Questioni di legittimità costituzionale della disciplina in materia di disposizioni anticipate di trattamento contenuta nell’art. 4 della legge n. 219/2017

Di Gianluca Montanari Vergallo -

The article casts doubt on the constitutional legitimacy of art. 4 of Italian law n. 219/2017, which obliges health care professionals to comply with advance health care directives unless: a) the latter are clearly unsuitable or b) they refer to treatments other than those to be performed or c) unpredictable and effective treatments have subsequently been discovered. This rule does not contain any tools to ascertain that the advance directive is informed and that the choice made by the trustee matches that which the patient would have made if he or she had been capable. Consequently, this rule appears to be unconstitutional for the following reasons: a) it unreasonably differentiates the advance refusal compared to the current one; b) it violates the rights to life and self-determination; c) it does not protect the freedom of conscience of health professionals. The article sets forth an interpretation aimed at making this norm compatible with the Constitution.