[Capacity and right to therapeutic self-determination in law no. 219/2017. The case of persons with psychiatric and cognitive disorder.]

Abstract

Law no. 219/2017 represents Italy's most comprehensive regulatory framework aimed at enabling the exercise of the right to therapeutic self-determination and ensuring its best expression even for people without legal or natural capacity, through the tools of informed consent, shared care planning and advance care directives. Nevertheless, some criticalities affect the wording of the law, characterised by a promiscuous and heterogeneous use of the terms referring to capacity and by their interpretability. These criticalities may compromise the benefits of the law provisions at the implementation level, with particular reference to persons who may have a condition of limited capacity due to a psychiatric or cognitive disorder. We analysed the concept of capacity in the law and its critical aspects, both on a hermeneutical and applicative level. The analysis shows the difficulty of reconciling the rigidity of the legal categories of capacity with the changing and multifaceted nature of the clinical conditions. We underlined that possible correctives can come from both the healthcare contexts and legal practitioners and must be aimed at achieving maximum approximation between the formal plan of the law and the real contexts of care.