CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ IN THE DOCTORǧPATIENT RELATIONSHIP… empowering patients and simultaneously strengthening the therapeutic dyad, in accordance with patient-centred medicine 4 . Perhaps, as detailed below, it marks the end of the paternalistic belief that “doctor knows best” 5 . Italian law has the merit of having gone beneath the surface of consent on paper (i.e. utilizing the form for written informed consent) to reveal what is at the heart of the doctor/ patient relationship 6 . Indeed, it promotes and enhances the patient’s right to this kind of relationship with his doctor, one that “is founded on informed consent” 7 . This new discipline enshrines the “foundational” value of consent as a “continuous feature” of the doctor/patient relationship. Consent leads to the “meeting” (and therefore collision) between “the patient’s decision-making autonomy and the doctor’s professional autonomy and responsibility” 8 . This relationship, on the other hand, rejects the understanding of consent as a simple act, one which favours bureaucratic adherence to protocols set out for doctors which ends up inhibiting and de-personalising the doctor/patient relationship 9 . A new therapeutic relationship model emerges: not the familiar one-on-one relationship, but a scenario where treatment is provided by multidisciplinary teams inside public or private structures. However, valid consent to medical treatment may only be achieved in a broader and more authentic relational context 10 , where consent – now understood as a relational decision- making approach – consists of a process that involves healthcare professionals, the patient THE ROLE OF CONSENSUS 4 BERG, Jessica W. et al. Informed Consent. Legal Theory and Clinical Practice . Oxford University Press, New York 2001, vii. See also KENNEDY, Ian. Treat me right. Essays in Medical Law and Ethics. Claredon Press, Oxford 1988. Among Italian scholars, see PUCELLA, Roberto. Autodeterminazione e responsabilità nella relazione di cura . Giuffrè, Milano 2010; ZATTI, Paolo. La via (crucis) verso un diritto della relazione di cura . Rivista critica del diritto privato. (2017), p. 3 ff. 5 It was a historically embedded attitude within the practice of medicine. For more details, see KATZ, Jay. The Silent World of Doctor and Patient. The Free Press, New York 1984, passim. See also FADEN, Ruth R. and BEAUCHAMP, Tom L. A History and Theory of Informed Consent . Oxford University Press, New York/Oxford 1986. 6 It is easy to note the increasing attention enjoyed by the person within the legal system (national and supranational), which has become - in all its facets - a prime objective of legal protection. See PERLINGIERI, Pietro. La personalità umana nell’ordinamento giuridico. Jovene, Napoli 1972; Id., Valori costituzionali e tutela dei diritti. Rass. dir. civ . (1989), p. 324 ss.; SCALISI, Antonino. Il valore della persona nel sistema e i nuovi diritti della personalità . Giuffrè, Milano 1990; SCHLESINGER, Piero. La persona (rilevanza della nozione e opportunità di rivederne le principali caratteristiche). Riv. dir. civ . (2008), p. 379 ss. 7 According to article 1, paragraph 1, Law no. 219/2017: «This law, in accordance with the principles set out in articles 2, 13 and 32 of the Constitution of the Italian Republic and articles 1, 2 and 3 of the Charter of Fundamental Rights of the European Union, protects the right to life, health, dignity and a patient’s right to self-determination and stipulates that no course of medical treatment may be initiated or pursued without the free and informed consent of the person involved, except in those instances provided for under the law». 8 Cf. article 1, paragraph 2. 9 Cf. Montgomery v. Lanarkshire Health Board [2015] UKSC 11, par. 90: «… the doctor’s advisory role involves dialogue, the aim of which is to ensure that the patient understands the seriousness of her condition, and the anticipated benefits and risks of the proposed treatment and any reasonable alternatives, so that she is then in a position to make an informed decision. This role will only be performed effectively if the information provided is comprehensible. The doctor’s duty is not therefore fulfilled by bombarding the patient with technical information which she cannot reasonably be expected to grasp, let alone by routinely demanding her signature on a consent form». 10 Even when acquired for every single diagnosis or therapy-related intervention in accordance with the law.

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