Italian law n. 24/2017 on physicians’ criminal liability: a reform that does not solve the problems of the...

For years psychiatrists have been facing the risk of being prosecuted for professional liability. One of the reasons for this situation depends on the fact that professionals cannot rely on clear rules of conduct. Indeed, in psychiatry, it may happen that a judge considers negligent a conduct not punishable by another court, as in cases of hospital discharges. In order to solve this situation, on March 8, 2017 Italian legislators issued the law no. 24. First of all, it establishes that health care providers must follow the guidelines that will be published on the website of the High Institute of Health, with the exception of specific situations on a given case. In the absence of such guidelines, the good clinical-care practice should be applied (Art. 5). In addition, if health care providers have met the guidelines as appropriate to the specific case or, in their absence, to the good clinical-care practice, they cannot be sentenced for homicide or accidental injury due to incapacity (Art. 6). The authors analyze these provisions with the aim of verifying if they are adequate to achieve the purposes that the legislator had set: 1) protecting patients’ health; 2) offering psychiatrists clear rules of conduct in order to reduce the risk of being subjected to criminal proceedings. The first objective is endangered by the fact that the law does not indicate the level of the evidences trustworthiness necessary to make them be considered as binding guidelines. The second objective appears unreachable. In fact, the law under consideration states that only incapacity is not punishable, whereas homicide and lesions caused by negligence or imprudence, even if slight, are considered a crime. In the psychiatric field, more than in other branches of medicine, charges normally concern negligence or imprudence. Therefore, this reform does not limit at all psychiatrists’ criminal liability.