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  • Withdrawing Treatment from Incompetent Patients in Italy: The Case of Eluana Englaro
  • Denard Veshi (bio)

1. Introduction

Bioethical debate, with respect to withdrawing treatment from incompetent patients, has increased in the last two decades. This is the result of new medical discoveries that have led to a new interpretation of Article 32 of the Italian Constitution that safeguards the “right to health” as “a fundamental right of the individual and as a collective interest” which can be limited only “under the provisions of the law”. These events have entailed a distinction between a human’s biographical and biological life. Further, death is no longer considered a natural event but a long process of steps involving medical treatment where the definitions of duty of care and quality of life have become ever more ambiguous, contentious and controversial.1 Article 32 of the Italian Constitution recognises the “right to health” that grants patients the right to withhold or withdraw medical treatment. As confirmed by the Italian Constitutional Court (decision 282/2002),2 medical treatment has to protect not only the patient’s health but also his dignity. Furthermore, according to decision 307/1990 of the Italian Constitutional Court,3 this right can only be limited when medical treatment targets not only the health of the single patient, but also that of a certain population. These may be cases of necessary vaccination of a population or of care-giving with respect to cases of HIV. This limitation must be predicted and specified by the Italian national law.

Article 17 of the Italian Medical Ethics Code neglects any kind of assistance during death or euthanasia. In such cases, physicians are liable for homicide of [End Page 402] the consenting person (Article 579 Penal Code; PC) or, in cases where there is an absence of the patient’s request, for intentional homicide (Article 575 PC). However, this Code recognises the patient’s autonomy by rejecting all kinds of futile treatment (Article 16) and by regulating the patient’s consent (Arts. 33–38). The decision is made difficult in practical terms, because there is uncertainty regarding the classification of artificial nutrition and hydration under either basic care or medical treatment. Whilst there is no law regulating this issue, different documents of high importance classify these methods in different ways. Furthermore, according to Article 38 of the Italian Medical Ethics Code, advance directives do not have binding force whilst bioethicists, such as Rodotà4 and Amato,5 fully support such directions.

Debate about withdrawing treatment from incompetent patients grew following the media’s attention on the case of Eluana Englaro. It is clear that the existence of new technologies pushes us to re-examine and re-consider the physician’s duty of care and the patient’s right to health.

2. Withdrawing Treatment from an Incompetent Patient

The complexity of legal and ethical issues concerning withdrawing treatment from an incompetent patient arises from the need to understand the legal status of the person who is in a persistent vegetative state (PVS), the classification of artificial ventilation and hydration, and the need to reconstruct the patient’s will.

The first premise to be clarified is whether a patient in a PVS is considered dead or not. It is well known that the brain is divided in two main parts: the “higher brain”, in particular the cerebral cortex where mental and consciousness activity are realised; and the “lower brain”, which consists of the brainstem responsible for the somatic functions of the organism (even when the brain has lost the capacity to support mental activity). In the case of damage of the cerebral cortex, the patient is in a permanent vegetative state. Here, the brain stem is still in function. Meanwhile, in the case of damage of the brainstem, the patient is described as being in a “locked-in” state. For some neurologists and philosophers, such as McMahan,6 who give high importance to the consciousness, patients in a PVS should be considered dead. Another position is taken by Italian law, as confirmed by the Italian National Bioethics Committee in the document of “The Criteria of Verification of Death”7 of June 2010. Precisely, Article 1 of the Italian law...

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