Since the “Disposizioni Anticipate di Testamento” (c.d. DAT) – will’s early provisions – are considered as one of the most relevant expression of contractual freedom, “health care” should be balanced with “personal freedom of persons”, especially in respect of the psychophysical integrity. Hence, the informed consent represents the heart of the legal framework provided by L. n. 219/2017, as a primary expression of private autonomy and as bulwark of freedom of persons. The informed consent matter is strictly connected to the relation between doctor and patient, since each medical treatment needs patients informed and preliminary consents. Therefore, the informed consent creates a link between freedom of self-determination of the patient and professional autonomy of the doctor. The consent has to be preceded by a preliminary exhaustive information and has to be free, evident, personal and to be explicitly e specifically from the patient. To this end, it may be useful to underline that the informed consent function is to ensure the medical treatment may be human, empathetic and personal, since usually based on an asymmetric relation and nowadays affected by the technologization process of medicine. Even though a paternalistic approach should not be adopted, it may be endorsed the role of law in saving people from risks, such as red tape of medical treatment or therapeutic abandonment. It may be criticised the exclusion of these provisions’ implementation in case of children protection and in case of people with mental capacity but devoid of the legal one. Notwithstanding the changeability of the informed consent by patient (ex art.1, co. 5, l. 219/2017), the legal framework grants to each individual the right to refuse therapeutic examinations and treatments and the right to withdraw the consent at any time, even if it should interrupt a medical treatment needed to the patient’s survival, yet always in accordance with mandatory rules and with the medical code of conduct. From this perspective, freedom of self-determination and health care are not contrasting concepts, but they may be intended as complementary.

Battelli, E. (2020). Questioni di fine vita e consenso informato. In P.N. SINISI M. (a cura di), Questioni di fine vita (pp. 11-39). Roma : Roma TrE-Press [10.13134/978-88-32136-94-4].

Questioni di fine vita e consenso informato

BATTELLI E.
2020

Abstract

Since the “Disposizioni Anticipate di Testamento” (c.d. DAT) – will’s early provisions – are considered as one of the most relevant expression of contractual freedom, “health care” should be balanced with “personal freedom of persons”, especially in respect of the psychophysical integrity. Hence, the informed consent represents the heart of the legal framework provided by L. n. 219/2017, as a primary expression of private autonomy and as bulwark of freedom of persons. The informed consent matter is strictly connected to the relation between doctor and patient, since each medical treatment needs patients informed and preliminary consents. Therefore, the informed consent creates a link between freedom of self-determination of the patient and professional autonomy of the doctor. The consent has to be preceded by a preliminary exhaustive information and has to be free, evident, personal and to be explicitly e specifically from the patient. To this end, it may be useful to underline that the informed consent function is to ensure the medical treatment may be human, empathetic and personal, since usually based on an asymmetric relation and nowadays affected by the technologization process of medicine. Even though a paternalistic approach should not be adopted, it may be endorsed the role of law in saving people from risks, such as red tape of medical treatment or therapeutic abandonment. It may be criticised the exclusion of these provisions’ implementation in case of children protection and in case of people with mental capacity but devoid of the legal one. Notwithstanding the changeability of the informed consent by patient (ex art.1, co. 5, l. 219/2017), the legal framework grants to each individual the right to refuse therapeutic examinations and treatments and the right to withdraw the consent at any time, even if it should interrupt a medical treatment needed to the patient’s survival, yet always in accordance with mandatory rules and with the medical code of conduct. From this perspective, freedom of self-determination and health care are not contrasting concepts, but they may be intended as complementary.
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Battelli, E. (2020). Questioni di fine vita e consenso informato. In P.N. SINISI M. (a cura di), Questioni di fine vita (pp. 11-39). Roma : Roma TrE-Press [10.13134/978-88-32136-94-4].
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Utilizza questo identificativo per citare o creare un link a questo documento: http://hdl.handle.net/11590/371674
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