CYIL vol. 10 (2019)

MASSIMO FOGLIA CYIL 10 ȍ2019Ȏ and his family and that develops within a human framework made up of all the interactions between the relevant parties 11 . The “humanist” or “anthropological” spirit of this law (i.e. cure the person, not the disease) 12 focuses on the encounter and the relationship between people 13 . The more the patient’s reliance on medical science is desperate and blind, the more the “human” component is called upon to act in the most tragic disease-related experiences, allowing each one – where circumstances permit – to make his own decisions before, in the case of terminal illness, facing “one’s death” 14 . The quality of the communication and dialogue between the parties to the therapeutic relationship is the central element of this endeavour, given that “doctor/patient communication time takes place during treatment time” 15 . Upon it rests the success or the failure of the therapeutic experience 16 . Indeed, healthcare professionals touch on legal (and ethical) issues when relating and communicating with their patients. At these times, a general principle of social solidarity is at play; it lends substance to the role played by consent in therapeutic relationships. This same tenet requires the professional to act in the interest of others, regardless of the existence of contractual obligations or the contents of specific legal provisions 17 . 11 See ENTRALGO, Pedro Laín. Antropología médica . Salvat, Barcelona 1984. 12 In the line with the current definition of “health”: « Health is a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity. The enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition» (see the Preamble of Constitution of the World Health Organization ). 13 See PELLEGRINO, Edmund D. Humanism and the Physician . University of Tennessee Press, Knoxville 1979, p. 9: «Medical humanism has achieved the status of a salvation theme, which can absolve the perceived “sins” of modern medicine. The list of those sins is long, varied, and often contradictory: overspecialization; technicism; overprofessionalization; insensitivity to personal and sociocultural values; too narrow a construal of the doctor’s role; too much “curing” rather than “caring”; not enough emphasis on prevention, patient participation, and patient education; too much science; not enough liberal arts; not enough behavioral science; too much economic incentive; a “trade school” mentality; insensitivity to the poor and socially disadvantaged; overmedicalization of veryday life; inhumane treatment of medical students; overwork by house staff; deficiencies in verbal and nonverbal communication». The Author has played a central role in shaping the fields of bioethics and the philosophy of medicine. His writings encompass original explorations of the healing relationship, the need to place humanism in the medical curriculum, the nature of the patient’s good, and the importance of a virtue- based normative ethics for health care. Cf. ENGELHARDT, Hugo Tristram, Jr. and JOTTERAND, Fabrice (eds.). The Philosophy of Medicine Reborn: A Pellegrino Reader . University of Notre Dame Press, Notre Dame, Indiana 2008. 14 For a recent account, see KALANITHI, Paul. When Breath Becomes Air . Random House, New York 2016. 15 According to article 1, paragraph 8, Law no. 219/2017: «The time during which the communication takes place between the physician and the patient is deemed to be treatment time». Cf. FADEN, Ruth R. and BEAUCHAMP, Tom L. A History and Theory of Informed Consent . Oxford University Press, New York/Oxford 1986, p. 307: «The central question is not merely, “What facts should the professional provide?” but “What should the professional ask and say?” and, as we shall see shortly, “How should the professional act?”». 16 See ENTRALGO, Pedro Laín. El médico y el infermo . Guadarrama, Madrid 1969. 17 It goes without saying that the patient must first receive adequate information on the purpose and nature of the intervention as well as its consequences and its risks. Information is the prerequisite for the valid consent and has an intrinsic value. Cf. PERLINGERI, Pietro. L’informazione come bene giuridico. Rass. dir. civ . (1990), p. 326 ss.

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