Bureaucracy cannot stop a doctor: the TAR rejects the Hope and Watchful Waiting protocol
“It is the essential duty of every healthcare professional to act according to science and conscience, taking responsibility for the outcome of the therapy prescribed as a consequence of the professionalism and specialist qualification acquired. The AIFA prescription, as borrowed from the Ministry of Health, therefore contrasts with the required professionalism of the doctor and with his professional ethics, imposing, indeed preventing the use of therapies which the latter may possibly consider suitable and effective to contrast with Covid-19 disease as it happens for any therapeutic activity. "
This is the decision-making and conceptual heart of the recent and acceptable sentence of the Lazio Regional Administrative Court, section III-quater, n. 419/2022, which canceled the circular of the Ministry of Health in the part in which it incorporated the AIFA guidelines: out of legal-administrative language, the infamous protocol on active surveillance or “watchful waiting”, if you prefer.
While waiting for the appeal to be brought to the Council of State which could turn the situation over for the umpteenth time, some considerations are necessary.
That of the TAR is a particularly important ruling: yet another point of arrival in an authentic saga that for two years has opposed doctors who have always contested the ministerial protocol and state bureaucrats. Already in 2021, with ordinance no. 1412/2021, the Lazio TAR had raised the fundamental question of the very essence of the medical profession: no administrative act can prevent the doctor from exercising his own patient care activity, according to the founding lines of medical ethics and according to the evolution itself of medical science.
The Council of State, as an appeal body, has consequently had several occasions to express itself on the AIFA guidelines, subsumed in the plurimately contested ministerial circular: not always and not only for the watchful waiting, it must be said, but the framework which results from the measures suggests the chaos into which the ministerial bureaucracy itself has fallen.
With ordinance no. 7097/2020, for example, the Council of State, Section III, had disavowed the AIFA guidelines, in the part in which they prohibited the off-label use of hydroxychloroquine. Lastly, in 2021, with ordinance no. 2221/2021, the supreme body of the administrative judiciary had instead overturned the previous precautionary order of the TAR which had suspended the "watchful wait": in this last case, the argument of the judges of Palazzo Spada, as well as being scarcely convincing, had lapsed the logical aporia.
Because, according to the Council of State, "the nature of the contested act leads to the exclusion of the existence of profiles of prejudice with the attribute of irreparability, since the AIFA note does not prejudice the autonomy of doctors in prescribing, in science and awareness, of the therapy deemed most appropriate, where its suspension until the definition of the judgment of merit determines on the contrary the lack of guidelines, based on scientific evidence documented in court, such as to provide an aid (albeit not binding) to such space of prescriptive autonomy, however guaranteed ". The logical aporia complained of lies in the total lack of consideration of the exemption value of the guidelines, which is instead clearly present in the argument of the TAR.
In fact, in all the judgments and ordinances accumulated up to now, the problem of the cogency of these guidelines and their enforceability has arisen: all the judges recognize that, by their very nature, they do not prevent the professional from departing from them, acting according to the basic foundation of their medical profession and the evolution of scientific knowledge and, above all, assuming the responsibilities resulting from their prescriptions and decisions. The AIFA guidelines and the sequential ministerial order cannot, and never could, prevent the doctor from operating in any case, even in a different manner, to protect the patient.
But here we find the real sore point and that differentiates the conceptual architecture of judicial rulings which, on the contrary, in a semantic key, would all seem to drink on the same terms. According to the first care judges who suspended or canceled the circular, it is undoubtedly true that the doctor could deviate from the circular and treat differently from it, but it must be taken into consideration that the guidelines operate as an exemption in key to recognizing both civil and criminal liability: in other words, the doctor could certainly depart from it but will be indirectly discouraged from doing so, because he should do so he could then respond in both civil and criminal matters.
As the TAR judges correctly point out, unlike the Council of State, the circular would instead operate as a 'shield' and as at least a partial shield, encouraging doctors to follow in a slavish manner the guidelines established by the bureaucrats of Lungotevere Ripa, in order not to incur in legal liability, both compensatory and criminal.
The question of the legal qualification of the guidelines, which punctuates the general debate on the guidelines, concerns the increasingly long-standing question of the penetration of soft law into the womb of the legal system : on the rising wave of a growing and adaptive fluidity of society, law itself has demonstrated, from the perspective of the sources and its constituent elements, a porosity that has led to the foundation of increasingly complex and enigmatic regulatory frameworks .
No longer, in other words, the law, the administrative act, but also notes, operational guidelines, guidelines, with a tendential entropy that does not help legal certainty and above all the adequate contextualization of these new elements that end up interpolating the hard core of law.
In the labyrinthine and confused consistency of a pandemic, this metanormative chaos far from constituting an element of adaptability and fluidity of the right to the constantly evolving social and medical reality has become a complicating factor, in fact paralyzing the free initiative of doctors, for reasons that we will see.
Here there are two kinds of considerations: one of a political nature, and the other concerning the medical profession and its methods of exercise.
As regards the first point, retracing the judicial saga it can be seen how the pandemic was in fact bureaucratized: caged and boxed within the inert ministerial language, it remained firm, crystallized at that 2020. And indeed all this appears absurd and of unusual gravity. Because today's situation, in 2022, is not and cannot even remotely be considered similar to the incandescent one that raged during 2020, when the pandemic was in its infancy, unknown and unexpected.
There is therefore an enormous responsibility here on the part of the Ministry and its owner, Roberto Speranza, who never seem to have ever actively worked to radically update the operational protocols; something that would not only be made mandatory by now by the change in the overall context, in the medical and pharmaceutical knowledge acquired in recent months, but also by the various judicial rulings that have, conceptually speaking, denuded the overall fallacy of those protocols.
And it certainly makes an impression having to read, scrolling through the most recent TAR ruling, how the "content of the ministerial note, imposing punctual and binding therapeutic choices on doctors, is in contrast with the professional activity as delegated to the doctor in the terms indicated by science and professional ethics " .
In this sense, inertia as a privileged conduct seems to be an indispensable topos of the political world and health bureaucracy: think of the very thorny case of the failure to update the national pandemic plan, another emblematic case of a decision-making immobility with disturbing implications.
The lack of a severe political controversy aimed at recalling the real responsibilities of Minister Speranza, whose only outcome should be the resignation of the same, perhaps the result of this lack of the climate of general political ridicule due to 'national unity', in the light of judicial rulings , of the age of the operational medical protocols envisaged by AIFA and the Ministry, however speaks volumes about the general inability to systematize the drama of the overall context, indulging in serious analysis and in a sense of responsibility and lucidity in drawing conclusions.
Then there is a second aspect and it is the one that concerns the concrete way of exercising the medical profession: the pandemic has spread in an even more evident and ferocious way the difference between a conscientious doctor, who we could define as a doctor-doctor, and from on the other hand, the medical-bureaucrats, who are bound only by the concern to comply with the ministerial notes without asking the fundamental question of the real care and health of their patients.
Doctors who have never visited their patients, and who have liquidated them over the phone by 'prescribing' only a forerunner of self-surveillance and in the case of the onset of some symptoms only getting by with Tachipirina . While on the other hand, doctors who, challenging precisely the ministerial circular, and therefore taking full responsibility for their choices and prescriptions on their shoulders, were really interested in the clinical and symptomatic picture of their patients.
The post Bureaucracy cannot stop a doctor: the TAR rejects the Hope protocol and watchful waiting appeared first on Atlantico Quotidiano .
This is a machine translation from Italian language of a post published on Atlantico Quotidiano at the URL https://www.atlanticoquotidiano.it/quotidiano/la-burocrazia-non-puo-fermare-un-medico-il-tar-boccia-il-protocollo-speranza-e-vigile-attesa/ on Mon, 17 Jan 2022 03:52:00 +0000.