The right to health in Italy

The right to health in Italy

With the arrival of the Covid-19 pandemic, it is now essential to clarify the scope of the notion of health within our legal system.

The evolutionary path of the concept of health in Italy has been characterized by multiple cultural factors that have reflected on the idea of ​​the law itself.

Unlike the liberal conception of health in the 19th century, according to which it was a simple problem of public order, today, health has a much broader field of action, guaranteeing not only individual health but also collective health, trying to remove all the obstacles that undermine the coexistence of the individual in the society in which he lives. Too, today the right to health escapes the simple vision of the absence of status pathological, involving, in the era of the welfare state, also the financial sphere.

Because the notion of the right to health, the only right expressly defined by the Constitutional Charter as “fundamental“, must be understood as that provided for in Article 32 of the Constitution, according to which”The Republic protects health as a fundamental right of the individual and in the interest of the community and guarantees free medical care to the indigent. “

The constitutional provision to which reference is now made concretely obliges the State to encourage any behavior aimed at the best possible protection of the right in question, both individually and globally. Indeed, by declaring that health is also a collective interest, article 32 of the Constitution expresses, at the same time, the attention of the partners towards the commitment and the role that the individual is called upon to play towards them, in the hope of an improvement of civil society.

Considered from a legal point of view, Article 32 of our Basic Law is defined as both a prescriptive and a programmatic provision..

From the first point of view, it fits into the perspective of a subjective right, or in the claim of the individual towards the State for its effective protection. Examined under the second aspect, Article 32 is of a nature programmaticsince it engages the legislator on various intervention plans in the field of health, based on research as well as commitments related to the organization of health.

Furthermore, a careful reading of the health provisions of the Constitution shows that health is inalienable, unavailable and valid. erga omnesinvolving both Italian and foreign citizens.

The right to individual and collective health, protected by the intervention of the State, is added to the other guarantees always conferred at the constitutional level.

Think of Article 2 of the Constitution, in the part where the Republic guarantees the inviolable rights of man, both as individuals and within social formations, or the provisions of Article 3 of the Constitution given by the fact that health is linked to the right to a dignified existence or to personal dignity.

As mentioned earlier, the current scope of the right to health is not found in any 19th century liberal Constitution, such as in the Albertine Statute. However, from a historical-comparative point of view, it seems that only the Weimar Constitution refers to the “safeguard of health” even if it does not explicitly recall the claim of the citizen and the associates to an intervention of the State .

Our Constitutional Charter is therefore the only one, among those contemporary, to provide for a complete discipline of the right to health, elevating it, in the first instance, to constitutional importance and, subsequently, giving rise to a clear claim on the part of associated with state interventions to prevent or remove harm to them.

However, it should be noted that, despite its innovative scope in the field of individual guarantees, the provisions of Article 32 of the Constitution remained unapplied for about twenty years, not being the subject of particular attention. both in the jurisprudential and doctrinal world.. The right to health therefore continues to be interpreted in terms of public order, without considering it as a subjective right.

It was only with the entry into force of the Constitutional Court that the idea of ​​health care in Italy changed, interpreting the right to health as a real subjective and community right, therefore bringing about changes also in the legislative level.

In fact, the first real implementation of the constitutional provision began with the approval of Law no. 883/1978, a true milestone of today’s National Health Service.

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