Notes on health as respect for the dignity of the human person who, unlike all other living beings, can never be considered as a simple means but only and always as an end.
The Constitution is the most important and primary regulatory text of the sources of law of our country: from which rights and duties, obligations and prohibitions, powers of powers and rules for their exercise.
It ‘was the Italian Constitution the first in Europe to provide a right to health by establishing in its Article 32: “The Republic protects health as a fundamental right of the individual and collective interest, and guarantees free medical care to the indigent.
No one can be forced to a specific medical treatment unless required by law. The law can not under any circumstances violate the limits imposed by respect for the human person. “
Before that only the World Health Organization in 1946 had considered health as “a state of complete physical, mental and social and not merely the absence of disease or infirmity”, with concepts of time big news.
In previous centuries in fact health had never been expressly mentioned at the state level, except for Hygiene and Public Order.
It had been just a hint generic as “general welfare” in the famous preamble of (modern, by then) US Constitution of 1789 that even then it proclaimed: “We, the people of the United States in order to perfect our union, ensure justice, insure domestic tranquility to ‘internal, provide for the common defense, promote the general welfare, to protect ourselves and our posterity the sake of freedom, we establish this Constitution which Order by the United States of America. “
Before the last century the protection of health at the individual level was in fact delegated to charitable organizations and Ecclesiastical Entities (for example, in Italy, the Crispi Law no. 6972 of 17.07.1890): an example for all the Galliera Hospital Genoa, built in 1885 thanks to the generosity of the Duchess of Galliera for the purpose of “helping the poor sick.” The statutory body “is intended to ensure the best health care to the sick with full respect for the inviolable dignity of every person. The Agency intends to refuse what is objectively likely to damage the dignity, regardless of any distinction based on gender, wealth, ethnicity, nationality, religious belief. The Agency intends to engage in the care and in the ‘attention of the person affected by the disease, inspired by the common sense of sharing and solidarity … “.
But for example, in the Statute Albertino he not made no mention of the health and even the Consolidation Act of 1934 under the fascist regime expressly recalled.
But now the art. 32 of the Constitution is a source of private law as a stimulus and a directive for the legislature to ensure compatibility private law institutions that are outweighed by the times. Because the principle has preceptive content directly applicable in certain circumstances also to relations between individuals.
Finally, the constitutional provision is a screen to control the ordinary rules can not contradict you on pain of being declared illegal and then deleted from ‘Order.
Article 32 must be interpreted to that effect under Article 2: “The Republic recognizes and guarantees the inviolable rights of man, as an individual and in social groups where he expresses his personality, and demands the fulfillment of mandatory duties of political solidarity, economic and social. “
And Article 3: “All citizens have equal social status and are equal before the law, without distinction of sex, race, language, religion, political opinion, personal and social conditions.
E ‘task of the Republic to remove obstacles to economic and social, which (by limiting the freedom and equality of citizens) prevent the full development of the human person. “
Faced with such a task arise then the rights granted to citizens not so much as an individual but as a social group and that are called “social rights”: that is, when citizens are calling for the state to grant him a benefit or service you precisely what the ‘ health care (but also education or a house, etc.).
To assure that the public benefits necessary and essential to obtain minimum essential levels of civil existence. Thus committing not only the state but also the regions, provinces and municipalities to ensure the minimum conditions of health and well being of the individual.
In particular the right to health (as well as being one of the inalienable rights recognized by ‘Article 2), is the only defined essential and is a primary value of the constitutional order.
Both as a right erga omnes directly operated against the public authorities that the private interest of the community.
And intended both as a negative freedom (freedom from, for example from unwanted medical treatment) that as a positive freedom (freedom: for example freedom of treatment).
So negative freedom – immediately payable by the individual – that the third parties to refrain from conduct prejudicial to his right to ‘integrity of his health, both physical and psychic. It claims to the quality of life against all the harmful elements that could hinder it.
Over the years the courts have concretized this principle by recognizing the right to compensation of the CD. “Biological damage” (according to the art. 32 of the Constitution and art. 2043 cc): ie the resulting damage “per se” injury of good health and of itself, regardless of any economic consequence suffered by the injured: the historical judgment no. 88 of 1979, the Constitutional Court ruled that Article 32 protects health “not only as a collective interest but above all as a right of the individual that is configured as a primary right and absolute, fully operational even in relations between individuals … to encompass between subjective positions directly protected by the Constitution. “
Connected to the right of psychophysical then there is the wider recognition of the protection of the right to a healthy environment and as a condition for the realization of the right to health.
So much so that the environment is now considered a primary, which also defending from various forms of pollution and degradation is brought about the right to health. The damage done to the ‘environment, for example with the’ pollution becomes an immediate injury to ‘physical or mental integrity. And even in this case you start to assume the refundability direct benefit of victims (although compared to the biological damage is more difficult to identify the causal link between the damage and the action that the attorney mesothelioma asbestos).
There are also the positive freedoms such as the right to be treated with freedom of choice of medical service: understood as choice of doctor, healthcare facility, public or private, of the health (or in Italy also all ‘abroad but always at the expense of State). As well as the patient’s right to informed consent (with rare exceptions such as mental illness with forced hospitalization or in the state of need for emergency situations where the patient is unable to give consent or for mandatory vaccinations) understood as yes right to be looked after but getting though all relevant information, in order to undergo therapy which goes as well as possible alternatives.
As then there is also the right not to be cured, that is, to refuse treatment. (In the cases of persons in a state of unconsciousness, unable to express their will, there are serious problems regarding the possible interruption of treatment.
In the case of Eluana Englaro, the Supreme Court ruled that the judge may authorize the termination of medical treatment provided that the vegetative state is irreversible and that the desire for cessation of artificial feeding is deduced from his previous life).
In view of the right to health it is therefore the ‘positive obligations of the State to put it into practice through adequate health care organization. And then a corresponding right to ‘health care: recognized at all, as I said, not only to citizens but also to foreigners. Albeit with differentiation between immigrants with a residence permit or not: the former have full equality with citizens. But also to irregular are assured urgent or essential care and the protection of pregnancy and motherhood, without reporting to the ‘Authority. It ‘so guaranteed everyone a minimum level of protection and essential in case of illness and injury, even to those who are in Italy illegally. (And vice versa also to Italian citizens residing all ‘foreign). Therefore necessary to provide health care both directly (through public welfare facilities) and indirect (through benefits paid by private structures): for this purpose in 1978 was set up the National Health Service which every citizen is registered mandatory and which initially tended to provide free medical care or semigratuite not only the needy but to the entire population (including, as mentioned, foreigners).
The Constitution does not guarantee, however, public health services free for all (but, as mentioned, only for the destitute).
And in fact the process that began in the 70s with the establishment of the National Health Service (inspired by a full coverage of the costs and expenses of health by the State) began to be abandoned from the 90s with a more marked reduction of free health, influenced by ‘worsening of public spending and the need to take into account the financial possibilities of the country: for example with the introduction of the ticket as a measure of sharing the cost of health services.
The right to health is therefore financially become conditioned to the financial resources, as recognized by the judgments of the Constitutional Court, the last n. 248 of 2011.
But then the increasing difficulty to maintain levels of economic “welfare” also induced to invest in the promotion and prevention of health to contain the national health expenditure with a reduction in hospital admissions, of health services and consumption of drugs .
And also, if necessary, resorting to limitations of individual rights, such as vaccination or the obligation of the seat belt, helmet or the prohibition of smoking (especially in ‘working environment Article 2087 Civil Code states that the employer is required to take all necessary measures to protect the health of the worker). That is, when the individual has not only the right, even the duty to health: in the ‘interest of public safety and health.
Then the economic crisis of recent years has increased the dependence of the right to health to the availability of financial resources, subject to the basic level of benefits relating to civil and social rights that the regions (which since 1999 has been entrusted an important part of management of health services) must always guarantee citizens (art. 117, c. 2, letter m, of the Constitution). And so that individuals can continue to claim minimally despite the financial dependence of the right to health to the possibility of expenditure of the State and the Regions.
And in what respect the dignity of the human person who, unlike all other living beings, can never be considered as a simple means but only and always as an end.
Emblematic of the current German constitution, after the Nazi tragedy, which begins with the solemn declaration: “Human dignity is inviolable. To respect and protect it is the duty of every public authority. “