CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ IN THE DOCTORǧPATIENT RELATIONSHIP… Italian Civil Code (CC) – where consent to healthcare is rather different in “specie” – because it has some specific features on which it may be opportune to dwell 26 . The therapeutic relationship can arise, first of all, from the contract that is established between the patient and the healthcare structure on which he relies. The nature of the relationship is contractual, given that the healthcare contract is the source of the duties. Looking at the nature of the relationship, nothing seems to change where the patient relies on the national health services with which he establishes a compulsory legal relationship. Indeed, the national health services have specific duties which they discharge via their healthcare professionals 27 . More generally, in relation to the therapeutic contract, we are faced with a will that establishes a (treatment) behaviour from which rights (to treatment) and duties (to treat and accept treatment, amongst others) are born. The duty to accept treatment, post consent, may be qualified as a “submission” of the patient to the healthcare provider’s “power” (i.e. a power-duty) 28 . Technically speaking, the healthcare provider has a personal, yet subordinate, interest and an overwhelming duty to safeguard the interests of the patient in the therapeutic relationship 29 . The differences ascribable to the purely negotiation-based consent are due to the fact that no patrimonial obligations are born between the moment of agreement and the time of treatment (or else, only marginal obligations). Those obligations that arise are only personal in nature, such as is the case when one consents to a marriage or a civil union. However, it is also different from the latter because it does not give rise to a reciprocal (same reciprocal rights and duties) but a one-way (treat/be treated) relationship. Out of this consent, emerges a bond that directly commits the doctor; the duty to inform, duty to treat, duty to be professionally diligent (and associated responsibilities) are all commitments that derive from the consent to therapeutic treatment. However, consent to treatment resembles authorisation or permission, because, fundamentally, it remains characterised by its one-sidedness: the final word belongs to the patient in accordance with the intangible principle of self-determination 30 , even if, as mentioned before, the decision is the result of a therapeutic process which is shared with the healthcare providers. The permission is combined, from the outset, with the other will featuring in an agreement, which constitutes the negotiating basis of the patient/doctor relationship, and ultimately traces the permission for treatment back to the most general category of negotiated consent. Of course, the power exercised by the patient in manifesting consent to treatment does not end in the patient’s here and now. Indeed, framed in terms of an authorisation allowing the doctor or the healthcare structure to act on the patient, permission may, at any moment, 26 Cf. ROMANO, Santi. Headword “Autonomia ”. In Frammenti di un dizionario giuridico. Giuffrè, Milano 1947, p. 14 ff.; BETTI, Emilio. Teoria generale del negozio giuridico . Utet, Torino 1950, p. 40 ff.; RESCIGNO, Pietro. L’autonomia dei privati. Iustitia. (1967), p. 3 ff.; RODOTA’, Stefano. Il diritto di avere diritti . Laterza, Roma- Bari 2012, p. 263. 27 See PERLINGIERI, Pietro. Il diritto alla salute quale diritto della personalità. Rassegna di diritto civile. (1982), p. 1020 ff. 28 Cf. CASTRONOVO, Carlo. Autodeterminazione e diritto privato. Europa e diritto privato . (2010), p. 1053 ff. 29 RESCIGNO, Pietro. Libertà del trattamento sanitario e diligenza del danneggiato. Rivista bimestrale di diritto sanitario . (1962, no. 2), p. 161 ff. 30 For detailed information, see CACACE, Simona. Autodeterminazione in salute . Giappichelli, Torino 2017. THE ROLE OF CONSENSUS

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