Posted by on Apr 4, 2017 in LEGAL UPDATES

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On the 13th March 2017, the Italian Senate started discussing a proposed new law regarding the introduction of “Testamenti Biologici”, (“Biological Wills”), the equivalent of what are known as “Living Wills” in the UK.

This is a document by which an individual, who is over 18 and who has full mental capacity, expresses their wishes regarding future medical treatment, in circumstances in which they are no longer able to provide their informed consent.

Article 32 of the Italian constitution states that nobody can be made to accept specific medical treatment, if not obliged to by law.  Further, Italian medical professional ethics oblige doctors to take the patient’s wishes into consideration.

At the moment, however, these are simply guidelines, and living wills are not legally binding in Italy.  A Testator might express certain wishes in their will (for example with regard to pain therapy, or artificial nutrition), but it is not guaranteed that all wishes of this kind will be followed by the physicians. It is the doctor’s decision what treatment their patient must follow, with the main aim and obligation to keep that individual alive.

There have been several important cases in Italy, which have famously caused controversy, with calls by some for new legislation to be introduced.  Possibly the most famous case is that of Eluana Lungaro, who had an accident at the age of 21, which left her in a persistent vegetative state for 17 years.  She was kept alive, during this time, with artificial nutrition and hydration.  Her family and friends fiercely advocated for the nutrition to be stopped, claiming that Eluana had specified, prior to her accident, that she would have preferred to die rather than be in such a state.  The 10 year case reached the highest Court in Italy, “La Corte di Cassazione”, who ruled in favour of Eluana’s family, having heard all testimony in this regard.   Nutrition was stopped and Eluana died of dehydration in 2009, amid a flurry of protests by some,  and a call to change the law by others.

Nearly ten years later, a new law related to the introductions of Living Wills has been put forward, which would include the following points:

– No medical treatment could be started or continued, without the express consent of the individual concerned (other than if obliged to by law)- for minors, this consent would have to be given by the parents, and for persons deemed not mentally capable, it would be their legal tutors.  The consent would have to be in written form, by video or in any way by which the individual can communicate to express their wishes;

– the patient would have the right to be informed of all matters relating to his/her health, diagnosis, benefits and alternatives to the treatment proposed, as well as the consequences of refusing treatment;

–  any person over the age of 18 and mentally capable to make such decisions would have the right to refuse treatment, in full or in part, or to interrupt such treatment;

– “DAT- Dichiarazione Anticipata di Trattamenti Sanitari”, otherwise known as the “Testamento Biologico” (Living Will) would be introduced; this would be a document by which a person makes the above decisions in advance, in the event that they are in a situation where they are incapable of communicating said decision or make the informed consent in the future (decisions such as the therapies administered, consent to being kept alive with artificial nutrition/machines, etc.).

Following the recent case of Fabiano Antoniani (DJ Fabiano), who was tetraplegic and blind following a car accident 3 years ago, and who died in an assisted suicide clinic in Switzerland a few weeks ago, there have been calls for the Italian government to make assisted suicide legal in this country.  However, the proposed law above does not include any provisions as to legalising euthanasia or assisted suicide, and there is no suggestion that this is to be even considered by the Senate now, or in the future.

It is unclear whether this controversial new law will be accepted, and, therefore, whether living wills shall  ever be taken into consideration here.  Until such time, it is suggested that an individual express any such wishes in writing (such as including this in a testament); any such wishes, even though not legally binding, can be taken into consideration by the doctors, or as a last resort, used as evidence in a Court of law.

 

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