Along the Italian route of End-of-life: the latest judicial evolution on assisted suicide

In the last three decades, the dilemma of End-of-Life is one of the most disputed bio-juridical questions Italy is confronting with. By raising highly sensitive ethical, legal and political dilemmas, it has deeply divided the Italian society, the scientific community and the political arena. In the context of a raging controversy, the Italian Parliament has opted for silence. Thus, an evolutive, judicial route has marked the legal frame in response to numerous, concrete demands of recognition of the freedom of selfdetermination and value of dignity in the final phase of life. In this review article, an overview of the judicial evolution of the complex mosaic of end-of-life issues will be firstly offered through three cases, pillars on which the latest judicial evolution on assisted suicide lays its foundations. Secondly, the issue of assisted suicide will be singularly addressed through the examination of the Cappato case which has outlined the path for the historical ruling of the Italian Constitutional Court, no'242 of 2019 on the constitutional illegitimacy of the crime of assistance to suicide under article 580 of the Italian Criminal Code. Precisely, the Court has pointed out several, concurrent requirements in presence of which an active conduct directly connected with suicide is not criminally relevant: the autonomous and free formation of the individual will, the irreversible nature of the disease, the ongoing practice of a lifesaving treatment, the intolerability of the physical or psychological sufferings and the mental capacity to self-determination. Among the numerous, emerging, interpretative questions, the latest Trentini case, in which the requirement of life-saving treatment has been interpreted as inclusive of pharmacological therapy and of every material, sanitary life-saving assistance, will be further evaluated. Conclusively, a cross section of the fragile interplay between the legislative power and the judiciary power will be depicted in reference to the main open interpretative questions related to the enforcement of the constitutional ruling and a portrait of the upcoming scenerios, as the existing legislative drafts and the prepositive referendum question, will be concisely examined.


Introduction
Since the last three decades, the end-of-life is the most disputed bio-juridical theme Italy is confronting with. Due to its highly sensitive and divisive range, the Italian Parliament has only marginally and lately regulated the related issues. 1 Thus, in lack of regulation and surrounded by an immobile and alarmed political climate, the evolution of end-of-life in the country has been mostly conveyed by the judiciary power. In line with a transnational, ongoing tendency, the Italian Courts have dealt with claims of recognition of rights on the ground of the freedom of self-determination and the value human dignity in the final phase of life, directly enforcing constitutional rights. 2 In doing so, numerous interrelated issues have been gradually distinguished and addressed as components of the complex mosaic of end-oflife.
In the first section of this review article, an historical overview of the judicial route on the issues of informed consent, the right to refuse life-saving treatments, the practice of deep sedation and the enforcement of the written living will, will be respectively proposed through a concise analysis of Englaro, Welby and Piludu cases. In the second section, on the ground of that foundational cases, the evolution of the legal frame of assisted suicide will be detailly addressed through the examination of Cappato case, the constitutional ruling no' 242 of 2019 and its revolutionary range and aspects of critique. Having identified one of its most disputed, emergent interpretative question, the Trentini case will be further evaluated as a step towards the enforcement and interpretation of the constitutional ruling. At third, final stage, a cross section of the fragile interplay between the legislative power and the judiciary power will be conclusively depicted in reference to the main, open interpretative question related to the enforcement of the constitutional ruling; further, the upcoming sceneries of the pending legislative drafts and the referendum on assisted suicide and euthanasia will be concisely examined.

The judicial evolution of end-of-life issues in Italy: an historical overview
The interrelated pieces of the complex mosaic of end-of-life begun to be discussed in Italian Courts at the end of the Nineties when the judiciary was increasingly appealed by numerous, civic claims of rights in the final phase of life. By untying the tight knots among the involved constitutional, civil and criminal levels, the Courts have addressed the issues of the principle of informed consent and the right to refuse life-saving treatment, deep sedation and the enforcement of the written living in three, foundational cases which have outlined the pathway to the judicial recognition of the right to die with dignity: Englaro, Welby and Piludu cases.

Englaro case: informed consent and the right to refuse life-saving treatment
The legal parable of Eluana Englaro traces back to 1992 when the young woman was tragically involved in a car accident, reporting severe brain lesions and the fracture of cervical spinal bone. Despite the dissent of the family founded on the woman's reconstructed will, Eluana was tracheotomized. After a while she fell into an irreversible, permanent vegetative status: even if she could autonomously breathe, she was artificially fed and had totally lost her decision of the Court violated the separation of powers. 8 The Court finally declared the appeal inadmissible: the government's competence to regulate in general, abstract terms was not violated by the decision, a legitimate judicial act on the ground of the judiciary's power and duty to decide in the single, concrete case. 9 Seventeen years after the accident and her fall in vegetative status, Eluana spired in a raging social and political context. With the Englaro case, the judicial route of end-of-life reached a first, essential step: the judicial recognition of the right to refuse sanitary treatment as a constitutionally protected right which, in case of the patient's loss of mental capacity, is enforceable by the legal guardian. In the same years, several, diverse aspects of the end-of-life issue in question were further examined in the Welby case.

Welby case: doctor's criminal exculpation for interrupting life-saving treatment and deep sedation
Piergiorgio Welby was affected by a degenerative pulmonary and muscular dystrophy. In 1997, he was attached to an automatic respiratory ventilator with the aim to maintain his biological functions on while his mental capacity was entirely preserved. After eight years, in the light of the gradual worsening of the acuteness of the irreversible disease which immobilized him, the man inquired how to die painlessly and with dignity. Firstly, he appealed the Tribunal to suspend the life-saving treatment and to halt what he considered therapeutic obstinacy: in line with the sequence of denials in www.bioethics.gr Andreani T. / Βιοηθικά 7(2) Σεπτέμβριος 2021 the Englaro case, the demand was rejected in 2006 on the ground of the absence of primary regulation. 10 Consequently, he publicly claimed for the medically assistance to suicide or for euthanasia. In response to his open letter of help, 11 the President of the Italian Republic recalled the Parliament to its duty to legislate. In the same year, Welby was helped by the anesthetist Mario Riccio who accepted to suspend the ventilation and to practice him the deep sedation. The anesthetist publicly declared and revendicated the deontological legitimacy of his action. While the Italian medical association supported the actions in question as legitimate from a medical, ethical and professional viewpoints, the doctor was subjected to a criminal investigation under article 579 of the Italian Criminal law, which punishes consented murder or euthanasia.
With a detailed insight in the patient's health condition and will, the criminal proceeding verified that the cause of death was a cardio-respiratory block. Thus, firstly the action of deep sedation was found not to be directly connected to the death: it was demonstrated to be exclusively as a direct consequence of respiratory insufficiency induced by the suspension of artificial ventilation. Secondly, the act of suspension of the treatment in question was criminally exculpated under the compliance of the medical duty to respect the patient's will and constitutionally protected right to refuse sanitary treatment. 12 With the Welby case, the judicial evolution led to a second, crucial step: the recognition of the right to sanitary treatment refusal as the legal ground on which the criminal exculpatory cause of the doctor's act of suspension of the lifesaving treatment relies. 13 Further, the practice of deep sedation was found to be criminally irrelevant, lawful in accordance with the renovated frame of therapeutic relation of care. Ten years later, on the ground of the legal rationale enforced in this case, the Piludu case has further developed.

Piludu case: legal enforcement of written living will
In 2011, Walter Piludu was diagnosed to be affected multiple sclerosis. The year after, he began to write his personal will with regards to future, invasive treatment: he declared that, in case of loss of mental capacity, he would have wanted the life-saving treatment to be suspended and the deep sedation to be practiced. He wrote several, detailed private living wills and appointed a legal guardian to enforce them. In 2016, after Walter's loss of mental capacity, the representative appealed the Tribunal and demanded the suspension of the treatment. Finally, the Court authorized the suspension in question on the ground of the patient's unquestionably clear will and in accordance with the uniform jurisprudence on informed consent, freedom of self-determination in care and the right to refuse sanitary treatment as constitutionally protected and judicially recognized. 14 With the Piludu case, a crucial, third step of the judicial evolution in question was reached: the judicial recognition of the right to suspend the life-saving sanitary treatment enforced by the 44 www.bioethics.gr Andreani T. / Βιοηθικά 7(2) Σεπτέμβριος 2021 legal guardian on the ground of the patient's previously written living will. 15

On the judicial roots: Act 219 of 2017
The above-examined Englaro, Welby and Piludu cases have fundamentally redrawn the Italian legal frame of end-of-life. It can be capsulized that, in absence of primary regulation, the judiciary power has laboriously but revolutionarily recognized the existence of the principle of informed consent in a renovated frame of the therapeutic relation of care and the right to refuse life-saving sanitary treatment in the existing, constitutional legal order. Only in 2017, eighteen years after the beginning of the Englaro case, the Italian Parliament has finally regulated these end-of-life issues with Act 219 of 2017 on the roots of the judicial evolution. 16 The regulatory frame on end-of-life currently relies on Act 38 of 2010, which is composed of a dense set of norms on the introduction, organization and effectiveness of palliative care and pain therapy, 17 and on Act 219 of 2017. The latter ultimately regulates the renovated, patient-centered therapeutic relation on the ground of the principle of informed consent and states the right to refuse sanitary treatments and disciplines the advance directives of treatment (DAT) to be respected in case of the patient's loss of mental capacity. 18  Act reproduces the afore-described judicial advancements in an organic regulatory frame. 19 Voluntarily, the legislator has omitted to regulate the two consequent, intimately related end-of-life issues: assisted suicide and euthanasia, which continued to be criminalized under articles 580 and 579 of the Italian Criminal Code. However, the two issues in question have further forcefully resurfaced along the subsequent steps of the ongoing, judicial route.

A breach in the criminalization of assisted suicide: Cappato case
In 2014, a young man, Fabiano Antoniani, was involved in a car accident and reported severe spine lesions which caused him total paralysis and blindness. Deprived of any motorial ability while maintaining mental capacity, he was further subjected to artificial respiration and alimentation. For three years, he was engaged in numerous therapeutical, experimental processes with the support of the family, without any success: the quadriplegia was irreversible. In 2017, suffering from constant, painful respiratory crisis, he began to express the will to end is life and asked the family to inquire the viable alternatives. In the meanwhile, the severeness of his sufferings increased as well as the intensity of his intention despite the family's dissent. Fabiano's relatives reached Marco Cappato, a political activist patronizing numerous, radical battles for the enforcement of civil rights, who informed them about the two, existing alternatives to die with dignity: the suspension of the life-saving sanitary treatment and the concurrent deep sedation, in accordance with the legal judicial frame delineated in Englaro and Welby cases; or the recurrence to assisted suicide or euthanasia in a 45 www.bioethics.gr Andreani T. / Βιοηθικά 7(2) Σεπτέμβριος 2021 foreign country and sanitary structure, as the Swiss Clinic Dignitas. The medical feasibility of the first alternative was excluded: for his peculiar conditions, Fabiano would have died in numerous hours or several days of convulsions after the suspension, at the emotive expense of his family. 20 In absence of any legal ground for assisted suicide or euthanasia in Italy, he finally opted for the practice of assisted suicide in Switzerland. However, according to the article 580 of the Italian criminal code: "whoever determines, reinforces other's people suicidal proposal or assists it in any way its execution is punished to from five to twelve years of detention": 21 on this ground, his partner and mother would have been persecuted for their conduct of material assistance. In light of these circumstances, Marco Cappato consented to help him by furnishing the material actions needed: in February 2017, he drove Fabiano to Switzerland where the latter, after having pressed a button connected to a narcotic injection with his mouth, immediately and painlessly died.
In the following days, Cappato reported reported to have committed the crime of assistance to suicide under article 580 of the Criminal Code: an investigation begun. At the very initial stage of the proceeding, the public prosecutor tried to enforce a constitutionally oriented interpretation of the concept of "assistance" with the aim to exclude the criminal relevance of the conduct in question. 22  was the protection of vulnerable people, the will of whom can be considerably determined and reinforced by others, and by reconstructing of the right to die with dignity on the ground of the constitutional and international frame, the public prosecutor demanded the dismissal of the charge. However, the interpretative attempt in question was preliminarily rejected on the ground that it was contra legem and, in the frame of such a sensitive ethical issue, it was in direct contrast with the mandatory prosecution principle and the legislative power of the Parliament. 23 Therefore, Marco Cappato was finally charged under article 580: the criminal trial begun.
In light of the factual, peculiar traits of the Cappato case, the public prosecutors questioned the constitutional legitimacy of article 580 before the Court of Assize of Milan. So, the latter appealed the Italian Constitutional Court, claiming that the criminalization of the mere conduct of material assistance, which does not play any role in the reinforcement of the suicidal intent voluntarily and freely matured by the person, was in contrast with the constitutional principle of self-determination as well as with the international obligations. 24 In October 2018, having examined the case, the Italian Constitutional Court enacted an ordinance of suspension of the judgment, recalling the Parliament to its duty to intervene in the span of time of one year. 25 In the ordinance, the first and unique one of this sort, the Court highlighted the paradoxical and discriminatory outcome emerging from the Italian legal frame: on the one hand, in accordance with Act 219 of 2017 a patient can decide to end his life painlessly by suspending the life-saving treatment and being deeply sedated while, on the other one, the same patient affected by an acuter health condition, to whom the suspension of the treatment cannot guarantee a painless, decent death, is prevented to be helped to die. 26 On this ground, the constitutional illegitimacy of the norm was argued in relation to the personalist principle, the freedom of selfdetermination and the fundamental right to health. However, the Court decided opted for a self-restrain on the ground of the concern to leave a dangerous, legal void in the criminal frame and of the necessity to balance the extremely significant values involved: the exclusive, constitutional role and duty of the legislative power. 27

The historical intervention of the Italian Constitutional Court: ruling 242 of 2019
Due to the abstention of the Italian Parliament from any regulatory intervention on the issue in the relevant year, the Constitutional Court finally intervened. 28 With the ruling 242 of 2019, the Court has declared the partial 26 The critical remark moved by the Court had been further addressed by the scholars: Pizzetti F. L'ordinanza no 207/2018 della Corte Costituzionale pronunciata nel corso del "Caso Cappato", e il diritto del paziente che rifiuta le cure salvavita ad evitare un'agonia lenta e non dignitosa. Rivista di BioDiritto 2019. 27 Razzano G. La Corte costituzionale sul caso Cappato: può un'ordinanza chiedere al Parlamento di legalizzare il suicidio assistito? Dirittifondamentali.it 2019: 1-25. 28 Bin R. Tanto tuonò che piovve. Pubblicata finalmente la sentenza sull'aiuto al suicidio. LaCostituzione.info, 22 novembre 2019. constitutional illegitimacy of the crime of incitement and assistance to suicide under article 580 of the Criminal Code. As announced in the ordinance, the criminalized conduct of material assistance to suicide in the specific case of Fabiano was found to be in contradiction with the right to refused life-saving sanitary treatment and to consequently die as regulated in Act 217 of 2019. 29 On the ground of the latter's renovated regulatory frame, the Court has enforced the interpretation of the constitutional frame and has declared the partial illegitimacy of the article in question. Precisely, at the core of the ruling, it is stated that the material conduct of assistance is criminally irrelevant in presence of four, concurrent requirements: a) the irreversible nature of the disease, b) the intolerability of the physical or psychological sufferings, c) the ongoing practice of life-saving treatment, d) the mental capacity to freely and consciously selfdeterminate.
The Court has further addressed several, interrelated insights on the medical service of assisted suicide. As essential premise on which the legal and moral discourse can be built, the Court has forcefully highlighted the necessity to guarantee the effectiveness and the homogeneity on the national territory of palliative care services. Recalling for the necessity of a detailed, regulatory intervention, the Court has further outlined the administrative lineaments of the medical treatment of assisted suicide: the treatment must be practiced exclusively in the frame of the National Sanitary System, the local sanitary structure is competent to verify the recurrence of the relevant requirements and, ultimately, the medical staff's right to conscientious objection has to be guaranteed. been appointed as the competent bodies to release a mandatory but consultative opinion the single, concrete patient's request of assisted suicide. It can be argued that, in the ruling in question, the Constitutional Court has addressed the disputed and sensitive issue of assisted suicide by adopting two different registers. In regulating the administrative, organizing and operational profiles of enforcement of sanitary treatment of assisted suicide, it has suggested general and abstract rules in attendance of the auspicial exercise of the legislative discretion. Differently, at the core of the ruling, the Court has utterly shaped the requirements in question on personal and medical conditions of Fabiano Antoniani in line with the evaluation of his specific, concrete case. 30 The constitutional ruling gives the floor to numerous, interpretative open questions which have been immediately raised and discussed by the scholars: 31 on the administrative visualization of the treatment of medically assisted suicide and the related clash with the doctor's deontology, medical autonomy and right to conscientious refusal; on the role of the ethical Committees; in particular, on the four concurrent requirement and the related, emerging consequences.
Among all the interpretative open questions, one requirement has been critically questioned and vastly addressed: the practice of 30  a life-saving treatment. Precisely, this prerequisite is exposed to two, relevant critical remarks. The first one is of constitutional nature: it can be found unreasonable and discriminatory under article 3 of the Constitution on the ground that, in relation to the access to the practice of medical assisted suicide, it prevents the patient who is not, or not yet, subjected to a life-saving treatment to have practice assisted suicide. Consequently, it is arguable that the latter category of people is forced to proceed to the sanitary treatment in question in order to have access to assisted suicide. The second remark, deeply tied to the first, is of theorical and interpretative nature: there is no legal definition of the concept of life-saving treatment, which can be variously and differently conceptualized. The latter issue has been further judicially evaluated in Trentini case.

Enforcing the constitutional ruling: Trentini case and the interpretation of lifesaving treatment
In 2017, Davide Trentini decided to recur to assisted suicide in Switzerland when, due to multiple sclerosis and despite the complex pharmacological treatment, he became permanently and totally disabled while entirely maintaining his mental capacity. Among the numerous similarities with Fabiano Antoniani, the man collected information on the existing, viable alternatives to end his life through Marco Cappato, the well-known political activist, and Mina Welby, wife of Piergiorgio Welby and eminent figure of the political battle in question, both exponents of Luca Coscioni Association. 32 The first helped him to organize a fundraising in 32 The Luca Coscioni Association is the most politically active association in Italy involved in the advancement and liberalization of end-of-life, as well as the complex interplay between freedom of selfdetermination and scientific progress. enforceable exclusively on the criminal level. 38 In appeal, the interpretation in question has been partially reformed: having claimed the obligation of the Parliament to intervene, the Tribunal has finally ordered the national sanitary structure to verify the recurrence of the four requirements established in the constitutional ruling. 39 Furthermore, the Regional Commission of Bioethics of Tuscany has tried to frame an interim administrative procedure to regulate the access to the sanitary treatment of assisted suicide within the regional sanitary service. 40 In the enduring lack of primary regulation, it is noble attempt to discuss the open interpretative questions emerged in the constitutional ruling and to give an answer to the civic claims of assisted suicide.
The adoption of an organic, regulatory frame on assisted suicide and euthanasia is the main, vexed issue of today. Eight legislative drafts on assisted suicide and euthanasia are currently pending before the Italian Parliament. In the last two years, due to the above-illustrated, numerous cases of assisted suicide and public demands of euthanasia, the inert political climate has been forcefully questioned both by the judiciary and by the citizenry. On opportunity to frame and adopt a primary regulation there is a wide scholar consensus. Without any doubt, it can be said that the legal core of the regulation has been already written along the judicial route of end-of-life: 41 on this ground, the Act should follow the principles of self-determination in 38 Idem: 2. 39 Tribunal of Ancona, ordinance of 9 June 2021. 40 Regional Commission of Bioethics of Tuscany, Opinion "Conditioned legitimacy of medically assisted suicide and regional sanitary service", 14 February 2020. 41 Tamburini C. Let's not die of inertia: suggestions for reflection in view of an Italian Law on some aspects of the end of life. BioLaw Journal 2020: 7-9.