Il divieto di accanimento terapeutico nella sfera del diritto penale: obblighi di garanzia del medico, autodeterminazione del paziente e rischio consentito

The article aims to analyze how the prohibition of therapeutic obstinacy, provided by art. 2, para. 2, of the Law n° 219/2017, affects patient rights and medical duties, from the point of view of criminal law. The norm imposes an omissive behaviour on doctors and limits their duty to protect patient life, thus excluding that failure to prevent death-event can be equivalent to its causation, according to art. 40, para. 2, p.c. Art. 2, para. 2, performs also a precautionary function on patient’s psycho-physical health: by marking the difference between permitted risk and radically prohibited risk in medicine, i.e. between therapeutic and non-therapeutic medical acts, the prohibition is identified as a precautionary abstention rule for doctors.cFinally, the terms of a necessary reform of the law are outlined, by urging the legislator to avoid granting doctors too wide discretional power and to give relevance back to patient will.