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Italian Constitutional Court - decision n. 282/2002: therapies of proven efficacy and informed consent
19 Giugno 2002

The Constitutional Court declared the unconstitutionality of Marche region law n. 26/2001, challenged by the State for violation of Article 117, paragraph 3 of the Italian Constitution. The law suspends, within the region, the application of electroconvulsive therapy, the practice of prefrontal and transorbital lobotomy and other similar psychosurgical interventions, until the Ministry of Health clearly defines the clinical situations for which these therapies, applied according to specific protocols, are experimentally proven to be effective and not cause temporary or permanent damage to patient health.

Numero
282
Anno
2002

Below are some unofficial translations of quotations from the judgment:

“In the present case, the contested law does not concern performance levels, but rather the appropriateness, in terms of their effectiveness and their possible harmful effects, of therapeutic practices, that is, activities aimed at protecting individual health, and therefore it raises the question of the competence to establish and apply the criteria for determining this appropriateness, distinguishing between what is admitted therapeutic practice and what may be considered an intervention detrimental to the health and personality of patients, as such forbidden. Fundamental human rights are involved, such as the right to be treated and the right to respect the psycho-physical integrity and the personality of the patient in the healthcare activity, but rather than in terms of ‘determining essential levels’, under the profile of the general principles governing therapeutic activity”.

“The new formulation of art. 117, third paragraph [amended by constitutional law n. 3/2001] (…), expresses the intent of a clearer distinction between the regional competence to legislate in these matters and the state competence, limited to the determination of the fundamental principles. However, this does not mean that the principles can only be derived from new state laws expressly aimed at this purpose. Especially in the phase of the transition from the old to the new system of division of competences, the concurrent regional legislation must be carried out in compliance with the fundamental principles resulting from the state legislation already in force”.

“As already mentioned, therapeutic practice arises at the intersection of two fundamental rights of the sick person: the right to be treated effectively, according to the canons of medical science and medical art; and the right to be respected as a person, in particular in his physical and mental integrity. The latter right is expressed by art. 32, second paragraph, second sentence, of the Constitution as an insurmountable limit for health treatments that can be imposed by law as mandatory for the security of public health. These rights and the boundary between them must always be respected, and to safeguard this respect are the ordinary remedies established by law and the supervisory powers of the professional bodies over the observance of professional ethics rules.

(…) Since the practice of medical art is based on scientific and experimental findings, which are constantly evolving, the basic rule in this matter is the autonomy and responsibility of the physician who, always with the consent of the patient, makes professional choices based on the state of available knowledge. The doctor’s autonomy in his professional choices and the obligation to take into account the state of the scientific and experimental evidence, under his own responsibility, thus constitute another point of intersection of the principles of this matter”.                               

Full text of the decision in Italian can be found here.

Derek Van Becelaere, Raffaele Guerini
Pagina pubblicata Mercoledì, 19 Giugno 2002 - Ultima modifica: Lunedì, 02 Settembre 2019
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