SBAILO' C. (2009). TESTING A CONSTITUTIONAL IDENTITY: LIVING WILL LAW IN ITALY. MEDITERRANEAN JOURNAL OF HUMAN RIGHTS, vol. 1, ISSN:

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1 SBAILO' C. (2009). TESTING A CONSTITUTIONAL IDENTITY: LIVING WILL LAW IN ITALY. MEDITERRANEAN JOURNAL OF HUMAN RIGHTS, vol. 1, ISSN: VERSIONE PROVVISORIA / NOT DEFINITIVE DRAFT CIRO SBAILO TESTING A CONSTITUTIONAL IDENTITY: LIVING WILL LAW IN ITALY Italian legislators (Italian legislative body) are facing the living will question from two different points of view. First of all they consider the bio-ethical approach, which can be summarized in three main questions: a) Is it lawful to submit a patient in the terminal phase to a medical treatment aiming at prolonging artificially his\her life, notwithstanding his\her refusal to allow this? b) If the patient is unconscious is it possible to reconstruct his\her will when there is no evidence of his\her instructions concerning this specific matter? c) Which is the limit between a medical treatment and an artificial feeding for a patient who is unconscious? The second aspect of the question deals with the legal (judicial) procedure. Can jurisprudence (law) fill the gap of the legislator? It could be useful to reconstruct the dramatic event this discussion on the living will question originates from. On January 18 th 1992, after a car accident, Eluana Englaro, a 20 year old girl, fell in a persistent vegetative state. Admitted in a hospital, in Lecco, she was fed artificially through a small probe implanted in her nose, and hydrated. Even though unconscious, because of the necrosis of her cerebellar cortex, her breathing was spontaneous. Beppino Englaro, Eluana s father, asked the Court of Justice of Lecco to interrupt the artificial feeding, obtaining a refusal. Successively Mr Englaro addressed President Ciampi the same request, specifying that, before her car accident, Eluana had declared her refusal to accept living in a vegetative state.

2 In 2003 and in 2006 both the Court of Justice and the Court of Appeal rejected Mr Englaro s request to let Eluana die. With the legal order 82914\2005 the Supreme Court of Cassation admitted that the decision of the Court of Appeal was right, establishing that parents cannot interrupt the artificial feeding of their children as, in this case, it is necessary to appoint a special curator (Civil Cassation, Section 1, legal order no dated April 20 th 2005). In the same sentence it was specified that Mr Englaro s request couldn t be fulfilled as there was no clear evidence of Eluana s will concerning this matter. In 2007 the Supreme Court of Cassation, and then the Court Of Appeal in Milan, decreed that a judge can authorize the interruption of the artificial feeding only under two specific conditions: 1. When the vegetative state of the patient is irreversible 2. When the patient, if conscious, would deny his consent to continue the treatment (Civil Cassation, Section 1,sentence no dated October 16 th 2007). Starting from these premises the Court of Appeal in Milan allowed the interruption of the treatment for an artificial, vital support. In the meantime polemics broke out in the whole country. On the Catholic press the sentence issued by the Court of Appeal of Milan was compared to a death sentence. On July 16 th both the Chamber of Deputies and the Senate asked, through a motion, the intervention of the Constitutional Court against the Supreme Court of Cassation for a clash between judiciary and Parliament. In the motion of the Parliament the statement was that the Court had invaded the legislative field reserved to the Parliament. In particular Parliament harshly criticized the Court. (Constitutional Court, September 17 th 2008, no. 16 and 17 Conflict among State powers, 2008) The Members of Parliament accused the Court of extreme creativeness (being this considered a distinctive feature of the Anglo Saxon Law). The example given by Parliament was the fact that the Court had considered hydration and artificial feeding as medical treatments. According to the members of Parliament the non liquet principle takes into account the mere enforcement of rules with no obligation, for the Court, to fulfill all the requests for obtaining justice. (art. 12, Preliminary Provision to the Civil Code, see R. Bin, Se non sale in cielo, non sarà forse un raglio d asino? A proposito dell ord. 334\2009, Forum dei Quaderni Costituzionali ) In Italy, as well as in Anglo Saxon countries, judges are contributing to fixing and producing law (see R. Ramboli, Il conflitto tra i poteri dello Stato sulla vicenda Englaro: un caso di evidente inammissibilità, Il Foro.it, 2009, I). The Constitutional Court rejected the appeal for lack of objective requirements, stating that the Constitutional Court itself could adopt, in any time, a specific normative on the subject on a balance among the Constitutional goods involved and respecting the judges autonomy (order no. 334\2008 dated October 8 th 2008).

3 After six months the Senate passed a bill (AS 10, XVI) transmitted to the Chambers of Deputies (AC 2350, XVI) titled Disposizioni in materia di alleanza terapeutica, di consenso informato e di dichiarazioni anticipate di trattamento. The bill contains many controversial points. In its first articles it is clearly stated a) the absolute inviolability of fundamental rights (art. 1, c.1); b) to treat man always as an end and never merely as a means to an end (art. 1, c.1 letter b; c) the prohibition to practice euthanasia (art. 1 c.1 letter e with reference to the articles 575, 579 and 580 C.P.) d) the doctor s duty is to treat his\her patients and the patient s right is to be treated holding the respect for his\her dignity. (art. 1, c.1 letter d) ; e) the prohibition to practice overzealous treatment. It was established the principle of informed consensus except when a person is not in full possession of his\her faculties, or in a case of emergency. (ART. 2). As concerns this specific matter we remind the case of a doctor who was not able to save his patient. This notwithstanding, he was not condemned as he had acted in the name of a higher interest (art. 51 Penal Code, see art. 32 and 13 Cost., Court of Rome, Sentence of the Judge for preliminary enquiries no. 2049\07). According to the above mentioned bill the patient cannot refuse artificial feeding and hydration as they are forms of vital support. It is cited the Convention on the Rights of Persons with Disabilities, United Nations, New York, December 13 th, 2006) (see law March 3 rd 2009, no. 18). But, as a matter of fact, this bill is still controversial. According to the article 10 (Right to life) and 25 (Health) of the Convention, a doctor has the duty of feeding and hydrating a patient who is not conscious. As a paradox this means that hydration and artificial feeding must be considered as medical treatments. Furthermore, according to the article 12 (Equal recognition before the law) of the same Convention, a judge has to reconstruct the will of a patient who is in a state of unconsciousness. The National Bioethics Committee expressed its opinion, not unanimously, both in favor of the necessity of feeding and hydrating persons in a vegetative state (feeding and hydration are not considered as medical treatments but as necessary actions from an ethical point of view) and in favor of the necessity of interrupting feeding when a dying patient is no more able to assimilate food. (Presidenza del Consiglio dei Ministri. Comitato Nazionale per la Bioetica L Alimentazione e l idratazione dei pazienti in stato vegetativo permanente plenary session of September 30 th, 2005). On this specific matter it is possible to trace a comparison with foods for newborn babies. Even if they are technically considered as therapy,nowadays they are treated as nourishment (see 77\94\CE and- for what concerns Italy -, D.M. 1\6\1998 NO.518 Regolamento recante forme di attuazione alla Direttiva 94\4\CE). Unfortunately we haven t yet obtained a definitive answer to the whole question. Not even jurisprudence (law) can provide unambiguous solutions. In this connection we remind the Bland case in which the Law Lords found it was useless to provide patients in an irreversible vegetative state with artificial feeding and hydration (AIREDALE NHS trust v. Bland, 1993, 1 All ER 821 (HL) ).

4 On the other hand there is Nancy Cruzon case in which the Court of State of Missouri showed strong uncertainties concerning the decision of interrupting hydration and artificial feeding. (1990, 497 U.S. 261, see C. Bologna, Sentenza in forma di legge? Il caso Englaro e la lezione americana della vicenda Terri Schiavo, Forum di Quaderni Costituzionali, February 25th 2009) 3. As concerns the form and the duration of an anticipated declaration allowing treatment, in the above mentioned bill (art. 4) it is specified that it is not obligatory. The declaration must be dated (ref. Art CC). Furthermore it is necessary to be well informed as concerns the medical aspects and full aware of its content. It lasts 5 years and can be modified at any time. It cannot be applied in case of an emergency or danger of death. Public welfare services at home are granted to patients in a vegetative state (art. 5). The relationship between the doctor and the legal tutor appointed by the patient is unbalanced in favor of the doctor. In fact the doctor s will is prevalent and he can decide the non interruption of the treatment. The legal tutor, whose appointment is not obligatory, must act for the patient s sake and supervise in order to avoid euthanasia or helped suicide and to guarantee the patient the best palliative treatments avoiding overzealous treatment or no treatment (art. 6). The bill seems discouraging the appointment of a legal tutor as a possible omission in his\her behavior (according to the article 40 of the Penal Code, c.2 of article 7) could cause an accusation of helped suicide or homicide of the patient. The bill would encourage the doctor in refusing the interruption of the treatment as he cannot consider directions which can provoke the death of the patient and are in contrast to law and ethics of the medical profession. After a consultation with the legal tutor the doctor considers the directions of the patient in pursuance of the principle of inviolability of human life and protection of health and according to the principles of care, proportionality and prudence (art. 7 c.2). Here we have a reference to jurisprudence which gave a different opinion (see Court of Cassation, I Penal section, July 11 th, 2002). If the legal tutor doesn t share the doctor s opinions as concerns his\her refusal to interrupt the treatment, he or she can apply to a college of physicians composed of a police doctor, an anesthetist and a neurologist. But their opinion is not legally binding. This is, perhaps, the most controversial point of the bill, considering that recent scientific discoveries could legitimate the non fulfillment of the patient s will. For this reason it could be advisable to make the opinion of the college of physicians legally binding. In the treatment of this subject at the Senate it has been suggested to eliminate the words aiming at causing the patient s death, to make the opinion of the college of physicians legally binding (except for their freedom of conscience) and to subordinate the use of palliative treatments to the patient s will. In a following amendment the doctor who decides to not fulfill the advance directive of the patient, considering that it could be in contrast with the development of the most recent scientific discoveries in the field of medical treatments, is asked to make a notice of it in the patient s hospital file. This latter statement seems to comply both with the patient s will and the doctor s freedom of conscience, certainly being consistent with the goal of the bill which aims at discouraging the practice of euthanasia (AS 10, XVI, amendments 7.7 and 6.84 sen.malan.

5 6. According from the general view which emerges from this discussion it seems that, in cases similar to that of Eluana Englaro, doctors should behave differently. But this doesn t take into consideration the peculiarity of this event and could cause dangerous generalizations. In Eluana s case it was possible to practice the artificial feeding. On the contrary there are cases in which patients cannot bear a similar medical treatment. If so artificial feeding could be considered as an act of violence and a breaking of the law (article 32 c. 2 of the Constitution and article 13 Cost. (see Constitutional Court, sentence 471\1990). During the debate the majority parties at the Government seemed to be influenced by the French law (see the intervention of the Minister of Culture, Sandro Bondi, on Europe, dated March 20 th 2009). But French legislators (Code de la santé publique, art. L111-11, see l , art. 10 and 7 ) haven t yet solved the problem, that is to say if consider or not artificial feeding and hydration as medical treatments (see E. Caprino, Francia, l approvazione della legge sulla fin de vie, Forum dei Quaderni Costituzionali) Generally speaking we can assert that French law aims at fulfilling the patient s advance directive making prevalent the opinion of the legal tutor, except for what concerns specific medical questions. In Italy there is the danger to appeal to the judges for similar situations. But this danger is not avoided through the elaboration of the above mentioned bill whose text is not clear enough, full of apodictical sentences the content of which is not always strictly constitutional. (see C. Casonato, Lo schema di testo unificato Calabrò su consenso e dichiarazioni anticipate, Forum di Quaderni Costituzionali, February 27th 2009, even considering that the Constitutional Court in the above mentioned decree is not explicit Equilibrio fra i fondamentali beni costituzionali coinvolti ) In order toh ave further suggestion on this specific matter it could be useful to analyze the law recently approved in Germany (Drittes Gesetz Anderung des Betreuungsrechts, July 31 st 2009 which will come into force from September 1 st 2009). According to this law the patient s advance directive is totally binding but both the legal tutor and the doctor have to evaluate if the actual situation is congruent with that in which the patient had expressed his\her will. If there is difference of opinions it will be the competent Court to make the decision. (see Bundesgerichtsaf, BGH ZB\03, March 17 th 2003). 7. In my opinion in Italy the right to commit suicide will never be admitted, as it happens in the Kingdom of the Netherlands (l. April 12 th 2001) This because of the constitutional culture of our country, shared both by Catholics and non- Catholics. Generally speaking citizens living in democratic countries can refuse ineffective or extreme treatments, choosing to follow the natural course of the events (see French and German jurisprudence. see also The patient self determination Act, dated 1991 in the United States, the lay 41\2002 reguladora de la autonomia del paciente y de derechas y obligaciones en material de informaciòn y documentaciòn clinica as concerns Spain, the Mental Capacity Act of the United Kingdom approved on April 7 th 2005, come into force on October 1 st 2007). This is certainly one of the hardest subject through which we can test the capability of a Nation to accompany social changes (see A. Barbera, Il cammino della laicità, Forum di Quaderni Costituzionali, and Laicità e Diritto, by S. Canestrari, Bonomia University Press, Bologna, 2007).

6 The conclusion is that we can try to apply a principle worked out through centuries made of experience and culture: Discontinuing medical procedures that are burdensome, dangerous, extraordinary, or disproportionate to the expected outcome can be legitimate; it is the refusal of over-zealous treatment. Here one does not will to cause death; one's inability to impede it is merely accepted. The decisions should be made by the patient if he is competent and able or, if not, by those legally entitled to act for the patient, whose reasonable will and legitimate interests must always be respected (Catechism of the Catholic Church, III:2, 5, 2278).