Il consenso del minore al trattamento medico in prospettiva comparatistica: un nuovo soggetto di diritto?

Abstract

The research analyzes in a comparative perspective the new role recognized to the minor thanks to the juridical relevance of his will with particular reference to some recent jurisprudential rulings both of the Suprême Court, in the English system, and of the Court of Cassation, in the Italian law.  In this new perspective, the minor is increasingly considered the centre of imputation of rights and duties and less perceived as a weak subject, whose protection is traditionally entrusted to parents or, in case of their absence, to other substitute figures. In this new approach, the minor seems to play a new juridical subjectivity and his will must be increasingly taken into consideration as it represents the starting point of any decision that concerns him, especially with regard to decisive choices for his own life, such as in the case of informed consent to medical treatment.  From a comparative perspective, a new conception of the minor, no longer seems to appear in the private sector - and in particular in English and Italian legal systems, which take into consideration the best interest of the child, but a real subject of law, author of his own destiny. This approach is based on two key points: 1. the fundamental principle of non-discrimination, reaffirmed both internationally and nationally in the examined legal systems (English and Italian) with a particular reference - in addition to gender, race, language and religion - to age; 2. the minor as a subject of law through the recognition of the juridical relevance of his will in previously unthinkable areas, including the sensitive sphere of health treatment.