The informed consent in the veterinary: that does not remain a complete stranger
Foreword on informed consent
Interest in animals is now common to the scientific world, to politics, to the legislative power, even to industry. It is so in a diversified way, according to the interests at stake, the point of observation, the purposes to which it is addressed according to a range of behaviors considered more or less acceptable.
The same animal, be it a dog, a pig, a deer is the recipient of different regulatory treatments justified by the role they have in the community. Which the latter has attributed to them. Differences by no means negligible, at the basis of those differences in the treatment of violations to animal welfare, if there is indeed a significant definition of animal welfare that is not only that considered as such by man.
This interest, even considering the (excessive) enthusiasm for the recent constitutional amendment (articles 9 and 41), cannot fail to involve the issue of informed consent in veterinary medicine. A delicate issue. Often ignored. Perhaps taken for granted. I fear little known, even among insiders. Maybe just misinterpreted. Accomplices rules that contain provisions aimed at recipients who are not well identified.
A vulnus, the underestimation of informed consent, for the same category of veterinarians, towards which I have always emphasized its laudable expertise, but also for the animal – whatever it is – against which that much-claimed duty of protection is no longer valid. . A great lack of respect for the “human” client of the veterinarian.
The meaning of informed consent
Informed consent in veterinary medicine is inevitably linked to informed consent in human medicine. The same is the guiding principle since it makes legitimate what otherwise would not be. However, the differences in application are not irrelevant.
In human medicine, consensus today has greater evidence, albeit with important limitations, which should free it from that perception of bureaucratic-administrative burden that instead, as regards veterinary medicine, accompanies the beginning of an equally important therapeutic path in favor of an animal.
A signature, that of the consent form, not infrequently still confused – if not associated – with the inspection of the cost estimate for the upcoming veterinary services. The history of informed consent and its current discipline (law no. 219/2017) expresses the history of the evolution of medical responsibility.
Since the Cassation of Naples wrote that the doctor is only responsible for the deliberate soul of the underworld (1871) until the approval of the Gelli-Bianco law which introduces the so-called double track (a non-contractual liability for the doctor and a contractual liability of the structure). The primacy of the ars medica (and of a consequential physiological legal impunity) is transformed into what is defined – I don’t really know how much it is actually perceived – therapeutic alliance.
The acquisition of consent to the therapeutic act of the health care practitioner (therefore also of the veterinarian) must be preceded by adequate information in the absence of which there can be no valid consent. The real nerve is all here, in the adequacy of the explanation. Perhaps it is precisely the term used, namely “consent”, To mislead since allowing is not the same as having understood what is proposed to you. When does the doctor’s information become conscious consent? And again, is the information mentioned above made with the language of the listener or the speaker?
Is the doctor capable of placing himself on the same cultural and receptive level as the patient who, otherwise, will continue to perceive that bad feeling of being considered only a number or a name coldly noted in the medical record? Is that consensus expressed always current despite the fact that the therapeutic approach has changed during the course of a healthcare service?
The answers to these questions give us an idea of how complicated it is to talk about informed consent.
Even more so when it comes to informed consent in veterinary medicine. A truly informed consent – and therefore correctly acquired – transfers the risk of complications from the doctor to the patient who, having manifested the complications disclosed, cannot claim anything against the healthcare professional who, it should be remembered, does not gain his immunity from professional liability for the sole fact of having signed an (also) informed consent.
It will not be the patient who has to prove that he has not been informed how much it will be for the doctor to prove that he has correctly informed the patient. Demonstration guaranteed only by a document written and signed by the patient.
Law no. 219 of 2017 and informed consent
The law governing informed consent (which protects the right to life, health, dignity and self-determination of person) seems to have omitted any reference to the veterinary profession. A “venial” forgetfulness that has fueled quite a few controversies. This legislative act has in fact crystallized principles already affirmed by articles 13 and 32 of the Constitution, by any jurisprudence of legitimacy, by the Constitutional Court, by any doctrine.
Even if we want to consider the most orthodox hospital practice, it is difficult to imagine a faithful implementation of the ratio legis sol considering the times that healthcare (public and private) is able to offer and manage. A perspective which, applied to veterinary medicine towards which, as I have already said, the writer has the utmost respect, leads to not negligible reflections.
A veterinary medicine increasingly distant from the poetic image of the veterinarian who intervenes in the most remote places, obtaining in exchange a loving glass of amaro and who approaches – by now equaling them – to the organizational standards of the most advanced (private) facilities for human medicine.
When we talk about informed consent we refer to a series of information that is a prelude to consent and regardless of the difficulty of the type of therapeutic intervention; information that includes the diagnosis made, the prognosis referable to the proposed therapeutic service and the risks or complications of this. Only such structured information makes the patient free to decide in absolute autonomy whether or not to undergo the intervention or therapeutic performance.
The violation of this precept can lead to two different types of damage. A damage to healthwhen it is reasonable to believe that the patient – who bears the related burden of proof – if properly informed, would have refused to undergo the operation and a damage from infringement of the right to self-determination if, due to the lack of information, the patient encounters a prejudicial situation of a patrimonial or non-patrimonial nature different from the infringement of the right to health.
Informed consent in veterinary medicine
There are some obvious differences with human medicine.
The first: if in human medicine the medical act is directed to the same patient who gives his consent, in veterinary medicine the recipient of the information is the owner of the animal while the recipient of the health service is the animal.
The second: in human medicine, informed consent finds its legitimacy in constitutional sources (articles 2, 3, 13 and 32 of our Constitution) and (today) also ordinary (law n. 219/2017); in veterinary medicine it remains limited within (and only by) the code of ethics as there is no legal rule that refers to informed consent as a principle.
It is inevitable to ask whether the consent in the veterinary field expresses only the completion of the contractual (and professional) relationship between veterinarian and client with the only “sanctioning” consequence of an ethical nature. The tendency to go to the judiciary frequently also for veterinary malpractice makes demand not underestimated.
For some commentators informed consent in veterinary medicine, far from presupposing a constitutional protection such as that of the right to health and self-determination, represents the moment in which the therapeutic proposal of the veterinarian and the acceptance of the client meet. Concept summarized in a really effective way by anyone where he wrote that informed consent is born in human medicine, transforming itself as it crosses the threshold of the veterinary clinic, losing the chrism that consecrates it as the expression of a superior good recognized to the human person, to become, very pragmatically, the element on which the validity of the contract is based between veterinarian and client.
Two are and remain the subjects involved, the veterinarian and his client. The animal remains the recipient of the service. A not subject. In hindsight, the eternal dilemma of subjectivity in animals arises again. Is it possible to imagine and argue that the ownership of a right is independent of the condition of a human person, exceeding the limit imposed by our legal system for which the condition of effectiveness of a right is that it can be asserted in court against those who do not they intend to respect it: that is – executable.
According to some, the way out of this impasse would be that of the institution of representation. Although I do not see in this analogy the decisive trait in favor of subjectivity in animals, I recognize a necessary merit. And therefore likewise as happens with minors or those who temporarily or permanently lack the ability to give valid consent, even the owner of an animal, being sentient, but not able to express his will, will be able to give his approval or not to a certain veterinary treatment.
Indeed, I believe that a greater value may have another interpretation. That at the basis of the recognition, in the jurisprudential state only, of the non-pecuniary damage in the event of the death of the pet. An extensive interpretation of the principle now often sanctioned by the courts of merit applied to this specific situation whereby if the patient’s right to formulate informed consent to the intervention belongs to the inviolable rights of the person, and is an expression of the right to self-determination with regard to all the spheres and areas in which the personality of man takes place, even consent in veterinary medicine can no longer be understood as a mere and bureaucratic sort of release for the doctor but rather an expression of maximum protection of the self-determination of the client of the veterinarian himself.
The Constitutional Court (ruling no. 438 of 2008) expressly tells us that informed consent is an expression of conscious adherence to the health treatment proposed by the doctor, a real right of the person “which is based on the principles expressed in article 2.
Animals, the reference is to those of affection, are now recognized in various sentences as components of social systems and participate in the affective dynamics of family environments, capable of influencing their balance and stability. A relationship undoubtedly covered by constitutional protection which includes one of those activities that create the human person that the aforementioned article 2 protects (see, among many others, sent. n. 191/2020 of the Civil Court of Novara).
Those that remain uncertain are the practical results if, with particular reference to veterinary medicine, only entrusted to aseptic and unintelligible modules that do not convey to the recipient a suitable information to place him in the possibility of evaluating it and to authorize or not the medical service.. Thus realizing that unacceptable vulnus of which anticipated in the manner in which it is not respected the dignity of the animal subjected to veterinary careas a sentient being and therefore capable of experiencing, like his human companion, all kinds of suffering.