CYIL vol. 10 (2019)

MASSIMO FOGLIA

CYIL 10 ȍ2019Ȏ

5. Conclusion Italian law defines medical consensus 58 into multiple schemes , reflecting the everyday clinical care, such as the joint planning of treatment ( pianificazione condivisa delle cure ) 59 , in the case of the onset of the effects of a chronic and incapacitating medical condition or one characterised by a relentless evolution with a poor prognosis, or the advance healthcare directives ( disposizioni anticipate di trattamento ) 60 , in anticipation of any legal incapacitation and inability to decide for himself/herself in the future. In all these scenarios, the consensus represents an explicit and insuperable limit of the medical technology. Scientific progress has made it possible to prolong life much beyond the point at which death would naturally occur. Indeed, in order to ensure the right to self-determination, the law 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 » 61 . The paradox of modern medicine is that people are living longer, and yet doing so with more disease 62 . At the same time, it has been noted that medical technology “ has dehumanized the medical environment by promoting technological solutions over human ones, sometimes at the expense of the patients’ desire for meaning ” 63 . By contrast, as detailed above, it is necessary to place the doctor-patient relationship at the heart of the matter by empowering patients’ right to be informed and, accordingly, right to self-determination. To this end, the increasingly central role of medical consensus implies a meaningful conversation between the patient and physician 64 .

58 The concept of informed consent has multiple meanings and draws its ethical justification from several sources. See FADEN, Ruth R. and BEAUCHAMP, Tom L. A History and Theory of Informed Consent , 274, who argue that “informed consent” has two distinct senses or general uses: «In the first sense, an informed consent is a special kind of autonomous authorization by a patient or subject. The second sense of “informed consent” is analyzable in terms of rules governing informed consent in public policy and institutional context». 61 Art. 1, Law no. 219/2017. This in accordance with the principles set out in articles 2, 13 and 32 of the Italian Constitution and articles 1, 2 and 3 of the Charter of Fundamental Rights of the European Union. However, two fundamental rights are enshrined in the informed consent: the right to self-determination and the right to health. See above fn 38. 62 The Economist, A better way to care for the dying , April, 26, 2017. See also JASPERS, Karl. Der Arzt im technischen Zeitalter . Piper, München 1986. 63 HESTER, D. Micah. End-of-Life Care and Pragmatic Decision Making. A Bioethical Perspective . Cambridge University Press, New York 2010, p. 70, who underline the “double-edged sword” of technology. 64 Cf. KATZ, Jay. The Silent World of Doctor and Patient , p. 202. 59 Art. 5, Law no. 219/2017. 60 Art. 4, Law no. 219/2017.

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