Conclusions
The enhancement of patient autonomy, and the growing developments
in medical treatments and technologies, which may allow physical
survival for years, but which, in some circumstances, could be no
longer of real benefit for the patient, and becoming futile,44 explain why
the debate about advance care directives has become increasingly
important in most European countries during the last few years
Even in Italy there is a need to address the issue of ownership and
the criteria for deciding when the patient becomes incompetent, in
compliance with fundamental ethical principles of respect for autonomy
and beneficence: advance care directives can serve to enhance
patient’s autonomy but, beyond respect for autonomy… advance directives
may also contribute to the patient’s good…indeed, by means of
advance directives, patients are entitled to refuse treatments when they
consider that they would be more harmful than helpful.44
This need is clearly present also in Recommendation of the Council
of Europe’s Committee of Minsters 2009 (11) on principles concerning
continuing powers of attorney and advance directives for incapacity that
aims to promote self-determination for capable adults in the event of
their future incapacity, by means of continuing powers of attorney and
advance directives (Principle 1, Promotion of self-determination) and
that provides that the attorney, as far as possible, informs and consults
the granter on an on-going basis. The attorney, as far as possible, ascertains
and takes account of the past and present wishes and feeling of the
granter and gives them due respect.
Although it emerges from recent jurisprudence that it is possible to
find in Italian legal system the prerequisites and the instruments
required for the recognition of previously expressed wishes, even by
means of the mechanism of support administration, there are some
authors, who,40 while acknowledging that there is no lacuna in absolute
terms from a legislative point of view, do not exclude the appropriateness
of a legislative intervention that would establish a connection
with the mechanism for support administration by setting out the formal,
substantive requirements for these advance manifestations of
wishes to be valid and identifying the subject who is legally obliged to
interact with healthcare staff so as to respect the wishes of the individual
concerned.
Acknowledgement, therefore, of the possibility of enhancing the
value of the system of support administration by means of a mechanism
based on a prior nomination in terms of the implementation of
earlier decisions regarding treatment, does not exclude the fact that it
is preferable to lay down a systematic discipline on the subject which
guarantees full implementation of the principle of self-determination
in the field of health care, particularly in the light of the imperfect overlap
between the institution in question and the so-called living will.
For some authors,18 even the need for the directives and for the designation
of a fiduciary to be conveyed in a notarial act or in a stronger
form seems inappropriate: the absence of directives regarding property
and assets, the connection with the sphere of very personal rights and
the fact that the directives can be revoked or modified at any time
result surely in unfair burdensome formalities, making it seem preferable
that these directives are grouped in an original and signed statement
or declared by word of mouth to the health care staff and put in
writing by them. An ad hoc regulatory framework, as wished for by
many, for advance health care directives, may therefore take its place
in the legal system, while being assimilated within existing principles,
regulations and institutions, and providing an element of certainty for
the healthcare staff involved as well as a certified guarantee of the wishes of the individual concerned