Monthly Archives: July 2017

The Italian Constitutional Court Reaffirms Freedom of Doctors in Choosing Appropriate Care

On December 9, 2015 the Italian Ministry of Health had issued a much debated decree (also known as Decreto Appropriatezza). The decree listed a number of health services, with a particular focus on diagnostic tests, and limited the ability of a doctor within the National Health Service to prescribe them.

The aim of the decree was to limit the so-called “defensive medicine”, which plagues many health systems (see our previous post on medical malpractice and defensive medicine) and has been defined as follows:

“Defensive medicine in simple words is departing from normal medical practice as a safeguard from litigation. It occurs when a medical practitioner performs treatment or procedure to avoid exposure to malpractice litigation. Defensive medicine is damaging for its potential to poses health risks to the patient. Furthermore, it increases the healthcare costs. Not the least, defensive medicine also paves way for degradation of physician and patient relationship.”

The Ministry of Health intended to limit the ability of doctors to prescribe diagnostic tests to predetermined cases and conditions when they were deemed to be appropriate. Many doctors disliked the constraints (as well as the possible sanctions, subsequently lifted) denoted in the decree, which implied strong limitations to the “divine profession” and a fundamental distrust of doctors’ own judgment.

In a recent decision (Judgement no. 169 of 2017), the Italian Constitutional Court provides an interpretation of the decree that strongly favors freedom of physicians in their prescription activities. The Constitutional Court states that the decree can be regarded as being consistent with the Constitution only if it is interpreted as a mere recommendation to doctors, who must remain bound only by their personal judgment based on science and on their conscience. The judgment touches upon many other interesting principles, and an analysis of it can be found here.

In conclusion, the Court found that constraining doctors’ decisions would result in a breach of the constitutional right to personalized and effective health care. It also stated that decisions on appropriateness of health services cannot be based on political or economic rationales, but must always be filtered through the autonomous and responsible judgment of doctors.

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