Guaranteeing Access to Palliative Care between National Law and Emerging International Legal Framework: An Overview of the Italian and Spanish Experiences
According to the World Health Organization’s Constitution (WHO), “[h]ealth is a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity” (Preamble, first basic principle). This broader concept of health and the considerable increase in the scientific and technological progress of medical treatments inevitably impact, on one hand, the legal duties of physicians, and on the other hand, the rights of patients. If we consider that the best attainable standard of health that a patient could reach depends on the access to and on the type of treatment that he could receive, it is interesting to analyze if and in what measure any legal provision is due at the national and international level in order to identify the duty of physician to ease the suffering of patients (especially at the end of life), as well as to define and eventually guarantee any existing right of patients to have access to palliative treatments, in accordance with their respective health situation.In other words, is there any existing international legal standard defining “palliative treatments”? Is there a sort of a right to have access to palliative treatments? If yes, under which limitations? The present analysis will try, inter alia: to summarize the emerging legal standards at the international level, taking into account any applicable limitations under the United Nations Single Convention on Narcotic Drugs of 1961 and other applicable rules; to analyze and compare the Spanish and Italian experiences, both at the Constitutional and Legislative level, taking into account the relevant territorial distribution of competences in order to assign respective responsibility. We firstly conclude that under international law (especially under international human rights law), States have an obligation to adopt measures to create efficient health systems, including the delivery of palliative health treatment. In the light of the first conclusion and as a consequence, States autonomously regulate the duty of physicians and the system architecture necessary to guarantee effective implementation of the patients’ right to have access to palliative treatments.