—Davide Paris, Senior Research Fellow at the Max Planck Institute for Comparative Public Law and International Law in Heidelberg.
From a judgment on assisted suicide to a judgment on the refusal of treatment
The reasoning of the Court in the “Cappato-order” can be summarized as follows.
1) The State can criminalize the conduct of those assisting suicide because such criminalization can be justified as a form of protection of the right to life, in particular that of vulnerable people;
2) However, when a conscious patient is kept alive through life-sustaining treatments and suffers from an irreversible disease that causes unbearable physical or psychological pain, the help of others can be seen as “the only way to escape an artificial prolonging of life”;
3) Since the recent law on informed consent (n. 219 of 22 December 2017) provides the right to refuse life-sustaining treatment and obtain deep sedation until death supervenes, the legislature cannot deny patients in the aforementioned conditions the right to help in accelerating this process. It is therefore the duty of the legislature to complement law 219/2017 with a medical process allowing the patients to obtain assisted suicide.
While the question of constitutionality arose in a criminal proceeding against a person who helped another to go abroad to undergo assisted suicide that is prohibited in Italy, the Court ultimately states that such a practice must be allowed in Italy as well. Thus, the reasoning of the Court shifts the focus from a provision of the criminal code, as far as it criminalizes a specific form of assisted suicide, to the recent law on informed consent, as far as it does not provide for a specific form of assisted suicide. Rather than on the constitutionality of the provision of the criminal code criminalizing assisted suicide, the Court’s decision turns on the rationality of the recent law on informed consent. A quick look to the latter is therefore necessary to assess the impact of the Court’s decision.
Crossing the border between refusal of treatment and euthanasia
Law 219/2017 is inspired by the following logic: whilst on the one hand the patient has the right to refuse a treatment even when it leads to death, on the other hand the state refuses to provide any treatment that directly causes or accelerates death. At the border between refusal of treatment and euthanasia lies deep sedation. The law provides that when a patient is about to die, the doctor can resort to deep sedation; that is, to an induced full loss of consciousness, until death supervenes. In this case, one may question whether we are still confronted with an issue of refusal of treatment or with an indirect form of euthanasia. Still the death supervenes as a consequence of the treatment’s refusal, such that deep sedation can be considered as a form of pain-relief while the lack of treatment leads to death.
Order 207/2018 goes one step further and crosses that border between refusal of treatment and euthanasia that the legislature was unwilling to cross. In the Court’s view, since the law obliges to respect the patient’s will to terminate his life by refusing a life-sustaining treatment, the same law cannot refuse the patient’s request to make this process shorter, because this would amount to a discrimination between patients in comparable conditions.
By centering its reasoning on law 219/2017, the Court seems to be willing to remain within the limits of the right to refuse a treatment. Order 207/2018 is meant to provide the broadest possible care to patients who decide to terminate their life by refusing a life-sustaining treatment, including the administration of drugs that accelerate death. However, it is clear that in this case, the death of the patient does not result from the interruption of the treatment but from the administration of the drug. More than avoiding a discrimination in law 219/2017, order 207/2018 reverses the very logic of that law. It might well be that, if the legislature strictly regulates the cases in which assisted suicide is allowed, these will be confined to very exceptional ones. But those who fear that a slippery slope leads from refusal of treatment to euthanasia can rightly consider this order as a confirmation of their fears.
A new type of decision: The Unvereinbarkeitserklärung à l’italienne
When confronted with a legislative omission, the Court can normally choose between two alternatives: either not to declare the law unconstitutional and ask the legislature to replace it or to declare it unconstitutional and replace it itself. The former can be ineffective if the legislature does not react; the latter is problematic in light of the separation of powers. In this case, the Court chooses a third alternative: even if the order contains full reasoning, its operative part only reschedules the proceeding until the end of September 2019. This is to give the legislature enough time enough to amend the questioned law according to the Court’s instruction. Meanwhile, the criminal proceeding in which the question of constitutionality arose remains suspended. If other judges happen to apply the same rule, they would also have to stay their proceedings and refer a question to the Court.
This rather unexpected and creative move by the Court is clearly inspired by the Unvereinbarkeiterklärung of the German Constitutional Court, a type of decision by which the Court only declares a law incompatible with the Constitution and assigns the legislature a deadline to redress the unconstitutionality. In Germany, this type of decision has been successful because the German legislature usually reacts in due time to the requests of the Court. It is an open question as to whether a similar type of decision would be equally effective in Italy, where, historically, the Court’s appeals to the legislature to amend or replace unconstitutional law had fallen on deaf ears. Uncertain as a prediction can be, there is a good chance that no new law will be passed until next September on this subject matter, because assisted suicide does not score among the top priorities of the current government. Should this be the case, however, in September 2019 the Court cannot be blamed for overstepping the legislature by redressing the unconstitutionality itself as a result of an express inertia of the legislature.
Suggested Citation: Davide Paris, I-CONnect Symposium: The Italian Constitutional Court on Assisted Suicide—The Italian Constitutional Court and the Recent Decision on Assisted Suicide: The Guardian of the Constitution or the “Guardian” of the Parliament?, Int’l J. Const. L. Blog, December 7, 2018, at: http://www.iconnectblog.com/2018/12/i-connect-symposium-the-italian-constitutional-court-on-assisted-suicide-assisted-suicide-crime-or-right