like those of other countries,

are the result of a long legislative process that, over time, has led to the stratification and

overlapping of sometimes conflicting rules.

It is precisely because of these contrasts in norms that some known cases, of which we

will be looking at, have been judged differently (and sometimes contradictorily) by the

various judges who have taken them into consideration.

Furthermore, because of these legislative conflicts, it is still not clear what the patients'

rights are, when it comes to the possibility of refusing lifesaving care.

Therefore, I will be delving into this legal labyrinth, looking at the different laws, starting

from older ones right up to those more recent, and how they affect this issue.


                                    1.2. The Penal Code


Some rules to which judges have referred, in passing judgment in these cases, are from

the Italian penal code, which dates back to 1930. Regarding the issues that concern us,

this code, although having undergone many changes over the years, has maintained an
underlying philosophy that reflects the value of the unavailability of life, a value that

prevails over other principles, such as those relating to individual autonomy. In fact there

are numerous articles in the penal code that could come into play in evaluating medical

decisions at the end of one’s life. Article 40, for example, states that “refraining from

preventing an event, when it is one’s duty to do so, is equivalent to causing it”.

According to the aforementioned article, and the fact that it is the physician’s

professional duty to save his patients’ lives, when a doctor lets a patient die at his request,

it is as if he were killing that patient. According to Article 40, the doctor should therefore

be charged with the crime of homicide. Article 54 further establishes that "no one shall be

punished for acts committed under the constraint of necessity to preserve himself or

others from the risk of serious personal harm”: this article is often cited in the justifying

non-compliance with the will of patients in danger of losing their lives, who are subject to

emergency therapy against their will (e.g. a Jehovah’s Witness who is subjected to a

blood transfusion). Then there are articles 575-576-577-579-580 that refer to the crime of

homicide in its various shapes, forms and aggravating circumstances. Here, I’m inclined

to cite Article 579 in particular, which condemns "consensual homicide" (under which

euthanasia falls) and Article 580, which punishes "incitement or helping in suicide "(in

this case including assisted suicide). Finally, article 593 condemns "the omission to

assist”, a crime which can implicate the assisting physician who does not intervene, in the

death of a patient who, for example, has had his or her automatic respirator switched off,

or nasogastric feeding tube removed.
1.3. The Civil Code



The Civil Code enacted in 1942, is only slightly more recent and is also affected by the

same type of approach. One needs to look no further than Art. 5, which states that "acts

of disposition of one’s own body are prohibited when causing permanent physical

damage, or are otherwise contrary to law, public order or morality." As a consequence of

this article we are also prohibited to let ourselves die, because death is obviously the

biggest among permanent physical damage.



                                   1.4. The Constitution



The most important turning point in Italian legislation took place in 1948 when, after the

fall of the fascist regime, the Constitution of the Italian Republic was enacted.

In fact, in the new Constitution the principle of absolute unavailability of life is softened,

becoming a principle of one’s right to health protection and promotion of health as a

collective interest. Indeed the first paragraph of Article 32 states that "The Republic

protects health as a basic individual right and public interest, and guarantees free care to

those in need”. But the most significant news was that the right to refuse treatment was

ratified in the Constitution in the second paragraph of Article 32, which states, "no one

can be obliged to undergo medical treatment except under the provision of law"

clarifying that "the law cannot, under no circumstances, violate the limits of respect for

human dignity”. This turning point is extremely important in that it moves from one

regulatory framework, essentially imbued with the principle of the unavailability of life,
to a new and for the most part voluntary approach, therefore enabling the inclusion of the

principle of individual autonomy.

The reason that the Constituent Assembly came to these conclusions is due to the fact

that, among other things, the period in which the Assembly was active in drafting the

Constitution (1946-1948), massive media attention was focused on Nuremberg, where

Nazi criminals and certain doctors who had worked in the death camps were being tried.

In fact, it was during these trials that the "Nuremberg Code” was established which, first

and foremost, recognizes the patient's right to refuse treatment.

The second paragraph of Article 32 is often referred to in relation to Article 13 of the

Constitution, which does not concern specific medical treatment, but more generally, the

protection of people’s liberty: "Personal freedom is inviolable. Any form of detention,

inspection or personal search, or any other restriction of personal freedom is prohibited,

except for reasons given in a court of law and only in cases under the provision of law.

(...) ". This article, however, may be invoked even in cases where a person is forcibly

and against his or her will subjected to medical treatment, because, in order to do this, it

is necessary to deprive the said person of his or her liberty, by keeping him or her in a

medical facility, forcibly administering treatment to him or her, etc.



                                      1.5. The Oviedo Convention



In 1997, along with the governments of the Council of Europe member states, the Italian

government signed the so-called "Oviedo Convention" (Convention on Human Rights

and Biomedicine) further confirming the patients’ right to refuse treatment1.
1
    Art. 5: "An intervention in the health field can be carried out after the person concerned has given free
This Convention was subsequently ratified by Parliament in 2001 with Law No. 145.

However, being an international treaty, Government subscription and ratification by

Parliament was not sufficient for it to come into force, so a third step needed to be taken

by the Government: the submission of the ratification instrument to the Council of

Europe (the Convention body). Therefore, at present, after 12 years of underwriting and 8

years after parliamentary ratification, the Oviedo Convention has not yet come into force

in Italy.


                                   1.6. Secondary sources of law


In addition to the previously mentioned rules, there are also so-called "secondary sources

of law”: rules that have no legal value as such, but which may nevertheless be taken into

account by judges in sentencing, even if at a different level than the others. In our case, of

these "secondary sources", the Code of Medical Deontology, which in Italy has some

interesting features, when compared with the current legislative framework, may be

included. There has indeed been much reflection on the issues pertaining to the end of

one’s life by the Italian medical profession and this reflection has resulted in the

development of a new Code of Medical Deontology, approved on December 15 2006,

just a few days before the death of Piergiorgio Welby (one of the cases discussed below).

A sort of pre-emption of still-in-progress parliamentary work was made in the approval

of this new code: while the political class was divided (and is still divided) on whether to

approve a law on advance directives, a new Article (n. 38) was inserted into the new


and informed consent. This person shall beforehand, be provided with suitable information on the purpose
and nature of the intervention as well as its consequences and risks. The person concerned may at any time
freely withdraw his or her consent".
Code of Medical Deontology entitled "The rights of citizens and advance directives." The

last paragraph of the Article obliges the physician to “consider what was previously

stated by the patient in a clear and documented manner, should the patient be unable to

express his or her own will”. Also in the 1998 version, art. 34 of the Code of Medical

Deontology, states that "the physician should not undertake diagnosis and / or treatment

without acquiring the patient’s informed consent".



                                      2. Case studies



                                  2.1.1. The Welby case



In 1963, at the age of 18, Piergiorgio Welby was diagnosed with " Facio-Scapulo-

Humeral Dystrophy”, a hereditary disease described in medical literature as the

progressive degeneration of the skeletal muscles. 1980 marked the beginning of Welby’s

most difficult years: his condition worsened and he lost his ability to walk. Thoroughly

conscious of the possible evolution of his illness, Welby made a pact with his wife Mina:

if he were to suffer a respiratory crisis, Mina would not call the emergency services.

Welby also refused to undergo a tracheotomy, which would have rendered him a slave to

a ventilator.

His wife, however, when faced with the reality of the situation was unable to find the

strength to fulfill the pact. On 14 July 1997, due to severe respiratory failure, Welby lost

consciousness, fell into a coma, and against his will, underwent a tracheotomy and was

connected to a ventilator. In September 2006, nine years after his tracheotomy, Welby
wrote a heartfelt letter to the President of the Republic, describing his situation in detail

and requesting him to put an end to his suffering. Shortly after writing the letter to the

President of the Republic, Welby asked his physician, Dr Giuseppe Casale, to cease

artificial ventilation and to disconnect the automatic respirator. The doctor, however,

refused and gave the reasons for his refusal in a written text dated 25 November 2006.

At this point Welby involved the judiciary by means of an "urgent appeal to obtain the

disconnection of the artificial respirator under terminal sedation"(28 November 2006). In

his appeal Welby's lawyers refrain from using the term "euthanasia", which Welby used

in his letter to the President of the Republic, and in so doing, the request assumes the

characteristics of a simple rejection of care, based on Article 32 of the Italian

Constitution. In an ordinance filed on 16.12.2006, judge Angela Salvio declared Welby’s

appeal to be completely unacceptable because, while recognizing the existence of

personal rights as guaranteed in Article 32 of the Constitution, the requesting of the

interruption of medical therapy, was not legally protected. Judge Salvio observed that the

positive legislation is oriented in the opposite direction (in reference to Article 5 the Civil

Code, which prohibits acts of disposition of one’s own body which result in permanent

damage and Articles 575, 576, 577 n.3, 579, 580 of the Penal Code, which punishes

homicide and assisted suicide in particular) adding that the Italian legal system lacked the

specific legislation to regulate end-of-life decisions in a clinical setting.

Since it was impossible to detach the respirator with the consent of the court, Welby

decided to proceed anyway, having found an anesthetist willing to meet its needs. The

anesthetist was dr. Mario Riccio, who went to Welby's house on 18 December 2006 to

check the evolution of the disease and to collect the patient's will who, once again,
confirmed his wish to be sedated and detached from the respirator. Two days later, in the

presence of Welby’s family members and people who had supported him in his battle for

recognition of his final decision, dr. Riccio proceeded to sedate the patient and, soon

after, detached the automatic respirator. According to the medical-legal report, Welby

died within half an hour of cardiocirculatory arrest, due to severe respiratory failure,

caused by Welby’s illness: progressive scapolohumeral dystrophy.

After Welby's death, interest in his story has continued to grow, even following

investigations conducted into dr. Riccio. An initial examination of dr. Riccio’s conduct

was carried out, from a deontological point of view, by the College of Physicians of

Cremona, to which dr. Riccio belongs. Two elements were taken into consideration:

firstly, the "clear, definite and unequivocal" desire of a patient, "perfectly capable of

consent and expression "," fully aware of the consequences of the onset of death " and

secondly the fact that the anesthetist "had not used drugs or other substances in

determining death" and that the resulting terminal sedation " pharmaceutical dosage,

method and administration time were in line with standard protocols". For these reasons,

the College of Physicians of Cremona’s Disciplinary Commission closed this case in a

decision dated 1 February 2007.

A second examination was conducted, from a penal perspective, by the Office of the

State Prosecutor in Rome, resulting in a very similar an outcome to that of the College of

Physicians of Cremona, that is, the case being dismissed (5 March 2007).

This conclusion was based on the outcome of medico-legal advice, which excludes

sedation as a significant cause of death, concluding that the only cause of death was

respiratory failure due to the disease. The request for the dismissal of the case, by
substitute prosecutor Gustavo de Marinis, was rejected on April 4 by the preliminary

investigations judge in Rome, Renato La Viola, calling on the Office of the State

Prosecutor in Rome to set up a compulsory head of imputation, soliciting the remanding

of the case by placing the doctor on the criminal offense register under the hypothesis of

"consensual homicide" (a crime under Article 579 of the Penal Code, which can result in

up to 15 years of imprisonment).

The proceedings finally came to an end on July 23 2007, with the entering of a nonsuit

regarding the doctor. Zaira Secchi, the judge presiding over the preliminary hearing in

Rome, in this case, referred to Article 32 of the Italian Constitution which clearly states

that "no one can be bound to a particular medical treatment if not under the provision of

law" as well as Article 13 which states that "personal liberty is inviolable". The entering

of a nonsuit shows that the right to refuse treatment is also confirmed by Article 5 of the

Oviedo Convention, that, "although not yet in force in our system, it is still valid as

criteria to be interpreted by the judge, foregoing principles in accordance in our

Constitution". The sentence notes that the assertion of one’s right to refuse treatment has

some records in the jurisprudence of the Constitutional Court (Const. Co. n. 45/65, n.

161/85, n. 471/90, n. 238/96), affirming that the right to refuse care is an "inviolable

personal right, immediately prescriptive and effective in our legal system, included

amongst the most highly protected individual values”. The court recognized that dr.

Riccio’s behavior was in accordance with that punishable for consensual homicide

(Article 579 of the Penal Code), but also notes that in this particular case, dr. Riccio’s

conduct was in the context of a therapeutic relationship and was therefore under the guise

of the patient’s constitutional right to refuse unwanted medical treatment. According to
the sentence, dr. Riccio’s conduct is therefore not censurable, because it is considered as

a fulfillment of duty and, as such, he is not liable, as established in article 51 of the Penal

Code.



                            2.1.2. Comments on the Welby case



The dialectic between Penal Code laws and Article 32 of the Constitution clearly emerges

from the Piergiorgio Welby and dr. Riccio case. In fact three different statements were

made by different judges, at different levels, clearly demonstrating the difficulties of this

issue. The three statements cover the spectrum of possible choices: 1) A first magistrate,

judge Angela Salvio, argued that the judiciary was unable to decide due to the

incoherence of the laws, and therefore relied on the intervention of parliament in order to

obtain clarification, thus allowing magistrates to make decisions on the basis of clear and

non-contradictory laws. 2) A second judge, Renato La Viola, solicited the remanding of

the case and called for the charge of "consensual homicide”. This second magistrate,

therefore, points to the criminal law provisions, applying Article 32 of the Constitution in

a purely programmatic way, 3) A third judge, Zaira Secchi, called for the dismissal of the

case under Article 32 of the Constitution, which she believes has an immediate

prescriptive legal value.




                                   2.2.1. The Nuvoli Case
On the evening of Monday, July 23, 2007 (the same day that dr. Mario Riccio was

acquitted of "consensual homicide"), Giovanni Nuvoli, 53 years old, a former football

referee, living in Alghero, Sardinia, died, like Welby, of amyotrophic lateral sclerosis, a

disease   resulting in the progressive paralysis of all four limbs and the muscles

controlling swallowing and speech. Nuvoli had repeatedly asked doctors to unplug the

appliance that allowed him to breathe and that kept him alive. Contrary to the Welby’s

situation, his requests fell on deaf ears and the attention that his case had been attracting

had resulted in the authorities providing "fair" but constant vigilance, in order to prevent

a second Welby case from occurring. According revelations made by the radical leader

Marco Pannella, an attempt to carry out Giovanni Nuvoli’s wishes was made on July 11,

when police commissioned by the Sassari public prosecutor prevented an anesthetist from

attempting to disconnect Nuvoli’s respirator. Consequently, according to the testimony of

Nuvoli’s wife, as of 16 July, having exhausted all other possibilities, Nuvoli began to

refuse food and water, eventually dying of starvation with the respirator attached and

helped only by some sedatives.



                           2.2.2. Comments on the Nuvoli case



The case of Giovanni Nuvoli was not like those of Piergiorgio Welby and Eluana

Englaro, characterized by a long judicial process. Yet his story allows us to highlight an

important aspect that might have escaped us in the analysis of the Welby case: Welby did

not have permission to disconnect the respirator and his decision was made despite the
opinion of the magistrate. Nevertheless, as seen in the Nuvoli case, the judiciary, with the

help of the police is able to prevent a decision like Welby’s from being carried out.

Hence one should not jump to conclusions when considering Dr. Riccio’s acquittal, as if

it had put an end to the complicated legal issues of the suspension of medical care.



                                  2.3. The Englaro Case.



In February 1992, 20-year-old Eluana Englaro fell into a vegetative state as a result of

injuries sustained in a car accident. Hospitalized in Lecco, she was fed with a nasogastric

tube, yet was able to breathe independently. In 1994 Eluana entered a private Catholic

nursing home in Lecco, where she was assisted by nuns. In 1999 her father, Beppino

Englaro, asked the Lecco court to suspend his daughter’s artificial feeding, but the judges

rejected the request. In this case, unlike that of Welby, the possible applicability of

Article 32 of the Constitution was under discussion. Article 32 refers specifically to the

right to refuse medical care, hence in the Englaro case the judiciary doubted whether food

and nutrition could be considered “medical treatment”. In fact, some would classify it as

nursing care or as "life-sustaining treatment". This issue has been the subject of much

debate: in 2004 the National Bioethics Committee was narrowly divided, with the

majority considering nutrition and hydration as assistance and instead the minority

judging it to all intents and purposes, as medical care.

In 2003 Beppino Englaro made another request to let his daughter Eluana die, but it was

once again rejected by the Court of Appeal.

On 16 October 2007, the Supreme Court of Cassation, with sentence number
21748/2007, again referred the decision to the Milan Court of Appeal, arguing that the

court may authorize the interruption of care under two concurrent circumstances:

        1) that " the condition of vegetative state is irreversible, on the basis of a strict

clinical opinion, and there is no medical basis, following the scientific standards

recognized at the international level, that allows the supposition that the person may have

the minimum possibility of any, even if feeble, recovery of consciousness and return to a

perception of the external world ".

        2) and that " such a request truly expresses the voice of the represented, on the

basis of clear, univocal and convincing evidence, obtained from his/her statements or

from his/her personality, lifestyle and convictions, corresponding to his/her way of

conceiving the very idea of personal dignity, before falling in the state of

unconsciousness".

        On 9 July 2008 the Milan Court of Appeal reexamined the issue and authorized

Beppino Englaro, as Eluana’s legal guardian, to discontinue the hydration and feeding

treatment that was keeping his daughter alive.

On 16 July 2008 the Chamber of Deputies and Senate raised a clash of competence

against the Supreme Court of Cassation, claiming that the October 2007 ruling was "a

substantially legislative act, innovative in the existing legal order. " Let us not forget that

the Italian legal system is not, like the English, based on so-called "common law" and

that the judgments of the judiciary are always based on the strict enforcement of existing

laws.

Such a conflict between legislature and judiciary powers had never occurred before in

history of the Italian Republic. The Constitutional Court was called upon to settle the
issue and on 8 October 2008 it found in favor of the Supreme Court of Cassation and

Court of Appeal, not judging the Supreme Court of Cassation’s ruling to be innovative

regarding the existing legal order.

On the morning of 6 February 2009 the team of volunteers assisting Eluana Englaro

announced the beginning of a progressive reducing of her nutrition. At 14h00 on the

same day, the Council of Ministers urgently approved a decree law to prohibit the

withdrawal of nutrition and hydration of patients in a vegetative state. The President of

the Republic refused to sign the decree, considering it unconstitutional. At 20h00, the

Council of Ministers approved a draft bill with the same contents of the previously

refused decree at an emergency meeting. This draft law was immediately transmitted to

the Senate, which normally closed on Mondays, and was already in session on Monday 9

February 2009.

Eluana Englaro died at 19:35 on 9 February 2009. The news reached the Senate while

draft bill n ° 1369 on nutrition and hydration was being discussed. The Government, in

consultation with the chairman of the Senate and parliamentary groups, in consequence,

decided to withdraw the bill in order to discuss a more articulate text relative to living

wills and end-of-life cases. Despite parliament’s agreement on the urgency to discuss this

more articulate living will text, due to strongly divided opinions on this issue, a law is

now even further from seeing the light of day.




                                      3. Towards a new law
As seen at the beginning of this article, there are two issues at stake in these cases: 1) the

collective interest in health and life of every member of society; and 2) everyone’s right

to choose freely whether or not to undergo a particular treatment.

The Italian Constitution tries to hold these values together, while the Criminal Code and

Civil Code seem to be unbalanced by one of the two sides. Therefore, one should start by

looking at the Constitution in order to resolve end-of-life legal issues in Italy. The

Constitution, in fact, is a great asset to our society, because it was not conceived to be

procedural as if it were a mere indication of the formal rules, permitting the coexistence

of individuals who respectively perceive themselves as "moral strangers". In contrast, the

first part of the Constitution affirms essential shared values and outlines a genuine "civil

code of ethics”. This is quite extraordinary, if we think that the political forces of that

time represented cultural universes that were poles apart: on the one hand, the

Communist Party, linked to the USSR, and on the other, the Christian Democrats, bound

to a Catholic world, which had not yet seen the opening of Second Ecumenical Council

of the Vatican, and various other parties in the middle, some of which assumed a liberal

viewpoint different to the above. I find it extraordinary that from these differing worlds

grew a dialog so fruitful that it resulted in the creation of a shared civil code of ethics,

codified in the first part of our Constitution, especially when considering that today,

within a political landscape with much more subtle differences, there is much stronger

opposition especially when it comes to ethical issues. Therefore, let us return to the

articles of the first part of the Constitution that are most relevant to this issue, namely

Article 32 and Article 13, to find useful elements in the construction of a shared civil
code of ethics for end-of-life cases. The first paragraph of Article 32 states, as we have

seen, that society has a collective interest in the health of each and every one of its

members. This collective interest is expressed in social life and laws in several ways:

through laws aimed at preventing accidents at work requiring one to take special

precautions, the obligatory use of seat belts when driving, the wearing of helmets when

riding motorbikes and restrictions on the use of drugs etc. To some extent all these rules

limit personal freedom, but they do so in the name of an important value: that of life and

health. We are willing to accept state interference, within limits, in our personal freedom

because it is not considered to be too intrusive and its motives are positive.

The stating of this value in the first paragraph of Article 32 is decisive because it affirms

that it is not indifferent to the community whether a person lives or dies. As is apparent

from the stenographic report on the Constituent Assembly’s work, our founding fathers

considered health care an important value that every individual should pursue, almost to

the point of prefiguring a sort of “duty to care for oneself” 2. Affirming that health is a

public interest maintains that one's life does not solely and exclusively concern only

himself: a young father who refuses life-saving treatment and in doing so leaves his

children without care; a businessman who depends solely on his entrepreneurial ability

and thereby puts his employees economically at risk; a young researcher in whom a

university has invested heavily in training, leaves without making his valuable

contribution, etc. are just some examples, but they all lead to one conclusion: our health

2
  In fact “the Honorable Mr. Merighi proposed an additional amendment to the first paragraph of Article
32, so that a declaration of health as a public interest could be followed by the duty of the individual to
"protect his or her physical health, out of respect for the community". The Honorable Mr. Tupini observed
that this principle could be considered implicit in the formula which has since been approved hence The
Honorable Mr. Merighi renounced the amendment"(V. Falzone, F. Palermo, F. Casentino, The Constitution
of the Republic of Italy, illustrated with preparatory work, Mondadori, Milan, 1976, p. 114).
is not exclusively private and individual, applying only to ourselves. The “duty to care for

oneself” stems from this idea that appears in the parliamentary debate relating to the first

paragraph of Article 32 of the Constitution.

The second paragraph of Article 32, which affirms the right to refuse treatment, is not

inconsistent with the first. If, in fact, it is a civic duty to care for oneself, because health is

a collective interest, it nevertheless doesn’t require one to undergo treatment forcibly,

even providing treatment by violent means in an inhumane and degrading way, that

certainly would offend one’s human dignity. Such an intrusion would indeed constitute a

degree of intrusiveness of the personal sphere of subject that is absolutely not comparable

to the limitations imposed, for example, by the obligation to use a motorcycle helmet or a

seat belt. The second paragraph of Article 32 and Article 13 of the Constitution therefore

protect a fundamental right of the citizen, that has become one of the cornerstones of

liberal constitutions and that goes back to the “habeas corpus”, a privilege that the

English barons were able to wrest from the King John Lackland in 1215, when they

established the Magna Carta Libertatum, one of the pillars of western legal culture.

"Habeas corpus" literally means "may you have the disposition of your body" or that your

body is yours and that no one can make you do something without your consent. Nobody,

except a judge, if he or she thinks that a law has been violated, can deprive a citizen of

the power over his own body. A power that in the absence of a crime, tries to exert power

over our bodies without our consent, would be acting outside of the law and would be

considered a "tyrant." The “Habeas corpus” is therefore the safeguard of individual

freedom against the will of state. Like the value of life and health, such a right is

essential. How can we therefore reconcile the two?
Attempting to reconcile these two principles should be the main objective of an end-of-

life law in Italy. The necessity for such a law is evident in the fact that due to the current

regulatory chaos, each court judges the same case or similar cases differently. But when

the law is not equal for all, we are faced with supreme injustice and it is precisely this

supreme injustice that law should remedy. But this still begs the question, how could an

ordinary law reconcile the two principles contained in Article 32 of the Constitution?

The answer perhaps lies in the following. The principle of collective health could

be protected by trying to offer other alternatives to people who’s will it is to die. Requests

regarding euthanasia often need to be decoded. If one discovers that a patient has asked to

die out of fear of suffering, he or she needs to be informed of all the possibilities offered

by palliative care. If the patient asks to die because of depression caused by the disease or

by feelings of abandonment related to his or her situation, one should offer psychological

support, and so on. In short, I would say that the protection of the principle of collective

interest for health can help to avoid situations in which the doctor does little more than

passively adhere to the wishes of the patient.

The doctor cannot limit himself to just passively performing any request, as if he were a

mere technician, obedient to requests made by the patient. The doctor, by contrast, is first

and foremost the depositary of the values of his discipline (to promote health and save

peoples’ lives) and, secondly, a spokesperson for society, which has an interest in

safeguarding the health of each and every one of its members. Hence, the doctor should

compare these values, in a frank, yet in-depth interview regarding the patient’s request to

die. Should the patient persist, the physician should refrain from forcing required therapy

on him, even if the patient is unable to actively oppose the administration of the said
therapy (as in the Welby and Nuvoli cases), or if the patient is no longer capable of

consent, but has made his wishes clear in a documented request. The latter, the law on

living wills, if approved, would most likely not allow the will of the patient to be

reconstructed through testimony (as in the Eluana Englaro case), but would require the

submission of a written will to their general practitioner or notary. On this point at least,

all parties seem to agree.

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Fabriccio The Suspension Of Medical Treatment In Italy Definitive

  • 1. THE SUSPENSION OF MEDICAL TREATMENT IN ITALY. SOME RECENT CASES 1. The legislative framework 1.1. Foreword In order to understand what has happened recently in Italy, in reference to cases in which patients have expressed the will to discontinue therapy critical to their survival, one must begin with a brief analysis of Italian legislation. Italian laws, like those of other countries, are the result of a long legislative process that, over time, has led to the stratification and overlapping of sometimes conflicting rules. It is precisely because of these contrasts in norms that some known cases, of which we will be looking at, have been judged differently (and sometimes contradictorily) by the various judges who have taken them into consideration. Furthermore, because of these legislative conflicts, it is still not clear what the patients' rights are, when it comes to the possibility of refusing lifesaving care. Therefore, I will be delving into this legal labyrinth, looking at the different laws, starting from older ones right up to those more recent, and how they affect this issue. 1.2. The Penal Code Some rules to which judges have referred, in passing judgment in these cases, are from the Italian penal code, which dates back to 1930. Regarding the issues that concern us, this code, although having undergone many changes over the years, has maintained an
  • 2. underlying philosophy that reflects the value of the unavailability of life, a value that prevails over other principles, such as those relating to individual autonomy. In fact there are numerous articles in the penal code that could come into play in evaluating medical decisions at the end of one’s life. Article 40, for example, states that “refraining from preventing an event, when it is one’s duty to do so, is equivalent to causing it”. According to the aforementioned article, and the fact that it is the physician’s professional duty to save his patients’ lives, when a doctor lets a patient die at his request, it is as if he were killing that patient. According to Article 40, the doctor should therefore be charged with the crime of homicide. Article 54 further establishes that "no one shall be punished for acts committed under the constraint of necessity to preserve himself or others from the risk of serious personal harm”: this article is often cited in the justifying non-compliance with the will of patients in danger of losing their lives, who are subject to emergency therapy against their will (e.g. a Jehovah’s Witness who is subjected to a blood transfusion). Then there are articles 575-576-577-579-580 that refer to the crime of homicide in its various shapes, forms and aggravating circumstances. Here, I’m inclined to cite Article 579 in particular, which condemns "consensual homicide" (under which euthanasia falls) and Article 580, which punishes "incitement or helping in suicide "(in this case including assisted suicide). Finally, article 593 condemns "the omission to assist”, a crime which can implicate the assisting physician who does not intervene, in the death of a patient who, for example, has had his or her automatic respirator switched off, or nasogastric feeding tube removed.
  • 3. 1.3. The Civil Code The Civil Code enacted in 1942, is only slightly more recent and is also affected by the same type of approach. One needs to look no further than Art. 5, which states that "acts of disposition of one’s own body are prohibited when causing permanent physical damage, or are otherwise contrary to law, public order or morality." As a consequence of this article we are also prohibited to let ourselves die, because death is obviously the biggest among permanent physical damage. 1.4. The Constitution The most important turning point in Italian legislation took place in 1948 when, after the fall of the fascist regime, the Constitution of the Italian Republic was enacted. In fact, in the new Constitution the principle of absolute unavailability of life is softened, becoming a principle of one’s right to health protection and promotion of health as a collective interest. Indeed the first paragraph of Article 32 states that "The Republic protects health as a basic individual right and public interest, and guarantees free care to those in need”. But the most significant news was that the right to refuse treatment was ratified in the Constitution in the second paragraph of Article 32, which states, "no one can be obliged to undergo medical treatment except under the provision of law" clarifying that "the law cannot, under no circumstances, violate the limits of respect for human dignity”. This turning point is extremely important in that it moves from one regulatory framework, essentially imbued with the principle of the unavailability of life,
  • 4. to a new and for the most part voluntary approach, therefore enabling the inclusion of the principle of individual autonomy. The reason that the Constituent Assembly came to these conclusions is due to the fact that, among other things, the period in which the Assembly was active in drafting the Constitution (1946-1948), massive media attention was focused on Nuremberg, where Nazi criminals and certain doctors who had worked in the death camps were being tried. In fact, it was during these trials that the "Nuremberg Code” was established which, first and foremost, recognizes the patient's right to refuse treatment. The second paragraph of Article 32 is often referred to in relation to Article 13 of the Constitution, which does not concern specific medical treatment, but more generally, the protection of people’s liberty: "Personal freedom is inviolable. Any form of detention, inspection or personal search, or any other restriction of personal freedom is prohibited, except for reasons given in a court of law and only in cases under the provision of law. (...) ". This article, however, may be invoked even in cases where a person is forcibly and against his or her will subjected to medical treatment, because, in order to do this, it is necessary to deprive the said person of his or her liberty, by keeping him or her in a medical facility, forcibly administering treatment to him or her, etc. 1.5. The Oviedo Convention In 1997, along with the governments of the Council of Europe member states, the Italian government signed the so-called "Oviedo Convention" (Convention on Human Rights and Biomedicine) further confirming the patients’ right to refuse treatment1. 1 Art. 5: "An intervention in the health field can be carried out after the person concerned has given free
  • 5. This Convention was subsequently ratified by Parliament in 2001 with Law No. 145. However, being an international treaty, Government subscription and ratification by Parliament was not sufficient for it to come into force, so a third step needed to be taken by the Government: the submission of the ratification instrument to the Council of Europe (the Convention body). Therefore, at present, after 12 years of underwriting and 8 years after parliamentary ratification, the Oviedo Convention has not yet come into force in Italy. 1.6. Secondary sources of law In addition to the previously mentioned rules, there are also so-called "secondary sources of law”: rules that have no legal value as such, but which may nevertheless be taken into account by judges in sentencing, even if at a different level than the others. In our case, of these "secondary sources", the Code of Medical Deontology, which in Italy has some interesting features, when compared with the current legislative framework, may be included. There has indeed been much reflection on the issues pertaining to the end of one’s life by the Italian medical profession and this reflection has resulted in the development of a new Code of Medical Deontology, approved on December 15 2006, just a few days before the death of Piergiorgio Welby (one of the cases discussed below). A sort of pre-emption of still-in-progress parliamentary work was made in the approval of this new code: while the political class was divided (and is still divided) on whether to approve a law on advance directives, a new Article (n. 38) was inserted into the new and informed consent. This person shall beforehand, be provided with suitable information on the purpose and nature of the intervention as well as its consequences and risks. The person concerned may at any time freely withdraw his or her consent".
  • 6. Code of Medical Deontology entitled "The rights of citizens and advance directives." The last paragraph of the Article obliges the physician to “consider what was previously stated by the patient in a clear and documented manner, should the patient be unable to express his or her own will”. Also in the 1998 version, art. 34 of the Code of Medical Deontology, states that "the physician should not undertake diagnosis and / or treatment without acquiring the patient’s informed consent". 2. Case studies 2.1.1. The Welby case In 1963, at the age of 18, Piergiorgio Welby was diagnosed with " Facio-Scapulo- Humeral Dystrophy”, a hereditary disease described in medical literature as the progressive degeneration of the skeletal muscles. 1980 marked the beginning of Welby’s most difficult years: his condition worsened and he lost his ability to walk. Thoroughly conscious of the possible evolution of his illness, Welby made a pact with his wife Mina: if he were to suffer a respiratory crisis, Mina would not call the emergency services. Welby also refused to undergo a tracheotomy, which would have rendered him a slave to a ventilator. His wife, however, when faced with the reality of the situation was unable to find the strength to fulfill the pact. On 14 July 1997, due to severe respiratory failure, Welby lost consciousness, fell into a coma, and against his will, underwent a tracheotomy and was connected to a ventilator. In September 2006, nine years after his tracheotomy, Welby
  • 7. wrote a heartfelt letter to the President of the Republic, describing his situation in detail and requesting him to put an end to his suffering. Shortly after writing the letter to the President of the Republic, Welby asked his physician, Dr Giuseppe Casale, to cease artificial ventilation and to disconnect the automatic respirator. The doctor, however, refused and gave the reasons for his refusal in a written text dated 25 November 2006. At this point Welby involved the judiciary by means of an "urgent appeal to obtain the disconnection of the artificial respirator under terminal sedation"(28 November 2006). In his appeal Welby's lawyers refrain from using the term "euthanasia", which Welby used in his letter to the President of the Republic, and in so doing, the request assumes the characteristics of a simple rejection of care, based on Article 32 of the Italian Constitution. In an ordinance filed on 16.12.2006, judge Angela Salvio declared Welby’s appeal to be completely unacceptable because, while recognizing the existence of personal rights as guaranteed in Article 32 of the Constitution, the requesting of the interruption of medical therapy, was not legally protected. Judge Salvio observed that the positive legislation is oriented in the opposite direction (in reference to Article 5 the Civil Code, which prohibits acts of disposition of one’s own body which result in permanent damage and Articles 575, 576, 577 n.3, 579, 580 of the Penal Code, which punishes homicide and assisted suicide in particular) adding that the Italian legal system lacked the specific legislation to regulate end-of-life decisions in a clinical setting. Since it was impossible to detach the respirator with the consent of the court, Welby decided to proceed anyway, having found an anesthetist willing to meet its needs. The anesthetist was dr. Mario Riccio, who went to Welby's house on 18 December 2006 to check the evolution of the disease and to collect the patient's will who, once again,
  • 8. confirmed his wish to be sedated and detached from the respirator. Two days later, in the presence of Welby’s family members and people who had supported him in his battle for recognition of his final decision, dr. Riccio proceeded to sedate the patient and, soon after, detached the automatic respirator. According to the medical-legal report, Welby died within half an hour of cardiocirculatory arrest, due to severe respiratory failure, caused by Welby’s illness: progressive scapolohumeral dystrophy. After Welby's death, interest in his story has continued to grow, even following investigations conducted into dr. Riccio. An initial examination of dr. Riccio’s conduct was carried out, from a deontological point of view, by the College of Physicians of Cremona, to which dr. Riccio belongs. Two elements were taken into consideration: firstly, the "clear, definite and unequivocal" desire of a patient, "perfectly capable of consent and expression "," fully aware of the consequences of the onset of death " and secondly the fact that the anesthetist "had not used drugs or other substances in determining death" and that the resulting terminal sedation " pharmaceutical dosage, method and administration time were in line with standard protocols". For these reasons, the College of Physicians of Cremona’s Disciplinary Commission closed this case in a decision dated 1 February 2007. A second examination was conducted, from a penal perspective, by the Office of the State Prosecutor in Rome, resulting in a very similar an outcome to that of the College of Physicians of Cremona, that is, the case being dismissed (5 March 2007). This conclusion was based on the outcome of medico-legal advice, which excludes sedation as a significant cause of death, concluding that the only cause of death was respiratory failure due to the disease. The request for the dismissal of the case, by
  • 9. substitute prosecutor Gustavo de Marinis, was rejected on April 4 by the preliminary investigations judge in Rome, Renato La Viola, calling on the Office of the State Prosecutor in Rome to set up a compulsory head of imputation, soliciting the remanding of the case by placing the doctor on the criminal offense register under the hypothesis of "consensual homicide" (a crime under Article 579 of the Penal Code, which can result in up to 15 years of imprisonment). The proceedings finally came to an end on July 23 2007, with the entering of a nonsuit regarding the doctor. Zaira Secchi, the judge presiding over the preliminary hearing in Rome, in this case, referred to Article 32 of the Italian Constitution which clearly states that "no one can be bound to a particular medical treatment if not under the provision of law" as well as Article 13 which states that "personal liberty is inviolable". The entering of a nonsuit shows that the right to refuse treatment is also confirmed by Article 5 of the Oviedo Convention, that, "although not yet in force in our system, it is still valid as criteria to be interpreted by the judge, foregoing principles in accordance in our Constitution". The sentence notes that the assertion of one’s right to refuse treatment has some records in the jurisprudence of the Constitutional Court (Const. Co. n. 45/65, n. 161/85, n. 471/90, n. 238/96), affirming that the right to refuse care is an "inviolable personal right, immediately prescriptive and effective in our legal system, included amongst the most highly protected individual values”. The court recognized that dr. Riccio’s behavior was in accordance with that punishable for consensual homicide (Article 579 of the Penal Code), but also notes that in this particular case, dr. Riccio’s conduct was in the context of a therapeutic relationship and was therefore under the guise of the patient’s constitutional right to refuse unwanted medical treatment. According to
  • 10. the sentence, dr. Riccio’s conduct is therefore not censurable, because it is considered as a fulfillment of duty and, as such, he is not liable, as established in article 51 of the Penal Code. 2.1.2. Comments on the Welby case The dialectic between Penal Code laws and Article 32 of the Constitution clearly emerges from the Piergiorgio Welby and dr. Riccio case. In fact three different statements were made by different judges, at different levels, clearly demonstrating the difficulties of this issue. The three statements cover the spectrum of possible choices: 1) A first magistrate, judge Angela Salvio, argued that the judiciary was unable to decide due to the incoherence of the laws, and therefore relied on the intervention of parliament in order to obtain clarification, thus allowing magistrates to make decisions on the basis of clear and non-contradictory laws. 2) A second judge, Renato La Viola, solicited the remanding of the case and called for the charge of "consensual homicide”. This second magistrate, therefore, points to the criminal law provisions, applying Article 32 of the Constitution in a purely programmatic way, 3) A third judge, Zaira Secchi, called for the dismissal of the case under Article 32 of the Constitution, which she believes has an immediate prescriptive legal value. 2.2.1. The Nuvoli Case
  • 11. On the evening of Monday, July 23, 2007 (the same day that dr. Mario Riccio was acquitted of "consensual homicide"), Giovanni Nuvoli, 53 years old, a former football referee, living in Alghero, Sardinia, died, like Welby, of amyotrophic lateral sclerosis, a disease resulting in the progressive paralysis of all four limbs and the muscles controlling swallowing and speech. Nuvoli had repeatedly asked doctors to unplug the appliance that allowed him to breathe and that kept him alive. Contrary to the Welby’s situation, his requests fell on deaf ears and the attention that his case had been attracting had resulted in the authorities providing "fair" but constant vigilance, in order to prevent a second Welby case from occurring. According revelations made by the radical leader Marco Pannella, an attempt to carry out Giovanni Nuvoli’s wishes was made on July 11, when police commissioned by the Sassari public prosecutor prevented an anesthetist from attempting to disconnect Nuvoli’s respirator. Consequently, according to the testimony of Nuvoli’s wife, as of 16 July, having exhausted all other possibilities, Nuvoli began to refuse food and water, eventually dying of starvation with the respirator attached and helped only by some sedatives. 2.2.2. Comments on the Nuvoli case The case of Giovanni Nuvoli was not like those of Piergiorgio Welby and Eluana Englaro, characterized by a long judicial process. Yet his story allows us to highlight an important aspect that might have escaped us in the analysis of the Welby case: Welby did not have permission to disconnect the respirator and his decision was made despite the
  • 12. opinion of the magistrate. Nevertheless, as seen in the Nuvoli case, the judiciary, with the help of the police is able to prevent a decision like Welby’s from being carried out. Hence one should not jump to conclusions when considering Dr. Riccio’s acquittal, as if it had put an end to the complicated legal issues of the suspension of medical care. 2.3. The Englaro Case. In February 1992, 20-year-old Eluana Englaro fell into a vegetative state as a result of injuries sustained in a car accident. Hospitalized in Lecco, she was fed with a nasogastric tube, yet was able to breathe independently. In 1994 Eluana entered a private Catholic nursing home in Lecco, where she was assisted by nuns. In 1999 her father, Beppino Englaro, asked the Lecco court to suspend his daughter’s artificial feeding, but the judges rejected the request. In this case, unlike that of Welby, the possible applicability of Article 32 of the Constitution was under discussion. Article 32 refers specifically to the right to refuse medical care, hence in the Englaro case the judiciary doubted whether food and nutrition could be considered “medical treatment”. In fact, some would classify it as nursing care or as "life-sustaining treatment". This issue has been the subject of much debate: in 2004 the National Bioethics Committee was narrowly divided, with the majority considering nutrition and hydration as assistance and instead the minority judging it to all intents and purposes, as medical care. In 2003 Beppino Englaro made another request to let his daughter Eluana die, but it was once again rejected by the Court of Appeal. On 16 October 2007, the Supreme Court of Cassation, with sentence number
  • 13. 21748/2007, again referred the decision to the Milan Court of Appeal, arguing that the court may authorize the interruption of care under two concurrent circumstances: 1) that " the condition of vegetative state is irreversible, on the basis of a strict clinical opinion, and there is no medical basis, following the scientific standards recognized at the international level, that allows the supposition that the person may have the minimum possibility of any, even if feeble, recovery of consciousness and return to a perception of the external world ". 2) and that " such a request truly expresses the voice of the represented, on the basis of clear, univocal and convincing evidence, obtained from his/her statements or from his/her personality, lifestyle and convictions, corresponding to his/her way of conceiving the very idea of personal dignity, before falling in the state of unconsciousness". On 9 July 2008 the Milan Court of Appeal reexamined the issue and authorized Beppino Englaro, as Eluana’s legal guardian, to discontinue the hydration and feeding treatment that was keeping his daughter alive. On 16 July 2008 the Chamber of Deputies and Senate raised a clash of competence against the Supreme Court of Cassation, claiming that the October 2007 ruling was "a substantially legislative act, innovative in the existing legal order. " Let us not forget that the Italian legal system is not, like the English, based on so-called "common law" and that the judgments of the judiciary are always based on the strict enforcement of existing laws. Such a conflict between legislature and judiciary powers had never occurred before in history of the Italian Republic. The Constitutional Court was called upon to settle the
  • 14. issue and on 8 October 2008 it found in favor of the Supreme Court of Cassation and Court of Appeal, not judging the Supreme Court of Cassation’s ruling to be innovative regarding the existing legal order. On the morning of 6 February 2009 the team of volunteers assisting Eluana Englaro announced the beginning of a progressive reducing of her nutrition. At 14h00 on the same day, the Council of Ministers urgently approved a decree law to prohibit the withdrawal of nutrition and hydration of patients in a vegetative state. The President of the Republic refused to sign the decree, considering it unconstitutional. At 20h00, the Council of Ministers approved a draft bill with the same contents of the previously refused decree at an emergency meeting. This draft law was immediately transmitted to the Senate, which normally closed on Mondays, and was already in session on Monday 9 February 2009. Eluana Englaro died at 19:35 on 9 February 2009. The news reached the Senate while draft bill n ° 1369 on nutrition and hydration was being discussed. The Government, in consultation with the chairman of the Senate and parliamentary groups, in consequence, decided to withdraw the bill in order to discuss a more articulate text relative to living wills and end-of-life cases. Despite parliament’s agreement on the urgency to discuss this more articulate living will text, due to strongly divided opinions on this issue, a law is now even further from seeing the light of day. 3. Towards a new law
  • 15. As seen at the beginning of this article, there are two issues at stake in these cases: 1) the collective interest in health and life of every member of society; and 2) everyone’s right to choose freely whether or not to undergo a particular treatment. The Italian Constitution tries to hold these values together, while the Criminal Code and Civil Code seem to be unbalanced by one of the two sides. Therefore, one should start by looking at the Constitution in order to resolve end-of-life legal issues in Italy. The Constitution, in fact, is a great asset to our society, because it was not conceived to be procedural as if it were a mere indication of the formal rules, permitting the coexistence of individuals who respectively perceive themselves as "moral strangers". In contrast, the first part of the Constitution affirms essential shared values and outlines a genuine "civil code of ethics”. This is quite extraordinary, if we think that the political forces of that time represented cultural universes that were poles apart: on the one hand, the Communist Party, linked to the USSR, and on the other, the Christian Democrats, bound to a Catholic world, which had not yet seen the opening of Second Ecumenical Council of the Vatican, and various other parties in the middle, some of which assumed a liberal viewpoint different to the above. I find it extraordinary that from these differing worlds grew a dialog so fruitful that it resulted in the creation of a shared civil code of ethics, codified in the first part of our Constitution, especially when considering that today, within a political landscape with much more subtle differences, there is much stronger opposition especially when it comes to ethical issues. Therefore, let us return to the articles of the first part of the Constitution that are most relevant to this issue, namely Article 32 and Article 13, to find useful elements in the construction of a shared civil
  • 16. code of ethics for end-of-life cases. The first paragraph of Article 32 states, as we have seen, that society has a collective interest in the health of each and every one of its members. This collective interest is expressed in social life and laws in several ways: through laws aimed at preventing accidents at work requiring one to take special precautions, the obligatory use of seat belts when driving, the wearing of helmets when riding motorbikes and restrictions on the use of drugs etc. To some extent all these rules limit personal freedom, but they do so in the name of an important value: that of life and health. We are willing to accept state interference, within limits, in our personal freedom because it is not considered to be too intrusive and its motives are positive. The stating of this value in the first paragraph of Article 32 is decisive because it affirms that it is not indifferent to the community whether a person lives or dies. As is apparent from the stenographic report on the Constituent Assembly’s work, our founding fathers considered health care an important value that every individual should pursue, almost to the point of prefiguring a sort of “duty to care for oneself” 2. Affirming that health is a public interest maintains that one's life does not solely and exclusively concern only himself: a young father who refuses life-saving treatment and in doing so leaves his children without care; a businessman who depends solely on his entrepreneurial ability and thereby puts his employees economically at risk; a young researcher in whom a university has invested heavily in training, leaves without making his valuable contribution, etc. are just some examples, but they all lead to one conclusion: our health 2 In fact “the Honorable Mr. Merighi proposed an additional amendment to the first paragraph of Article 32, so that a declaration of health as a public interest could be followed by the duty of the individual to "protect his or her physical health, out of respect for the community". The Honorable Mr. Tupini observed that this principle could be considered implicit in the formula which has since been approved hence The Honorable Mr. Merighi renounced the amendment"(V. Falzone, F. Palermo, F. Casentino, The Constitution of the Republic of Italy, illustrated with preparatory work, Mondadori, Milan, 1976, p. 114).
  • 17. is not exclusively private and individual, applying only to ourselves. The “duty to care for oneself” stems from this idea that appears in the parliamentary debate relating to the first paragraph of Article 32 of the Constitution. The second paragraph of Article 32, which affirms the right to refuse treatment, is not inconsistent with the first. If, in fact, it is a civic duty to care for oneself, because health is a collective interest, it nevertheless doesn’t require one to undergo treatment forcibly, even providing treatment by violent means in an inhumane and degrading way, that certainly would offend one’s human dignity. Such an intrusion would indeed constitute a degree of intrusiveness of the personal sphere of subject that is absolutely not comparable to the limitations imposed, for example, by the obligation to use a motorcycle helmet or a seat belt. The second paragraph of Article 32 and Article 13 of the Constitution therefore protect a fundamental right of the citizen, that has become one of the cornerstones of liberal constitutions and that goes back to the “habeas corpus”, a privilege that the English barons were able to wrest from the King John Lackland in 1215, when they established the Magna Carta Libertatum, one of the pillars of western legal culture. "Habeas corpus" literally means "may you have the disposition of your body" or that your body is yours and that no one can make you do something without your consent. Nobody, except a judge, if he or she thinks that a law has been violated, can deprive a citizen of the power over his own body. A power that in the absence of a crime, tries to exert power over our bodies without our consent, would be acting outside of the law and would be considered a "tyrant." The “Habeas corpus” is therefore the safeguard of individual freedom against the will of state. Like the value of life and health, such a right is essential. How can we therefore reconcile the two?
  • 18. Attempting to reconcile these two principles should be the main objective of an end-of- life law in Italy. The necessity for such a law is evident in the fact that due to the current regulatory chaos, each court judges the same case or similar cases differently. But when the law is not equal for all, we are faced with supreme injustice and it is precisely this supreme injustice that law should remedy. But this still begs the question, how could an ordinary law reconcile the two principles contained in Article 32 of the Constitution? The answer perhaps lies in the following. The principle of collective health could be protected by trying to offer other alternatives to people who’s will it is to die. Requests regarding euthanasia often need to be decoded. If one discovers that a patient has asked to die out of fear of suffering, he or she needs to be informed of all the possibilities offered by palliative care. If the patient asks to die because of depression caused by the disease or by feelings of abandonment related to his or her situation, one should offer psychological support, and so on. In short, I would say that the protection of the principle of collective interest for health can help to avoid situations in which the doctor does little more than passively adhere to the wishes of the patient. The doctor cannot limit himself to just passively performing any request, as if he were a mere technician, obedient to requests made by the patient. The doctor, by contrast, is first and foremost the depositary of the values of his discipline (to promote health and save peoples’ lives) and, secondly, a spokesperson for society, which has an interest in safeguarding the health of each and every one of its members. Hence, the doctor should compare these values, in a frank, yet in-depth interview regarding the patient’s request to die. Should the patient persist, the physician should refrain from forcing required therapy on him, even if the patient is unable to actively oppose the administration of the said
  • 19. therapy (as in the Welby and Nuvoli cases), or if the patient is no longer capable of consent, but has made his wishes clear in a documented request. The latter, the law on living wills, if approved, would most likely not allow the will of the patient to be reconstructed through testimony (as in the Eluana Englaro case), but would require the submission of a written will to their general practitioner or notary. On this point at least, all parties seem to agree.