Credits to
Elisa Secchi Villa

Medical liability and personal freedom of the patient: profiles of criminal relevance of restraint

Issue 2/2022

Abstract. The use of physical, mechanical, pharmacological and environmental means to limit the patient’s personal freedom, as well as the doubts related to the boundaries of the ethical and legal legitimacy of this practice, are of transversal interest to the Italian healthcare system. In the absence of a specific legislative framework, the issue must be solved, in the light of constitutional principles on personal freedom and right to health, with the instruments of penal law. In particular, doctrine and jurisprudence consider as diriment the penal codès rules on causes of justification: there is a debate, however, on the applicability, to the case of a doctor who restraints his patient, of fulfilment of a duty’s or only of state of necessity’s and self-defensès justifications. Considering also the consequences that the acceptance of each of the two reconstructions implies on the opposite and specular front of medical liability for accidents and self or hetero-injurious act of the patient, the orientation expressed by the Italian Corte di Cassazione in the judgment on the Mastrogiovanni case should be preferred: restraint is justified only within the strict limits of the state of necessity. Moreover, it should be clarified that there is never an obligation for the healthcare professional to apply restraints to the patient, as it is only one of the means by which the latter’s safety and the safety of the others can be ensured, and it is counterproductive to the therapeutic goal, as well as illegal, to resort to it outside the strict boundaries of emergency.

SUMMARY: 1. The use of restraint practices in healthcare settings. – 2. The legal framework. – 3. Considerations on the criminal liability of healthcare professionals for self-inflicted or hetero-inflicted acts of the patient. – 4. The theory of obligatory restraint of the patient. – 4.1. An example of case-law application. – 4.2. The principle of causality limits the over extension of the medical liability. – 5. A criticism: applying means of restraint is not part of the doctor’s professional duties, not even in the context of compulsory health treatment. – 5.1. Sentence on the Casu case (Trib. Cagliari, sez. Gip, sent. 17 luglio 2012 n. 934). – 5.2. Patient consent as both a source and measure of the duties of the healthcare professionals. – 5.3. The right to personal freedom and the concept of healthcare. – 6. Restraint is only justified within the limits of the state of necessity. – 6.1. The Mastrogiovanni case. – 6.2. The requirements of state of necessity – 7. Restraint is only an option.


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