The outcome of a wide debate, both ethical and juridical, during which the issues of the right to health and the unavailability of the good life have often become tense, the Law of December 22, 2017, entered into force on January 31, 2018. 219 on "Rules on informed consent and advance treatment provisions" which protects the right to life, health, dignity and, above all, self-determination of the person. The Legislator, in fact, referring to the fundamental principles of the Constitution (articles 2, 13 and 32) and of the Charter of Fundamental Rights of the European Union, established that "no medical treatment can be initiated or continued without the free and informed consent of the interested person, except in cases expressly provided for by law ".
The law intervenes to regulate all the profiles of the "care and trust" relationship between doctor and patient: informed consent, duties and responsibilities of the doctor and the health team, therapeutic alliance, care planning, decisions related to the terminal phase of life, relationships between doctor and family members of the patient, decisions on the health of the minor and of people without autonomy, therapeutic obstinacy, pain therapy, early dispositions of treatment (DOT), which are certainly the most innovative part of the law of new coin.
By advance disposition of treatment we mean the manifestation of will of a person who, fearing of losing, due to illness or surgery, the ability to understand and to want, individuals the health treatments and the therapeutic path to which he / she intends to undergo, or to attribute to a person (so-called trustee) the task of making therapeutic decisions on his behalf, for the time when he will not be able to do it autonomously. Article. 4 of the aforementioned law provides, in fact, that "every adult person capable of understanding and wanting, in anticipation of a possible future incapacity to self-determination and after acquiring adequate medical information on the consequences of his choices, can, through the DAT ( advance treatment provisions) to express their wishes regarding health treatments, as well as consent or refusal with respect to diagnostic tests or therapeutic choices and to individual health treatments. It also indicates a person of his trust - called "trustee" - who takes his place and represents it in relations with the doctor and with the health facilities ".
With regard to the effects of the DAT, the legislator seems to have been oriented towards "attenuated binding", leaving the physician significant areas of discretion; indeed, the paragraph 5 of the art. 4 provides that the doctor is required to comply with the provisions in advance, "which may be disregarded, in whole or in part, and in agreement with the trustee, if they appear clearly incongruous, not corresponding to the current clinical situation of the patient, or if the possibility of unpredictable therapies at the time of signing occurs, capable of offering concrete possibilities for improving the conditions of life ".
Paragraph 6 of the aforementioned article states that "the DAT must be drawn up by public deed or by certified private deed or by private deed delivered personally by the settlor to the civil status office of the Municipality of residence of the same settlor, who provides the annotation in the appropriate register, if established, or in the healthcare facilities, when the conditions set out in paragraph 7 "are met and may be modified or revoked at any time using the same form in which they were issued. In cases where reasons of urgency do not allow compliance with the same form, the modification or revocation can be made by verbal declaration or video recording collected by a doctor in the presence of two witnesses; communication via videotape is also permitted in cases where the registrant is not in a position to sign.
Following some interpretative doubts arising regarding the involvement of the Civil Status Office as receiver, the DAT, the Ministry of the Interior, with circular no. 1 of 8 February 2018, provided some initial operational indications on the subject of Biotestamento, clarifying that:
1. the registry office is entitled to receive only the DAT delivered personally by the resident resident in the municipality, bearing his signature.
2. the officer does not take part in the drafting of the provision nor provides information or notices about the content of the same, having to limit himself to verify the conditions of delivery (identity and residence of the deliverer) and to receive it
3. at the time of delivery, the official provides the formal settlor receipt with an indication of the personal data of the same.
4. the law does not regulate the establishment of a new register of marital status so the office, once received the DAT, must simply record an ordered chronological list of the declarations presented and ensure their proper preservation.
Lastly, paragraph 7 of the article is dedicated to the conservation of the anticipated provisions. 4. Regions that adopt the data management system of the individual registered with the National Health Service can regulate the collection of copies of the DAT, including the indication of the trustee, and their inclusion in the database, while leaving the petitioner the freedom to choose whether to give a copy or indicate where they can be found (Regional Register of DAT).