DAT: the innovation introduced by Law No. 219/2017 on the living will

The new law on the living will came into force on 31 January 2018 and establishes the principle whereby no medical treatment may be initiated or continued without the free and informed consent of the person concerned, except for cases expressly provided for in the law.

One of the most important aspect of this law is the introduction of the DAT under Article 4, that are the advanced decisions of the treatment, with which every adult in full possession of his faculty can express his wishes in terms of refuse or acceptance of medical treatments, anticipating a future inability of self-determination.

There has been a lot of discussions whether or not artificial hydration and nutrition might be refused by the patient. But today, in accordance with Article 1 paragraph 5 of Law No.219/2017, they are considered methods of nutrition’s administration, on medical prescription, which fall within the broader category of “medical treatments”.

The law lays down the possibility (and not the obligation) to nominate someone trustworthy, so-called “fiduciary”, that represents the patient in the relationship between the doctor and the healthcare facility. The acceptance of the appointment occurs by the DAT subscription or by a subsequent act, then attached to the decisions, and by delivering a copy to the fiduciary. The fiduciary may refuse the acceptance through a written deed and may be withdrawn in any moment, without the obligation to state reasons and in the manner prescribed for the acceptance. In case the DAT does not include the name of the fiduciary or if he has renounced or he have been lapsed, the advanced decisions shall remain valid. The fiduciary, in coordination with the doctor, may disregard the patient’s wishes in certain cases foreseen by the law: if they are clearly incongruous, if they do not correspond to the actual medical situation of the patient or if unpredictable treatments at the moment of the DAT subscription took place. In case of conflict between the fiduciary and the doctor, the decision is delegated to the judge by the legal representative of the person concerned or by the parties stated under article 406 of the Italian Civil Code or by the doctor or the director of the healthcare facility.

DAT may be drafted in public or private deed, personally submitted to the City Clerk’s Office of the municipality where the patient resides. If the patient is not able to sign, the deed shall be concluded in presence of two witnesses or by a video recording or any other communication tool.

It is possible to modify or withdraw the DAT in the same form provided for the drawing or, in urgent cases or in the event of impossibility, by a verbal statement or through a video recorded by the doctor and two witnesses.

A prior consultation with a doctor is necessary, in order to preemptively gather all the medical information on the consequences of personal choices.

DAT shall be registered in a municipal register (if already set up) or in a online regional register, in case the Regions have already set up an online management procedure of the medical records. The main problem of the law on the living will is that it provides only regional registers, which means that if a person is recovering in a different region compare to the one where he lives, DAT may not be granted. The “Legge di Bilancio” 2018 has allocated EUR 2.000.000 to set up a national register and the Consiglio Nazionale del Notariato has created a national register, available to all the Italian health authorities. People cannot have access to this register because of privacy policy in force.