CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ IN THE DOCTORǧPATIENT RELATIONSHIP… enhances therapeutic undertakings. The ability to speak sincerely with those who are about to die should be a part of modern medicine, considered on the same footing as the ability to prescribe medications and fix broken bones. The idea of informed consent, after all, is that medical decisions are to be made in a collaborative manner between patient and physician, which implies that «the physician must be prepared to engage in – indeed to initiate – a discussion with the patient about the available therapeutic options and to provide relevant information on them» 37 . It goes without saying that the context of the therapeutic relationship is not superimposable on the impersonal one, pertaining to the patrimonial negotiating relationship. However, even if the former is carried out in a relational decision-making context, this does not appear to be able to exclude – from an exquisitely formal point of view – the subsistence of a type of consent that operates as a foundation for the legal negotiations, although accompanied by features that are specific to the context of the therapeutic relationship. This does not mean that the principle of self-determination ( autodeterminazione ) over one’s body is conceptually very different from consent given in the context of economic transactions. Indeed, the concept of “self-ownership” emerged in the context of patrimonial relationships, where the term self-determination appears for the first time – when discussing “private autonomy” ( autonomia privata ) in the context of property and economic transactions – as a general way of “self-regulating those private interests of several interested parties”. In regard to patrimonial relationships, the practical problem of private autonomy is linked to the requirement for goods to circulate and is limited to the procurement of goods and services in a market context, even if it imputable to the self-ownership of individuals. On the other hand, the right to self-determination over one’s life and body has nothing to do with the area of economic transactions. Patient rights, specifically with regards to the principle of self-determination in a treatment setting and consent to medical treatment, can be considered to belong to a category pertaining to “new” areas of private autonomy. Lawmakers initially had to deal with the absence of rules on informed consent. Over the years, they have fine-tuned the line of thinking. Recently, the legal basis for the fundamental right to self-ownership was pinpointed in judgment no. 438/2008, handed down by the Constitutional Court. The latter stated that “the fact that the basis for informed consent is found in articles 2, 13 and 32 of the Constitution emphasizes its function as a synthesis of two fundamental human rights: the right to self-ownership and the right to health, in so far as – although it is true that each individual has the right to receive treatment – he also has the right to receive appropriate information regarding the nature and potential developments pertaining to the course of treatment to which he may be subjected, as well as any potential alternative treatments. This information must be as exhaustive as possible, precisely in order to guarantee the patient’s free and conscious choice and, therefore, safeguard his personal identify, in accordance with article 32, second paragraph, of the Constitution” 38 . 37 Berg et al., Informed consent , 11. See also KLEINMAN, Arthur. What Really Matters. Living a Moral Life Amidst Uncertainty and Danger . Oxford University Press, Oxford 2006. 38 Constitutional Court ( Corte cost .), 23 December 2008, no. 438, Foro italiano (2009): 1328. See also Corte cost. 30 July 2009, no. 253, Foro italiano (2009): 2889; Corte cost. 22 October 1990, no. 471, with a commentary by ROMBOLI, Roberto. I limiti alla libertà di disporre del proprio corpo nel suo aspetto attivo ed in quello passivo. Foro italiano. (1991), p. 14; Corte cost. 24 July 2000, no. 332, Foro italiano (2000): 2739; Corte cost. 26 June 2002, no. 282, Foro italiano (2003): 394. THE ROLE OF CONSENSUS

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