Italian Living Wills (“Dispozizioni anticipate di trattamento” or “DAT” ) are legally binding statements of choices made by persons who, fearing they may not be mentally capable in future, make advance decisions on future diagnostic assessments, therapeutic or medical treatments which may be applicable / available to them.
Under the Italian Constitution although personal health is a fundamental right of every person, nobody can be subjected to medical treatment against his / her will, unless such treatment is expressly provided for by legislation. Therefore, under Italian law a patient may reject medical treatment if she/he so wishes. This includes artificial nutrition and hydration.
In Italy, under a 2017 law anyone who is of age and has mental capacity may make legally binding elections as to his/her future medical treatments, should she/he lose mental capacity. These personal decisions (DAT or Italian Living Wills) can be made either with the assistance of an Italian notary or by a private document certified by a lawyer, or when required by the clinical conditions of the testator, by video recording / with the assistance of other equipment which may enable disabled patients to communicate.
DAT or Italian Living Wills are exempt from any tax and can be changed / revoked at any time. In case of urgency, DAT can be revoked by a statement of the patient / testator made to a medical practitioner in the presence of two witnesses.
Because medical advances may make significant differences in future treatment of diseases / illnesses, Italian testators of DAT / Living Wills are encouraged to appoint a trustee (Fiduciario) who will represent them in their future relationship with their doctors and will assist with the actual medical choices as these may be available at the relevant, future time. The appointment of a trustee “Fiduciario” is, of course, entirely discretional.
Italian medical personnel are legally bound by DATs in Italy. However, where the DAT provisions are patently incongruous, they do not apply to the current clinical condition of the patient/testator or there are new medical therapies / treatments which were not known at the time the DAT was made, Italian Living Wills can be derogated by agreement between the Fiduciario (trustee) and medical personnel treating the patient / testator. Any disagreement between Fiduciario and medical personnel may be referred to the local courts.
With a decree issued at the end of 2019 the Italian Ministry for Health (Ministero della Salute) has established an Italian Living Wills / DAT databank (Banca Dati delle DAT). The main purposes of this databank are to collect / store copies of Italian Living Wills together with any amendments / revocations of the same and to make them promptly available to any doctor / medical personnel supervising the patient / testator, at a time when the patient is not mentally capable.
The new databank will also collect data and contact details of any “Fiduciario” who may have been appointed.
Italian notaries, notarial offices of Italian Consulates abroad, public registrars and district authorities are now required to lodge a copy of any Italian Living Will they may receive.
Finally, any data lodged with the Italian Living Wills data bank will be deleted permanently in Italy after ten years from the date of death of the patient / testator.
Dr Claudio Del Giudice – 31.01.2020 Copyrights reserved