Il testamento biologico: tra normativa vigente e prospettive di riforma

Law no. 219/2017, containing “Rules on informed consent and advance treatment provisions”, represents for Italy an important conquest of civilization on a highly debated and deeply felt topic both in the Italian, international and European social context. L. n. 219/2017 has represented the opportunity for the Italian legislator to adapt the legislative provisions to the increasingly pressing social demands of enhancing the autonomy of the individual and regulating the theme of decisions in the health sector. However, in many respects, the new legislation has disappointed the expectations of most: in fact, there are too many omissions and many inadequate definitions that lead us to believe that the measure does not live up to the efforts made to reach its approval. Well, this thesis path aims to highlight the lights and shadows of the Italian legislation and to envisage reform hypotheses, by comparing the Italian legislation with the regulations in force in other countries, with a view to progressive harmonization with the European context. Preliminary, the thesis retraces the heated debate that prepared the approval of Law no. 219/2017, focusing attention on the constitutional principles involved and the issues that have come under tension, so as to clarify how the legislation has reached a compromise between the multiple interests at stake. Then it’s analyzed the Italian court cases that concerned the matter of the end of a life, reconstruct the jurisprudential guidelines prior to the approval of the law identifying the most discussed aspects, in order to verify how the law has resolved the problems detected. After analyzing the regulatory text and reconstructing the DAT model and the trustee's office, as outlined by the Law, it’s detected practical and application problems that undermine the effectiveness of the rights recognized by the Law. With regard to DAT, however, the degree of binding nature of DAT is doubtful for the doctor; the question of the reception of the DAT by a notary and not by a doctor whose intervention could have minimized the hypotheses of their ineffectiveness appears questionable. In addiction, the Law, in regulating the appointment of the trustee, did not clarify the extent of its powers and by providing for the appointment of a trustee as only a possible element, it lost an opportunity to strengthen the executive phase of the DAT. Attention is also focused on the uncertain scope of operation of the prohibition of therapeutic obstinacy; on the patient's right to discontinue treatments already started and on the failure to foresee the doctor's right to object, on such request, to conscientious objection; on the renunciation of vital treatments (artificial nutrition and hydration) and on the possibility of inferring from the norm that provides for it, an embryonic legal regulation of the phenomenon of euthanasia, of which, however, no mention is made in the provision.