Support administration and health protection
The relationship between support administration and care for the
person is confirmed in a number of court rulings which recognise the
effectiveness of the mechanism for the representation of individuals
also in the sphere of decision-making related to health care,4-12 grounded
in proper respect for the beneficiary:13 in such cases empowerment
of the support administrator to express consent to health care constitutes
an instrument for the care or rather for the safeguard of the
health of an individual incapable of taking decisions regarding his own
state of health.
The relationship between support administration and care for the
person is further confirmed by a ruling by the Supreme Court which in
fact reaffirmed that the power to care for a disabled person shall likewise
be exercised by the person who has been appointed as support
administrator, as the appointment must contain an indication of the
acts that the administrator is empowered to perform in order to protect
the interests – including the personal interests – of the beneficiary.14
Such powers may not be exercised – in accordance with the rationale
of the provision itself – if not to protect the beneficiary, while at the
same time acknowledging this person’s own wishes: the intention of
the legislator is specifically to safeguard, with the least possible limitation
of their ability to act, persons who are wholly or partially deprived
of their autonomy in carrying out their daily activities, through interventions
providing temporary or permanent support.
Article 410 of the Civil Code (Duties of a support administrator)
states that, in the performance of his duties, a support administrator
must take into account the needs and wishes of the beneficiary and
must promptly notify the beneficiary with regard to the acts to be performed.
Thus, article 407, para. 2 (Proceedings) of the Civil Code states that
the probate judge must personally consult the individual to whom the
proceedings refer, where necessary, in the place in which the individual
is to be found, and must take his needs and demands into account,
in line with the best interests and needs of the individual.
Even the Convention for the Protection of Human Rights and Dignity
of the Human Being with regard to the Application of Biology and
Medicine: Convention on Human Rights and Biomedicine of the Council
of Europe states in article 6, para. 3 (Protection of persons not able to
consent) that ...where, according to law, an adult does not have the
capacity to consent to an intervention because of a mental disability, a
disease or for similar reasons, the intervention may only be carried out
with the authorisation of his or her representative or an authority or a
person or body provided for by law. The individual concerned shall as
far as possible take part in the authorisation procedure.
The regulations under consideration, as well as procedures for application
of the provision, confirm that decisions of a personal nature,
including those relating to health, must wherever possible be the result
of an agreement between the beneficiary and the administrator: in the
case of incapacity of the beneficiary the administrator must in any case
ensure that his own choices respect the personal dignity of the individual
concerned and possibly take into account any wishes previously
expressed.15
Respect for the personal integrity of the individual concerned therefore
constitutes the fundamental principle in the exercise of the powers
attributed to the administrator, in the context of the individual’s
assets and even more so in the personal sphere,16 since life choices
must respect the standard value system of the beneficiary and the identity
of this person.
The relationship between care for the individual, protection of
health and respect for the personal integrity of the beneficiary reflects
that global notion of health which includes a subjective dimension
where the views expressed by the patient himself assume importance:
the concept of health does not exist only in the abstract, but must be
measured against the particular person whose health is being considered.
3
If within this context the dialogue between the support administrator
and the beneficiary constitutes a fundamental tool, in cases where
the individual concerned is incapable it is necessary to verify the operational
space and above all the instruments that will enable the support
administrator to operate while respecting the personal integrity of the
beneficiary.
An important aspect is the provision contained in the law with
regard to the possibility that it is the same individual concerned who
designates his own support administrator, in anticipation of his own
potential future incapacity, by means of a certified public or private
deed (article 408, para. 1), giving due consideration to the autonomy of
the individual concerned by means of the identification of a person of
trust who will be obliged to act while taking into account his needs and
wishes.