From the perspective of the protection of individual and collective health, the Constitution regulates the legality of health activity on the body of the person on the distinction between the medical procedure that takes place within a compulsory treatment and health activity that goes from this category rules (art. 32, comma 2, cost.). The rule prescribed by the judicial system for administering system of cares and access to medical treatment, therefore, is based on the “consent” of those concerned: regardless of age, to intervene legitimately on the body, the physician must always obtain the prior consent of the patient or other qualified entities, unless the medical activity does not fall within the mandatory treatment. Over time, the regulatory system has accompanied the parameter of ‘consensus’ of a peculiar qualification: the adequacy of the information. Consent to medical procedure, therefore, became “ informed”: current sources state, it is no longer enough just a simple consensus, but it must be given by the person concerned knowingly, after appropriate medical information. Consensus is defined as informed only if the doctor provides the patient with all information related to treatment, so that the manifestation of the will to be conscious and aware. If the information provided by health care personnel are not adequate, the consent may not be congruent, neither aware nor lawful and give rise to liability. In the present case, the medical responsibility will not have basis in the absence of consent, but in the lack of information. As a matter of fact, violation of obligation to provide information and the provision of incomplete information do not allow the patient to express a free consensus, informed and aware, and therefore constitute a medical default, source of professional liability.

Diritti della persona anziana, tutela della salute e autonomia della volontà

PARENTE, Ferdinando
2013

Abstract

From the perspective of the protection of individual and collective health, the Constitution regulates the legality of health activity on the body of the person on the distinction between the medical procedure that takes place within a compulsory treatment and health activity that goes from this category rules (art. 32, comma 2, cost.). The rule prescribed by the judicial system for administering system of cares and access to medical treatment, therefore, is based on the “consent” of those concerned: regardless of age, to intervene legitimately on the body, the physician must always obtain the prior consent of the patient or other qualified entities, unless the medical activity does not fall within the mandatory treatment. Over time, the regulatory system has accompanied the parameter of ‘consensus’ of a peculiar qualification: the adequacy of the information. Consent to medical procedure, therefore, became “ informed”: current sources state, it is no longer enough just a simple consensus, but it must be given by the person concerned knowingly, after appropriate medical information. Consensus is defined as informed only if the doctor provides the patient with all information related to treatment, so that the manifestation of the will to be conscious and aware. If the information provided by health care personnel are not adequate, the consent may not be congruent, neither aware nor lawful and give rise to liability. In the present case, the medical responsibility will not have basis in the absence of consent, but in the lack of information. As a matter of fact, violation of obligation to provide information and the provision of incomplete information do not allow the patient to express a free consensus, informed and aware, and therefore constitute a medical default, source of professional liability.
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Utilizza questo identificativo per citare o creare un link a questo documento: https://hdl.handle.net/11586/64826
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