The bill on the living will – approved by the House on April 20 2017 – was approved definitively by the Senate on December 14.

 

The bill, consisting of 8 articles, protects the person’ constitutional right to self-determination, or rather the right to freely choose in relation to acts involving own body and own health and life expectations. This implies that everyone in exercising of own self-determination right is free to choose whether or not to undergo health treatment, without prejudice to the informed consent.   

 

The issue related to the concept of self-determination in the medical field has also been addressed at the supranational level. In this regard, the Oviedo Convention on human rights and biomedicine – in art. 5 – establishes the person’s right to free and informed consent.

 

In our legal system the most recent jurisprudence has defined the right of self-determination “a form of respect for the freedom of the individual and a means for the pursuit of his best interests, which is substantiated not only in the faculty of choosing among different possibilities of medical treatment, but also of possibly rejecting the therapy and deciding to interrupt it, awaited the constitutional principle according to that human has an ethical value in itself which deserve respect at any time of his life” (Cassazione n. 2847/2010).

 

The law calls into question the supposed prevalence of  “life” or “health” compared to other possible interests, leaving the interested party the right to choose which interest protect.

 

Art.1 introduces the patient’s right to informed consent, as expression of a conscious decision regarding the health treatment proposed by doctor. The law defines informed consent as the fundamental act of the trust relationship between doctor and patient and therefore, none medical treatment can be initiated or continued without the free and informed consent of the concerned person. 

 

Is recognized the right of the person to refuse and revoke – at any time – the given consent. The doctor is obliged to respect the expressed patient will to refuse or renounce the medical treatment and, as a result of that, is exempt from medical and civil liability.

 

In compliance with the inviolable human rights, art. 2 introduces the prohibition of therapeutic obstinacy, meaning the attitude of desistence from unnecessary or disproportionate treatments in case of patients with serious diseases. The doctor – in compliance with the duties of medical deontology – must in any case guarantee an appropriate pain therapy to the patient’s medical condition.

 

The most important novelty is contained in the art. 4 concerning the so-called “Advance Provisions of Treatment”, through which any adult person who is capable of thinking and acting, can express own will on health treatment matter as well as express own consent or refuse diagnostic tests or therapeutic choices.

 

This provision introduces therefore the possibility for anyone to choose - in advance of their own future incapacity of self-determinism – own beliefs and preferences regarding the medical treatments. The settlor, in the testamentary deed – jointly to own will – must indicate a trustee who must fulfill – in the manner and at the times specified therein – the testamentary provisions. The appointment acceptance takes place by the signature of A.D.T. or with a later act attached to it.

 

As is well known, every testamentary disposition – in accordance with the principle of favor testament – must be interpreted always seeking the real will of the settlor. With regard to the A.D.T., has been introduced exceptions ex lege to this principle, and therefore, the patient’s medical will can be disregarded if the same appear clearly incongruous or not corresponding to the current clinical condition or there are therapies – discovered after the testamentary deed – capable of offering concrete possibilities for improving living conditions.

 

The Advance Provisions of Treatment must be documented in writing, and are renewable, adjustable and retractable at any time. The written form is not required ad substatiam, as is expressely provided that – in the case of incapable or disabled patients – the Adavance Provisions of Treatment can be expressed through videotaping or electronic devices.

 

The A.D.T. are exempt from the registration obligation, the stamp duty and any kind of tax.

 

In terms of temporal effectiveness, the law applies retroactively to testamentary deeds concerning health treatments, filed at municipality of residence or at notary before its entry in force.