CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ IN THE DOCTORǧPATIENT RELATIONSHIP… However, the reality of the healthcare profession is different: informed consent is reduced to form-signing 18 . Rules pertaining thereto are sometimes considered an obstacle to treatment in a fast-paced healthcare environment. Completing forms, collecting signatures, following protocols are all now unavoidable activities when it comes to healthcare. Yet, only too often are these activities causes of anxiety for doctors and nurses. In addition, there is the desire to make sure informed consent forms are as unassailable as possible: once signed, they must protect healthcare professionals from damage claims. The aim of this article is to investigate the shape and character of the medical consensus with a view to the new law. A more realistic appraisal of the phenomenon opens the door to a “progressive” form of consent. This consent is a process involving guidance and comprises a relational decision-making process, including an encounter and a dialogue between a doctor and his patient 19 . In this way, the consensual nature of informed consent draws meaning from “inside” the doctor/patient relationship. 2. Informed Consent and Duty to Disclose The right of the patient to receive adequate information in anticipation of the treatment implies, specifically, the duty on the part of the physician to provide all the information necessary in order to ensure the patient’s right to self-determination and their individual autonomy. 20 Indeed, save in the case of emergencies, in the Italian legal system 21 any medical or health treatment requires the prior consent of the patient without which the medical activity would be unlawful. With reference to the exact content of the duty to inform , jurisprudence has pointed out that it is not a mere “bureaucratic step”, as the patient’s consent has to be expressed as a result of comprehensive information given by the physician, including the proposed therapy’s or surgery’s contraindications or potential harm and the indication of the “seriousness” of the treatment effects 22 . 18 For a recent survey, see QUAGLIARIELLO, Chiara e FIN, Camilla. Il consenso informato in ambito medico. Un’indagine antropologica e giuridica . Il Mulino, Bologna 2016. 19 GADAMER, Hans-Georg. Über die Verborgenheit der Gesundheit . Suhrkamp Verlag, Frankfurt am Main 1993, p. 135 ff. 20 For a comparative analysis, see KOCH, Bernhard A. (ed.). Medical Liability in Europe. A Comparison of Selected Jurisdictions . De Gruyter, Berlin/Boston 2011. In the most recent Italian legal scholarship, see CACACE, Simona. Autodeterminazione in salute . Giappichelli, Torino 2017; CILENTO, Antonio. Oltre il consenso informato. Il dovere di informare nella relazione medico-paziente . Edizioni Scientifiche Italiane, Napoli 2014; SALVATORE, Barbara. Informazione e consenso nell’alleanza terapeutica. Edizioni Scientifiche Italiane, Napoli 2012. For a comparison with Czech health law, see ŠUSTEK, Petr, HOLČAPEK , Tomáš . Zdravotnické právo . Wolters Kluwer, Praha, 2016. 21 The patient’s rights are protected by both deontological rules and by arts 2, 13 and 32, para 2, Const. The patient’s right to self-determination is also established in the Oviedo Convention and in art 3, no. 2, of the Charter of Fundamental Rights of the European Union, entitled “Right to the integrity of the person”, according to which « In the fields of medicine and biology, the following must be respected in particular: the free and informed consent of the person concerned, according to the procedures laid down by law […]». See, in a comparative perspective, ŠUSTEK, Petr. Two Decades of the Convention on Biomedicine: Has it Been Any Good?. CYIL 9. (2018), p. 257 ff.; HOLČAPEK, Tomáš. Convention on Biomedicine and Liability Resulting from Deficiency in Informed Consent. CYIL 9. (2018), p. 270 ff. 22 See, for instance, Cass. 20 August 2013, no. 19220, with a commentary by CARBONE, Vincenzo. Obbligo informativo del medico e qualità professionali del paziente. Giustizia civile. (2013), p. 2345; Cass. 11 THE ROLE OF CONSENSUS

349