by Mario Iannucci
04 MAG –
Dear Director,
a few days ago, in Quotidiano Sanità, an article of mine was published on criminal medical malpractice, in which I invited to look very cautiously at the prospect of decriminalizing serious medical malpractice. Immediately afterwards, again on QS, some colleagues replied to me (Angelozzi, Pellegrini and Panti, among those that I know of) disputing my point of view.
The first two, psychiatrists, also criticized me because, according to them, serious psychiatric malpractice should not be prosecuted because in their view psychiatrists, “not having a crystal ball”, cannot foresee and prevent behaviors of their patients with severe mental illness, even when such behaviors represent prognostic developments scientifically predictable of their illnesses.
It is not clear, then, why both of these specialists – one of whom has repeatedly stood up for those who intend to eliminate from the penal code the articles relating to the “total or partial mental defect of the perpetrators of crimes” – immediately took the word to indicate faults and responsibility found upstream of the killing of the Pisan psychiatrist Barbara Capovani. In fact, following their theses, no psychiatrist, since he “doesn’t have a crystal ball”, would have been able to predict and prevent that fatal aggression, carried out by a subject whose dangerous and profound psychic discomfort had already manifested itself widely advance.
But who had evaluated, even from a forensic psychiatric point of view, that discomfort and its potential danger? Maybe some psychiatrist who had had beside him, as a speaker, that future murderer he professed normally Anti-psychiatric “thesis” shared under cover by the psychiatrist himself? And, perhaps, the psychic situation of that subject, now being investigated for murder, had perhaps been reported to a magistrate who, sharing the aforementioned theses always under wraps, was sitting as a speaker at the same conference table? Does anyone really want to ask themselves, without fear of being blamed, why a third of assaulted health workers work in mental health? Is there anyone who wants to ask why more than a third of health personnel attackers have significant or very significant psychic problems?
Some have accused me of not knowing anything about defensive medicine for not having worked in a hospital. In the hospital, in the Psychiatric Diagnosis and Treatment Services and in the Forensic Psychiatric Hospital, I worked for decades. As for decades I worked in that little-known hospital called prison.
Together with Gemma Brandi I was the creator of the first non-custodial residential psychiatric facility for offending psychiatric patients, a facility that I directed for almost eighteen years without ever having any professional inconvenience. And it never occurred to me to resort to useless diagnostic investigations for fear of having to defend myself one day against criminal charges for malpractice.
Of course: I have always made an effort to carry out my work competently, that is to say with prudence, diligence and skill, as I think every healthcare professional who deals with the health and life of his patients must do; in the case of a psychiatrist also the health and life of third parties. I made an effort to do so, often resisting the inopportune and dangerous pressures of absolutely incompetent superior colleagues, who, however, claimed, authorized to do so by their role, to be the ones to give direction to my professional activity and that of my collaborators. I know how difficult it is to resist these pressures, but I have always kept in mind the shining examples of Matteotti, Ginzburg, Dostoevsky or Solzhenitsyn (without pretending to reach such heights).
Competence, therefore, as a guiding star. A skill (and expertise) that I have found not to be present (at least in my sector) in some of those whom the prosecutors and courts call as technical consultants. A skill that is lacking in those who claim to deal with the issue of criminal liability for medical negligence (and not for malice!) by saying that Italy is one of the few countries (“together with Poland and Mexico”) to maintain this profile of responsibility, without knowing that instead this profile continues to be present in many other legislations, in the Spanish one to give an example close to us. Even in the countries of common lawmoreover, the malpractice medical, which is mainly regulated in the civil sphere of the tortscan be prosecuted when it depends on gross neglicence. But the incompetent continue to equate Italy only to Poland and Mexico!
The fact that in Italy, much more than in other countries of civil lawthere is an unbridled appeal (moreover very spectacularized by the media) to criminal complaints (which fortunately result in convictions much more rarely) for medical negligence, must necessarily lead the legislator to find sensible ways to curb this malpractice, which I took the liberty of attributing Also to the incredible plethora of lawyers in our country (“there are more lawyers in the province of Rome than in all of France”).
Someone has judged inconsistent, with regard to the penal relief of medical negligence, my reference to caso Tarasoff, that is to say the duty that the law establishes for a psychiatrist (in the USA but not only) to promptly inform and protect the potential victims of a dangerous patient (who may be raving about persecution). I consider my reference to the caso Tarasoff is relevant and relevant to the matter we are dealing with.
I don’t know if it is, for example, with regard to the recent homicidal attack on the Pisan psychiatrist. I am sure of one thing: in similar cases I would be very pleased if the judiciary deems it needs specific technical advice, this is done by measured and competent colleagues, who do not evaluate, for example, the situation through a “crystal ball” ” and did not believe that, if four psychiatry technicians were called to carry out an expert report, “five different opinions” would be obtained from them, which in other words would not make it laughable. No: I firmly believe that in medicine (and psychiatry is a branch of medicine) it is absolutely possible, and that it is therefore necessary, to formulate rather precise diagnostic, therapeutic and prognostic indications (also in terms of social danger, as regards the prognosis psychiatry).
One last codicil for Antonio Panti. It is certainly possible that Minister Nordio, when he argued that “the complete decriminalization of professional fault is impossible in the Italian legal context”, “had not yet calculated the forces in the field”.
Maybe so. In the meantime, I am delighted that my humble opinion has been supported by such an expert and competent personality, who I believe plays that role with full knowledge of the facts (it is appropriate to affirm it). It is a pity that the same cannot be said for ministers who, even in the recent past, have held the same role in other sectors.
The hope is that, starting from their undoubted skills, the top Italian government officials in such compromised sectors as justice and health will be able to adopt suitable “therapeutic” measures. Aiming for the good of the community and without necessarily caring too much about the “forces in the field”. Even in the composition of the ministerial tables (especially on Mental Health) it is good not to take too much account of all the “forces in the field”, but it is at the same time essential to rely on the skills demonstrated in the field. In short, the Leone Ginzburgs are not excluded, please!
Dr. Mario IannucciPsychoanalyst psychiatrist
Expert in Mental Health applied to Law
04 maggio 2023
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