RICERCA ITALIANA     

New frontieres in the medicine criminal law: comparing the italian to foreign experience

Università degli Studi di Firenze

Abstract

Nowadays, the medical activity (therapeutic, experimental, aesthetic and so on) is the object of a philosophical, ethic and especially criminal law consideration. So, many institutes of criminal law are involved in medical activity, like causality, fault, omission, complicity etc.
This research wants to investigate two groups of arguments; the first, traditional, concerning the problem of justification of the medical profession and its liability; the second, in the forefront, concerning the bioethics considerations of the beginning and the end of life and the clinical experimentation., when law and reflection are not yet developed.
The Unit of research of Pisa will deal specifically with the topics of the causation, relationship and the subjective criteria required to the ascription of criminal responsibility. The Unit of research of Siena, will develop the part of the study related to the legal grounds and judicial basis of the medical-surgical profession.
The Unit of research of Bologna will direct its scientific work to the complex matter of legal regulations on the field bioethics considerations of the beginning and the end of life, like euthanasia and medically assisted procreation. At last, the unit of research of Firenze will focus its activity on the analysis of clinical experimentation.
The operative Units of Pisa and Siena, will investigate the tendencies of jurisprudence and the doctrinal positions emerged in the scientific literature >>>

Principal Investigator

Fausto Biagio GIUNTA Università degli Studi di FIRENZE

Research Objectives

The research, given the lack – within the scientific literature – of global studies analyzing the medicine criminal law in a comparative perspective as well as with the purpose of proposing notions and models de iure condendo, aims to pursue goals of cognitive as well as of proposal order. As for the cognitive order aims, they first of all regard to the general field of medicine criminal law, in all its implications: that is, from the traditional features, concerning the legal grounds for defences, the causation relationship between medical activity and event, cooperation and negligence, etc., to the new frontiers questions, like that of clinical experimentation and of bioethics limits to the beginning and end of life.
Secondly, the goal of the research will be the comparative analysis of the discipline regulating the matter in Italy as well as in several foreign legal systems selected and assumed as terms of comparison, according to the traditional distinction between civil law and the common law countries. The research will focus on the comparison between the Italian regulations and those of the above mentioned foreign countries, aiming to underline what are – if any - the common standards and patterns in the development of the provisions regulating this matter.
As to the comparison of the Italian model of discipline on clinical experimentation with foreign national legal systems within the civil law tradition, the Unit will focus his analysis particularly on >>>

Timescale

24 months

National and international background

Having raised quite recently, in the last years, the interest towards the relationship between medical activities and their criminal implications have progressively grown to be a fundamental point of discussion for the Italian and foreign legislator as well as for the courts and the judiciary. Besides the traditional notions of criminal law involved in this case – think, for instance, to causation, defenses and mens rea – to the medicine criminal law affects also several aspects of "new frontiers" matters, like drug experimentation and bioethics.
The reason for a research into the legal grounds of permissibility of medical conducts – and thus, into the grounds of medic defences – resides clearly in the two-dimensional nature of the medical profession that, on one hand, is perceived as intrinsically advantageous, being finalized in the physiology of its activity in curing illness, and in preserving an interest of constitutional relevance, on the other hand, in each instance, demonstrates the essential element of the potential abuse of power which justifies the involvement of penal law. This happens for example, in consequence of a surgical intervention, even without destroying tissues, because the simple surgical incision and its anaesthesia - both entailing a more or less wide range of post-operative pains - determine an alteration of the physical and mental state of the patient; but it is evident that similar alterations can occur even after bloodless medical >>>