living wills: legal aspects and bioethical
To the first time in Italy, 5 November 2008, the Court of Modena has issued a decree on appointment of administrator support in favor of a person if that, in future, is incapable of discernment. The support administrator will be responsible for giving the necessary consent to medical treatment. This will be given an opportunity to have the same legal effect as a "living will" even in the absence of specific legislation.
The living will, or to be more specific in the terms "forward declaration of treatment" or "living will" nelo Anglo-Saxon world is the expression of will by a person (the testator), provided conditions of mental clarity, on the therapies that will or will not accept in the event that should be in a position of inability to express their right to consent or not consent to the proposed treatment (informed consent) for traumatic brain injury or disease, or irreversible disabling diseases that make it necessary to treatments with permanent artificial machines or systems that prevent a normal social life.
The desire to pass on the fate of the person of first degree relatives or legal representatives if this person is no longer in a position to discernment for biological reasons.
not yet exist in Italy a specific law on living wills, the formalization for an Italian citizen of his expression of will concerning medical treatments that want to accept or reject may vary from case to case, because the testator writes what he thinks at that time without a specific format, often referring to topics as diverse as organ donation, cremation, pain therapy, artificial nutrition and aggressive treatment, and not all his will could be legally acceptable and bioethical considerations.
Article 32 of the Italian Constitution provides that "no one can be forced to a specific medical treatment unless required by law" and in 2001, Italy has ratified the Convention on Human Rights and Biomedicine (L. March 28, 2001, n.145) of Oviedo in 1997, which states that "the previously expressed wishes about medical intervention by a patient who, at surgery, is unable to express His will be taken into consideration. " The Code of Medical Ethics, in adherence to the Oviedo Convention, states that physicians should take account of previous manifestations of the same desire.
is important to note that despite the Law 145 of 2001 has authorized the President to ratify the Convention, however, the instrument of ratification has not yet been deposited with the Secretary General of the Council of Europe have not been legislative decrees issued under the law to the adaptation of the Italian legal principles and norms of the Constitution. For this reason Italy is not part of the Oviedo Convention.
The issue of living wills, sees different positions between currents of thought a secular, radical (going so far as to want to discuss euthanasia) and strong positions in defense of life founded on Catholic principles. With regard to euthanasia the National Bioethics Committee has made clear in 2003 with a document of recommendations, which states that an advance directive may not contain information "in contradiction with the positive law, the standards of good clinical practice and the medical ethics or who seek to impose an active medical practice in his knowledge and belief unacceptable "and that" the patient can not be empowered to request and obtain assistance in favor of euthanasia. "
The document also says that NBC's "physicians should not only consider advance directives written on a sheet signed by the person, in writing, but also justify actions that violate this will."
The "Case Englaro" The story of
Eluana has fueled a debate in Italy, the media first, then political institutions, on issues related to end of life issues. A public opinion, mainly close to the Church Catholic policy and area of \u200b\u200bthe center-right, has expressed opposition to the interruption of artificial nutrition (via nasogastric tube), which is considered equivalent to euthanasia. Another part of the country, mostly secular area, said they were favorable to the will of the reconstructed directly affected in the absence of a formal living will.
One of the main points of divergence in the debate concerned the withdrawal of nutrition and hydration to the woman, or if treated as a medical treatment, therapy, and then, or like a basic life support, and if their possible suspension could be made by third parties in the absence of diretta ed esplicita volontà del paziente.
Nell'ipotesi in cui la nutrizione artificiale venga considerata una terapia, la sospensione dell'alimentazione e della idratazione alla Englaro (configurabili anche come accanimento terapeutico), troverebbe riscontro alla sua applicabilità nell'articolo 32 della Costituzione Italiana e nel Codice di Deontologia Medica, dopo un ragionevole accertamento della originaria volontà della donna. Tale orientamento è quello che ha condotto la Corte d'Appello ad autorizzare la sospensione del trattamento.
Viceversa, considerando l'alimentazione e la nutrizione alla stregua di un sostentamento vitale, la sospensione di tale pratica si configurerebbe come forma di eutanasia, poiché il paziente that they were deprived not die for the direct consequences of the disease that affects, as is the case for switching to a cure, but for the omission of a form of support.
At the international level, in terms of science and bioethics, the prevailing interpretations are to regard the forced nutrition and hydration, even for people in persistent vegetative state, such as free medical treatment refused by the patient or his legal representative while in Italy the National Bioethics Committee has expressed (in 2005) in a different way. The Code of Medical Ethics, regarding the suspension of food, says that "if the person is aware of the possible consequences of its decision, the physician should not take action or cooperate in constraining operations of constraint of artificial feeding, but must continue to assist. "
Regarding the decision on suspension of treatment by others, the Code of Medical Ethics, Article 34 states that the doctor, in the absence of an explicit expression of the will of the patient, it will still take account of previous events will by itself, adherence to the European Convention on Bioethics 1997, ratified by the Italian Parliament.
The political debate in Italy on the living will, though in a cross-disciplinary reviews, focused too, as a result the story of Eluana on the issue of artificial nutrition and personal choice or a third party to terminate such treatment. Orientation of the parliamentary majority that in the law under discussion on advance directives for treatment, excludes the possibility of applying any practice of euthanasia, consider hydration and nutrition as a life support was offset by the orientation of the forces of Opposition considers that the treatment and as such come within the patient's self-determination that the law should allow.
bioethical issues in recent years many scholars have shown that in an era where the dominant idea is to prolong youth and life in a state of pleasure and well-being, sickness, old age, but above all the pain and death are a source of horror because they appear as full of experiences only depriving and negative meanings. So there is anthropologically and culturally in our time, an inability to accept the biological limit of human life and existence, which makes it particularly difficult task of making as much as possible the peaceful end of life. In this sense, must be framed the debate that is developing between doctors and philosophers on the question of euthanasia and that is dividing into two "sides" in opposing public opinion as demonstrated controversy unleashed by the deafening as a result of the so-called "Englaro" and, before that, "Welby case."
In an anthropological perspective the model representation of death in our society is radically opposed to any previous model. In pre-capitalist cultures the presence of death is central. In the peasant culture, as in non-Western cultures, life and death are perceived, rather, as different forms of the same human condition. The two terms interpenetrate in reality, as in symbols. Even as a child was somehow brought up the idea of \u200b\u200bdeath: death has its places, its signs, its ceremonies. In this type of society the "good death" is death considered "natural" old age, in his own bed, surrounded by relatives, having "put order" in all its worldly things. In pre-capitalist culture of death, when it is "good death" does not fear what they fear is rather the "bad death" has always been attributed to unnatural causes, external to the will, which alter the course of things right, time and the right place to die.
The history of the representation of death in Western industrial societies is, however, the progressive development and strengthening of the opposite pattern. Without going into details, is the story of progressive reduction in the space of presence of death. Our society lives among the many this contradiction is not the kind of company that produces more death "unnatural" for speed, short-lived joy, for violence, but at the same time, the company rejects the idea that most of death, which he is most terrified and obsessed. The dominant productivist ideal is to live as if death would never come.
It 's interesting, for example, note that in France in the last decade, the use of making a will has declined by about 100%. This separation of life from death, and this denial of death, accompanying the whole story of the development of society industry. Death is progressively confined and removed both at the individual level, at the social level. At the individual level several studies have largely shown that psychoanalysis today are refined and multiplied by the removal mechanisms of the idea of \u200b\u200bour own death.
The two models of cultural representation of death seem in some ways opposites. The good death, the death that most today would like, it's probably just the "bad death" of companies that have preceded ours: a sudden death, unexpected, for which there can be neither a place nor a time to suit. E 'in this cultural context of the rejection of the idea of \u200b\u200bdeath that is the problem of euthanasia, and in fact only in this context, the problem could unfold completely. Rather, the actuality of the problem of euthanasia seems manufactured from two factors: firstly, the extent of the consumerist culture, the other from medical advances in recent years.
These two factors can and indeed often come into conflict with one another. The same prolongation of human life, the percentage increase in the elderly population, is the most tenuous of this contrast, the possibility to extend for long, expensive periods, the terminal phase of fatal illness, it is the most extreme form. From a production point of view in both cases it is a dispersion of efforts. Not we certainly crush the economic and productive reasons supporters of euthanasia. As we have seen, these reasons are much more complex and complicated, we just want to emphasize that this is a case in which the development of science will be forced to deal with the environment of values \u200b\u200bthat more or less directly produced it. It 's easy to assume that in the near future will multiply the number of cases where medicine will be able to postpone the final moment of terminally ill patients and these could then be a real economic problem, much more than it is today. Then it will make a choice and will be mainly a choice of values.
One can hope that these values \u200b\u200bin all cases preserve the dignity and human freedom itself. The choices you make will, in fact, an expression of the various possible ways of understanding power: that of the physician towards the patient, such as that of society in respect of the individual and the citizen of the politician.
The reasons of each other's
In some ways, the issue of euthanasia, passive, opinions are less distant than it seems: we agree in rejecting the so-called "therapeutic obstinacy" in refusing, that is, the artificial continued life of the patient decerebration irreversibly, we agree in opinion, which was formerly of Pius XII, on the legality to give the patient the approach of death narcotic drugs, although it is expected that the use of such drugs shorten life.
Concerning the claims of the Vatican certainly does reflect the choice of Pope John Paul II who, according to authoritative witnesses refused to prolong his agony by refusing an aggressive treatment with those who are considered to be his last words: "Let me return to the Father's house. "The views
instead they become more and more divergent when discussing whether to regulate by law, this form also restricted to passive euthanasia, on the prospect of extending his eligibility, albeit for understandable reasons of mercy to the terminally ill; active euthanasia. But we report briefly the reasons for and against the rules for passive euthanasia law, as they emerged from the most representative work of the current debate. We recall that the term "passive euthanasia", or "omission" means the removal of the sick, or the acceleration of the death of the sick, now considered inevitable and imminent (terminal phase), according to the instructions of a large series, through omission, or failure of therapeutic interventions acts to prolong life. "Active euthanasia" implies, rather, an act deliberately aimed to shorten or end the life of the patient for to die, or who is under the particular conditions of physical suffering.
The main arguments in favor of a scheme for passive euthanasia law are:
· The passive euthanasia is a compassionate practice now widespread, its regulations deprive the whim of the doctor, or relatives of the patient .
· The regulation of euthanasia, the doctor passes freely from illegality of an act most commonly for admission of the doctors themselves, than you might think.
· A clear legislation on euthanasia would allow the judiciary to operate on a legal basis for safer and more homogeneous.
· Everyone has the right to decide on his own death and to die with dignity.
• The cost of the terminally ill were affecting the health facility, draining resources that could be converted to sick curable.
is the possibility to "control" the death of terminally ill patients would increase the availability of organs for transplantation.
· The main arguments against the scheme for passive euthanasia law are:
· A passive euthanasia would result in about an epidemic of "good death", which would be impossible to control the extension.
· The health care facility, already in itself inadequate, they would be raised by a commitment to extend the maximize the life of the patient, the risk of a therapeutic mass absenteeism.
• If it is to stop the artificial prolongation of life in extreme pain there is no need for a law: that is widespread and accepted practice of medicine by morality. Passive euthanasia legislation actually conceals the attempt, or at least the risk, an extension of this practice up to and beyond the borders of active euthanasia.
• Who can decide whether to "euthanasia" the sick man? If it is the patient himself to decide the necessary clarity of mind is clearly not a case of applicability of euthanasia, but to "suicide." If the decision is relatives, how to ensure that this decision does not conceal other interests? If it must be the doctor to decide, how to avoid mistakes, and behave differently, even in this case, any interest other than the patient?
· E 'shown that the therapeutic trials and efforts to give marginal relief to the sick are often allowed to advance scientific research.
· The new therapies and resuscitation in general developments, even in the short term, treatment of pharmacology, make it difficult when did the definition of terminally ill patients.
We specifically left out of this review of reasons for and against the arguments of a moral and religious. On this level the two different positions may be summarized as follows: first, the sanctity of human life committed to full compliance with its terminals and even in its most difficult moments, and second, it is the right man to die with "dignity," do not offer the show to get rid of her moral and physical. In fact, as we have said, the line divides the non-Catholic world and the secular: the secular world is further divided and doubtful in it, and even among Catholics can be found more or less nuanced positions. The reason
moral of the two camps of opinion is basically the same: to preserve the dignity of human life. Nor, on the other hand, it calls into question the legitimacy of various anthropological foundations of this "dignity." What the world criticizes the Catholic lay opinion is quite a tendency to slip from a secular vision of a consumerist view of life and man. For its part, the secular world sees the positions of the Catholic world, the danger to pass from the defense of life to an exaltation of the pain itself, as the last testimony.
The role of medical law and ethics among
The question on the legality of euthanasia is investing heavily to the medical world as evidenced by what is happening overseas. Towards the end of this month, in fact, the U.S. Supreme Court must rule on the constitutionality of four laws promulgated by many states that prohibit doctors to put in the condition of terminally ill patients commit suicide. In the case of a positive decision the rule will extend to 14 states comprising more than half the U.S. population and it is likely that the mechanism will cover the entire country. This means that doctors will no longer be prosecuted as the famous Dr. Death (Jack Kevorkian), which since 1990 has practiced 44 assisted suicides being acquitted three times by juries in states' prohibitions ". The official representatives of the medical profession are opposed, but the majority of doctors or at least more than half are in favor with the three quarters of the population. Advocates of legalization have a number of topics including: The priority of the autonomous choices by the patient, the priorities it has given rise to the introduction of informed consent. A percentage of deaths and suffering is substantial: if today the pain relief therapies have made little progress, there are other symptoms such as vomiting, breathlessness, and extreme weakness against which you do not have adequate weapons. To say nothing of incontinence and other events that offend the dignity of the dying. There are also differences between the interruption of treatment for intensive resuscitation express wish of the patient because the doctor's role is limited steps to let the disease take its course and "activity" of health care that is even with the consent or a family member, directly determine the death or provide the patient / family with the means and instructions to do so.
But advocates of assisted suicide challenge this distinction largely centered only on the role of the physician. On the contrary, while in assisted suicide the patient is conscious and active, when interrupt the mechanisms that keep it alive, however, is almost always passive. Also can not miss abuses, abuses by family members concerned to inheritance. One last point. It may in fact lead to a factor: "major depression" of the patient, the doctor could cure instead of helping suicidal intent, but the clinical condition general should allow differentiation.
course in affirming the legality of assisted suicide could never follow a sort of moral obligation for the doctor, because obviously conscientious objection for those who still considers the essential principle of the art health care to bring life and not death. Rather, the debate has drawn attention to shortcomings and barriers to terminal care of a socio-cultural and economic life that exclude many patients from being able to take advantage of palliative care.
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