Biomedical Science and Research Journals | Assisted Suicide in Italy: Constitutional right or wishful Thinking?
Assisted Suicide in Italy: Constitutional right or wishful Thinking?
Opinion
Italy could soon join the group of states that, under certain
conditions, allow assisted suicide.
The Constitutional Court, in fact, has set for next September
24th the hearing for officially dealing with the constitutional
legitimacy of the article of the criminal code that prohibits, in
absolute terms, any activity of abetting suicide. However, already
in a previous hearing, the Court anticipated that this prohibition
is unconstitutional (order no. 207, October 24th, 2018). The case
came before the Constitutional Court following the indictment of
Mr Marco Cappato for having helped Mr Fabiano Antoniani (known
as DJ Fabo) commit suicide.
DJ Fabo was rendered blind and quadriplegic by a car accident
in 2014. He could breathe autonomously only for short periods and
was therefore mechanically ventilated. He was fed artificially and,
quoting the Court itself, he “suffered particularly intense physical
pain caused by daily muscle spasm and cramps.” DJ Fabo could have
asked for the withdrawal of mechanical ventilation or artificial
hydration and nutrition (in Italy, the right to refuse medical
treatment is formally recognized by law n. 219/2017). Due to his
particular condition, however, DJ Fabo would have spent a few days
or even weeks before dying of suffocation or dehydration. Faced
with this prospect, which DJ Fabo considered contrary to his dignity
and a cause of suffering for himself and his loved ones, he decided
to commit suicide. Because of his paralysis, he asked Mr Cappato
(the leader of an association campaigning for legal euthanasia)
to take him to the Swiss clinic Dignitas, in order to be assisted in
suicide (a practice permitted there).
Returning from Switzerland, Mr Cappato was indicted for
abetting suicide, a conduct that in Italy is punished by the criminal
code (Art. 580) with a penalty of up to 12 years in prison. The
Constitutional Court, asked to establish whether this prohibition
is contrary to the Constitution, set the hearing for the official
discussion of the case on September 24, 2019, already indicating,
in the preliminary October 2018 hearing, three reasons for the
constitutional illegitimacy of the unconditional ban on assisting
suicide. The three reasons revolve around
a) the need to save seriously ill persons from suffering,
b) the principle of non-discrimination against some patients,
c) the respect for self-determination of adults and competent
persons.
The Court of Rome, in the first place, recognized that preventing
DJ Fabo from being assisted in suicide forced him to withdraw the
mechanical ventilation or the artificial hydration and nutrition.
In this way, however, he was forced to “undergo a slower process,
in a scenario that does not correspond to the patient’s vision of
a dignified death and which is marked by pain and suffering for
people close to the patient.” Secondly, the Constitutional Court
acknowledged that life is an asset that the State must protect.
However, given that every patient has the right to refuse lifesaving
and life-sustaining treatments, thus resulting in death, the judges
wondered why the will of those who ask for assisted suicide should
not be respected. If “the primary importance of the value of life
does not rule out the duty to respect the patient’s decision to end
his or her life by means of suspending healthcare treatments there
is no reason for the same value to become an absolute obstacle,
supported by criminal liability, to accepting the patient’s request
for assistance in avoiding the slower decline – perceived as running
contrary to their idea of a dignified death – which results from the
suspension of life support devices”.
Thirdly, the Court underlined the right of seriously ill
people
to decide about ending their life in a dignified way, unwilling to
claim that the illness-driven vulnerability produces an inability for
self-determination. Referring to the principle of equality, the Court
wrote that “if people kept alive by artificial life support treatments
are considered under the system to be capable, under certain
conditions, to decide to bring an end to their lives by suspending
this treatment, there is no clear reason why the same person should
instead be considered to be in need of unyielding and indiscriminate
protection against their own will when it comes to the decision to
end their lives with the help of others, when they consider this
option to be more dignified than the aforementioned suspension of
treatment”. This kind of reasoning is not new in comparative law.
Similar motives are already found, for instance, in a 1997 Colombian
Constitutional Court ruling (C-239/1997). And the Supreme Court
of Canada, in Carter v. Canada (2015 SCC 5), used similar reasons to
hold the prohibition of assisted suicide as contrary to the Canadian
Charter of Rights and Freedoms.
Borrowing a model used by the Canadian Court itself,
furthermore, the Italian Constitutional Court made a rare use of its
procedural powers. For the very first time, it suspended the hearing
and postponed the final judgement for one year (to next September)
in order to give lawmakers time to enact a comprehensive law. As
a result of the Italian ruling, however, three problems emerge. The
first one concerns the Parliament, which, despite having held a
few hearings, has not yet begun a thorough and deep examination
of the subject. The first risk is therefore that, without a law, the
Constitutional Court, at the next September hearing, will have to
shape a regulation, through its decision, to a complex and ethically
sensitive topic such as assisted suicide – a topic that should instead
receive proper attention by Parliament. The second problem
concerns the conditions that the Court has set in order to obtain
assistance for suicide. In addition to the three requirements
common to the jurisdictions allowing assisting suicide (the ability
to make a free and informed decision; an incurable and serious
disease; physical or psychological intolerable suffering) the Italian
judges added a fourth condition: the presence of a life support
treatment. This requirement is problematic as many patients (such
as Glorya Taylor, for instance, plaintiff in Carter v. Canada) ask for an
aid in their suicide before being treated with mechanical ventilation
or artificial nutrition and hydration – and sometimes, precisely
because they do not want this kind of life-sustaining treatments.
Forcing them to have a tracheostomy or ANH only for the
purpose of accessing suicide assistance seems highly unreasonable.
The third problem deals with the Hippocratic principle ‘First do
not harm’. In fact, the Italian code of medical ethics, like many
others, provides for the express prohibition of performing “acts
aimed at causing the death of the patient”. In the absence of a
(so far improbable) amendment of the code, therefore, from next
September onwards, a patient will be entitled to the constitutional
right to be assisted in suicide, but no doctor will be able to aid him,
because of the deontological ban. It is good news that the Italian
Constitutional Court has already anticipated, and will soon officially
declare, that competent, sick and suffering people who make a free
and informed decision about their suicide are entitled to thirdparty
assistance. In the complexity of the legal system, however,
this right is likely to remain, at least for a while, wishful thinking.
Comments
Post a Comment