Sull'insanabile conflitto tra autonomia individuale e indisponibilità del bene salute : il caso del TSO per malattia mentale

This essay examines the current Italian law about obligatory health treatments for mental illness in the light of the relevant constitutional provisions. In particular, it argues that, according to an originalist interpretation, section 32, paragraph 2, of the Italian Constitution incorporates a paternalistic approach. However, such an approach has been partially overcome by Italian jurisprudence and case law through the enhancement of two elements, implicit in the constitutional norm: the collective dimension of the right to health and the value of personal dignity. Nevertheless, the author claims that these new interpretations are not suitable to carry out a less illiberal reading of the law about obligatory health treatments for mental illness, but, if anything, they stress its internal tensions, which can be traced back, ultimately, to the conflict between the value of self-determination and that of health. In the last paragraph, the author advances a proposal, de jure condendo, in favour of a more liberal legislation that would protect individual freedom without compromising the therapeutic needs of people suffering from mental illness.