Considerations on the Liability for Intentional Personal Injury of the Surgeon Who Carries Out Arbitrary Medical-Surgical Treatment: The Italian Case

Abstract

The criminal liability of surgeons is one of the most complex and engaging issues in contemporary criminal doctrine and jurisprudence. This study focuses on the surgeon's liability for personal injury for providing medical-surgical treatment without the patient's informed consent. Over the years, Italian doctrine and jurisprudence have recognized that medical-surgical treatment conducted without the patient's informed consent or in the presence of invalid informed consent constitutes a criminal offence, even though the latter is not expressly provided for by Italian Criminal Law. According to the Italian Court of Cassation, medical-surgical treatment integrates the objective and subjective elements of some criminal offences already provided by the Italian Criminal Code, such as intentional personal injury (Article 582 of the Italian Criminal Code), unintentional homicide (Article 584 of the Italian Criminal Code), or private violence (Article 610 of the Italian Criminal Code). The conflicting jurisprudential solutions proposed over the years on the issue generate a series of perplexities about the medical professional's activities, uncertainty about whether the doctor must intervene in particular cases, and, most crucially, which criminal offence should be applied if he intervenes.