Trattamento sanitario obbligatorio e diritto di difesa

The contribution analyses an order of referral to the Constitutional Court made by the Court of Cassation as judge a quo, concerning the effectiveness of the right of defence in the compulsory health treatment procedure governed by articles 33, 34, 35 of Law no. 833/1978 (the law establishing the National Health Service, which incorporated Law no. 180/1978, the so-called “Basaglia law”). It appears that in the TSO procedure, there is a lack of clarity regarding the notification to the addressee of the mayor’s order and the communication to the patient of the validation of this order by the tutelary judge. Furthermore, the law does not provide for the right of a patient subjected to a measure restricting personal liberty, even if for health reasons and not for reasons of public order, to be “heard” by the tutelary judge. This deficiency in the legislation appears to constitute a violation of the right to defence under Article 24 of the Constitution, a right that the Constitution itself defines as «inviolable at every stage and level of the proceedings».