CYIL vol. 10 (2019)

MASSIMO FOGLIA CYIL 10 ȍ2019Ȏ In other words, patients have the right to information on the consequences and risks of medical treatment (which extends to life-saving treatment), and are free to decide whether to undergo or decline the specific medical treatment proposed (including terminal treatment) 23 . From a legal point of view, the issue is the legal qualification of consent which is constituted by and ends with the services contractually discharged by a healthcare provider. This is “double-sided” consent: consent that is the foundation of the contract between the healthcare provider and the patient, and consent that provides a doctor in charge of performing services on the provider’s behalf with the necessary authorisation to do so 24 . The duty to provide information is one of the services which must be provided with every healthcare contract. Although Law no. 219/2017 saw to the integration of this duty into every contract, it also derives, more generally speaking, from constitutional principles, the Oviedo Convention, the Nice Charter, some specific laws, and finally, the code of ethics. The law imposes on doctors the duty to document consent. This is not only because formalism is a way of ensuring certainty. It is because consent to the doctor/patient relationship is the same – or at least of the same kind (“genus”) – as consent which forms part of any contract in the context of property relations ( rapporti patrimoniali ), although its substance may not be completely superimposed on the substance of a negotiation that, for instance, should lead to a banking contract 25 . The examination of the “construction” of the sub specie iuris relationship, as detailed below, cannot disregard the fundamental fact – that serves here to reveal the reality of the fact – together with its human implications, from which the legal analysis cannot escape in the name of a so-called axiological neutrality of the law. The prevailing opinion seems to clearly distinguish between informed consent (i.e. agreement to treatment provided by healthcare providers, allowing them to intervene from time to time on the person’s body) and negotiated consent as the foundation of the healthcare contract (where present), or consent which forms the basis of the existing legal duty that operates between national health services and any user who relies thereupon. There are, however, grounds for calling this approach into question, since separating the two types of consent appears to constitute an unnecessary overlap: multiple-consent mechanisms can be explained, from a strictly legal point of view, by the successive actions (negotiations) making up the healthcare “framework” agreement. From this vantage point, there do not seem to be any differences, at least in “kind”, with negotiated consent ( consenso negoziale ) referred to in the scheme foreseen in Art 1325 of the December 2013, no. 27751, with a commentary by POSTERARO, Nicola. È risarcibile la lesione del diritto all’autodeterminazione del paziente per consenso invalido a prescindere dal danno biologico conseguente alla prestazione: il medico ha l’obbligo di rappresentare tutti i rischi (anche quelli straordinari) con l’unico limite della loro imprevedibilità. Rivista italiana di medicina legale. (2015), p. 322; Court of Appeal (Genova), 4 January 2018, in www.rivistaresponsabilitamedica.it . 23 See Cass. 16 October 2007, no. 21748 ( supra fn 3). 24 See NANNINI, Ubaldo G. Il consenso al trattamento medico. Presupposti teorici e applicazioni giurisprudenziali in Francia, Germania e Italia. Giuffrè, Milano 1989. 25 ZATTI, Paolo. «Parole tra noi così diverse». Per una ecologia del rapporto terapeutico. Nuova giurisprudenza civile commentata. (2012), p. 148.

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