At the origin of the recent ruling of the European Court of Human Rights (ECHR) lies a dramatic clinical case which, unfortunately, is not uncommon. A French patient, in extremely serious conditions and lacking decision-making capacity, had expressed in his advance directives the wish to continue life-sustaining treatment even in a situation of extreme impairment. The doctors, assessing the continuation of care as clinically inappropriate and amounting to therapeutic obstinacy, decided to suspend it. The family challenged the decision, invoking the advance directives. The ECHR considered the choice of the French authorities to be compatible with the European Convention on Human Rights.
The decisive point, however, is not the legitimacy of withdrawing disproportionate treatment, which is widely shared at the ethical level, but the situation that gives rise to the problem: the conflict between the doctors’ medical decision and the clearly expressed will of the patient, albeit in advance form.
It is precisely this conflict – and not the abstract issue of obstinacy – that constitutes the real bioethical crux.
In the French model, endorsed by the ECHR, the judgement of clinical inappropriateness does not represent merely a limit to the duty to treat, but also becomes the criterion that resolves the conflict. The patient’s will is taken into account, but is not decisive: the final resolution remains within the clinical sphere, according to a logic in which the proportionality of care is entirely referred to medical and professional competence.
Italian Law 219/2017 operates on a different level. In Italy, too, patients cannot demand treatment contrary to the law, to professional ethics, or to good clinical and care practices, and unreasonable obstinacy is explicitly excluded. Advance directives therefore never oblige the doctor to clinical obstinacy. However, a judgement of disproportionality does not automatically confer on the physician the power to decide against the patient’s will.
When clinical judgement and advance will collide, the Italian legislator entrusts the resolution neither to the doctor nor to the patient, but to a safeguard procedure that may culminate in recourse to the guardianship judge. From a legal standpoint, the solution appears understandable: it introduces a third party and aims to prevent arbitrary decisions. From an ethical perspective, however, a question remains unanswered: why should the judge’s opinion prevail? The judge is not a care specialist and, in most cases, will decide by relying on the opinions of other specialists, thus indirectly returning to the same sphere from which the conflict originated.
This reflection, however, holds true on one decisive condition: that the assessment of disproportionality of treatment be based exclusively on clinical parameters, that is, on elements falling within the doctor’s specific competence. The determination of therapeutic ineffectiveness, the absence of clinically appreciable benefits or the excessive burden of treatment in relation to expected outcomes legitimately belong to the professional sphere of medicine.
Different, and far more problematic, is the case in which the assessment of clinical obstinacy incorporates considerations of another order: judgements on residual quality of life, on an alleged loss of dignity, on the “unworthiness” of a condition of dependence or extreme impairment. These criteria are not clinical, but anthropological and moral. They do not describe a state of health, but express an evaluation of the value of existence under certain conditions.
When this shift occurs, medical judgement steps outside its specific competence and becomes, in effect, a judgement on the meaning of another person’s life. It is here that the conflict with the patient’s will is no longer merely procedural, but substantive: it concerns not “how to treat”, but “whether and why it is worth continuing to live”.
In this scenario, neither autonomous clinical decision-making nor referral to a purely procedural solution can be considered ethically neutral. If the judgement of disproportionality incorporates extra-clinical criteria, then the issue is no longer who should decide, but on what grounds someone may substitute his or her own vision of life for that of the patient.
The distinction between clinical competence and anthropological judgement is not a theoretical detail, but the true ethical dividing line at the end of life. Confusing them means attributing to medicine a power that does not belong to it; keeping them distinct, by contrast, is the minimum condition for addressing the conflict between care and self-determination without reducing it either to a technical decision or to a mere legal formality.
