Medical Flashcards on Italian Penal Code

This document is a list of flashcards pertaining to Italian Penal Code, its definitions and applications in medical settings.

Legal Phenomena

Events to which laws connect legal consequences, such as purchase, loss, or modification of a right.

Lawful Human Acts

Actions of a person, actions of two or more people, provisions

Illicit Human Acts

Penal (crime), civil (wrong), procedural, administrative, moral, religious, or social acts.

Juridical (criminal) System

Complex of norms (rules) that regulate social relationships and man's actions in social life.

Private Law

Rules that regulate relations between citizens.

Public Law

Rules that regulate the functioning of the State and the relations between citizens and the State itself (public bodies).

Public Law Examples

Constitutional, administrative, criminal/penal*, international, ecclesiastical.

Criminal/Penal Law

Two parties, one public and one private who confront each other on personal freedom (detention, imprisonment).

Private Law Examples

Civil, commercial, labour.

Civil Law

Two private parties confronting each other for economic reasons.

Criminal Law and Penal Code (P.C.) Main Purpose

To guarantee/ensure/preserve the tranquility of the res-publica (the Italian Republic) with a braking action on human acts/activities through a regulation (the Penal Code).

Criminal Law Tools

Punishment system, security measures (prevention, care, social rehabilitation of the offender).

Crime (Definition)

The violation of the criminal law, any act to which the legal system associates a penalty as a consequence.

Rule Contents

Command, guarantee.

Characters

Imperative, taxa4ve.

Species

Incriminating, discriminatory, declara(ve or explanatory, interpreta(ve and referral rules.

Parts

Precept, sanction.

Types

Perfect, imperfect.

Principles of Applying Criminal Law

Legality, reserve of the law, analogy (prohibition of…)

Principle of Legality

Guarantee of the law with limits to JUDICIAL power in relaHon to the determinacy/taxaHvity.

Principle of the Reserve of the Law

Guarantee of the law with limits to the EXECUTIVE power … there is no law that indicates the Hme limits of the provision as the Parliament is the only body with the LEGISLATIVE power.

Principle of Analogy

Only in relaHon to cases regulated by the law or favorable to the agent ('ANALOGY in bonam partem ').

Ignorance of the Penal Law

Art.5 p.c. (presumpHon of knowledge of the law).

Interpretation of the Criminal Law: Subjects

Authenticate (legislator), judicial (jurisprudence), and doctrinal (scholars).

Interpretation of the Criminal Law: Means

Grammatical (literal-syntacHc… objecHve) and logic ('raHo legis').

Interpretation of the Criminal Law: Results

Extensive (expansion of the principle, beyond words… for 'pracHcal purpose') and restricHve (limitaHon-concentraHon of the principle… for 'pracHcal purpose').

Effectiveness of the Criminal Law: Limits

Time, space, people.

Principle of Retro-Irretroactivity

Art. 2 criminal code; 25 of the ConsHtuHon (the law provides for the future … to guarantee the ciHzen against the LEGISLATIVE power).

Principle of Territoriality

ArHcles 3, 4, 6 p.c.

Principle of Extradition

Art. 13 pc; 10 Const.

Principle of Immunity or Prerogative

No privileges (concerns the insHtuHonal office*).

Classification of Crimes

By intent, negligence, or preterintentiion; damage or danger; commissive or omissive; consumed or tempted; uni or pluri-subjective; common or exclusive; of conduct or of event (material); prosecuted by complaint or by the office.

"Complaint"

Art. 336-337 p.p.c.

"Ex Officio"

Arrt. 330, 331 p.p.c.

Damage

Personal injury.

Danger

Disclosure of professional secrecy; Treatment suitable to suppress the consciousness or the will of others.

Commissive

Homicide.

Omissive

Omission of office duties; Mother who kills her child by not feeding him.

Consumed Crime

When the event occurs.

Tempted Crime

When the action does not take place or the event does not occur.

Uni / Pluri-subjective

Brawl: when several people fight each other.

Common / Exclusive

For healthcare professionals: failure to report.

Conduct

Omission of rescue.

Article 56 of the Criminal Code (Attempted Crime)

Anyone who performs suitable acts, aimed in an unequivocal way to commit a crime, is liable for an attempted crime if the action is not performed or the event does not occur.

Article 348 p.c. (Abusive exercise of a profession)

Anyone who practices a profession illegally, for which a special state authorization is required, is punished with imprisonment of up to six months or with a fine ranging from one hundred and three to five hundred and sixteen euros.

Article 336 Complaint

A complaint shall be submitted by means of a statement in which the complainant requests the prosecution of an act deemed an offence by law.

Article 337 p.p.c. Formality of complaint

A complaint shall be submiSed, as set forth in ArHcle 333, paragraph 2, to either the authori4es to whom a report may be submiHed or a consular officer abroad.

TITLE II NOTITIA CRIMINIS ArHcle 330 p.p.c. Acquisi4on of no44ae criminis

The Public Prosecutor and criminal police shall acquire noHHae criminis on their own iniHaHve and receive noHHae criminis that are submiSed or forwarded according to the following ArHcles.

ArHcle 331 p.p.c. Report by public officials and persons in charge of a public service

Without prejudice to the provisions of ArHcle 347, public officials and persons in charge of a public service who receive informaHon about an offence subject to prosecu4on of the Public Prosecutor’s mo4on, while carrying out or because of their funcHons or their service, must report it in wri4ng, even if the alleged perpetrator of the offence is not idenHfied…

SubjecHve or psychological element

Intentional (according to the…) / Culpable (against to the…) / PreterintenHonal (beyond to the…)

Objective or material element

The fact, the event that may be missing in the aSempted crime

incidental or circumstanHal elements of the crime

AggravaHng circumstances, miHgaHng circumstances

Article 61 p.c. (Common aggravaHng circumstances)

acted with abject or fuHle moHves

“To execute or conceal another offence, or in order to obtain or ensure for oneself or others the product or profit or the price or the impunity of another offence”

AggravaHng the offence, when they are not its consHtuent elements or special aggravaHng circumstances [578 3, 579 3], the following circumstances: acted with abject or fuHle moHves

“In culpable offences [43], acted despite foreseeing the event”

AggravaHng the offence, when they are not its consHtuent elements or special aggravaHng circumstances [578 3, 579 3], the following circumstances: to execute or conceal another offence, or in order to obtain or ensure for oneself or others the product or profit or the price or the impunity of another offence

“Torture, cruelty to persons”

AggravaHng the offence, when they are not its consHtuent elements or special aggravaHng circumstances [578 3, 579 3], the following circumstances: In culpable offences [43], acted despite foreseeing the event

“Against public official or person of public service or priest/religious minister or diplomat of foreign state”

AggravaHng the offence, when they are not its consHtuent elements or special aggravaHng circumstances [578 3, 579 3], the following circumstances: torture, cruelty to persons

ArHcle 62 p.c. (Common miHgaHng circumstances)

The following circumstances shall miHgate the offence, when they are not consHtuent elements or special miHgaHng circumstances: having acted for reasons of par4cular moral or social value

“Having acted by sugges4on of a crowd in an uproar, when it is not a quesHon of meeHngs or assemblies prohibited by law or by the Authority, and the offender is not a habitual or professional offender or a delinquent by tendency”

The following circumstances shall miHgate the offence, when they are not consHtuent elements or special miHgaHng circumstances: having acted in a state of anger, brought about by an unjust act of another;

ArHcle 52 p.c. (LegiHmate defense).

Those who commiSed the crime because they were forced to do so by the need to defend their own or another's right against the current danger of an unjust offense are not punishable, provided that the defense is proporHonate to the offense…

ArHcle 50 p.c. (Consent of the enHtled person).

Anyone who violates (infringes) or endangers* a right with the consent of the person who can validly dispose of it**, is not punishable (579-580 p.c.; 5 c.c.).

Article 32 Const.

The Republic safeguards health as a fundamental right of the individual and asa collecHve interest…

ArHcle 579 p.c. (Murder of the Consen4ng Person)

Whoever causes the death of a man, with his consent, shall be punished by imprisonment from six to fiueen years.

CONSTITUTION DE L’ORGANISATION MONDIALE DE LA SANTÉ (WHO)

That the following principles are basic to the happiness, harmonious rela4ons and security of all peoples: Health is a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity.

Therapeutic obstinacy

Treatment of documented ineffectiveness in relation to the objective, compounded by the presence of high risk and/or special burdensome to the paHent with additional suffering, where the exceptional nature of the means employed is clearly disproportionate to the objectives of the specific condition

ArHcle 18 p.c. (Naming and classificaHon of major penalHes)

Under the name of custodial penalHes or penalHes restricHng personal freedom the law includes: life imprisonment, imprisonment and arrest.;Under the designaHon of pecuniary penalHes the law includes: the payment and the fine”.

Under the designaHon of pecuniary penalHes the law includes: the payment and the fine”

ArHcle 19 p.c. (Accessory penalHes: species): The accessory penalHes for Crimes are: o 1) disqualificaHon from public office [32]; o 2) disqualificaHon from a profession or an art [30];… no longer be able to pracHce the profession

off label

The use in clinical practice of drugs already registered but used in a way that does not comply with the provisions of the summary of characteristics of the authorized product

No one can be punished for an act designated by law as an offense if the harmful or dangerous event on which the existence of the offense depends was not a consequence of his own action or omission

48 p.c. (Causal relationship*):

obligation to guarantee

A legal obligation (duty), incumbent on persons (previously) provided with legal powers suitable for preventing offensive (harmful- dangerous) events of other people’s rights/interests*, entrusted to their protection due to the inability of the owners to adequately protect them…

obligation to activate

A legal obligation (duty) to activate for the protection of certain rights/goods, imposed by an incriminating rule on subjects who are deprived of pre-existing impeding legal powers

Art 41 c.p. (Concurrent of causes)

The concurrence of pre-existing or simultaneous or supervening causes, even if independent of the culprit's action or omission, does not exclude the causal relationship between the action or omission and the event.

This condition, according to the orientation accepted by the jurisprudence of legitimacy, occurs in the presence of a completely autonomous causal process or a process not completely divorced from the antecedent

Supreme Court Judgment No. 4560 October 5, 2017:Under the rules dictated by Article 41 p.c., there is a substantial equalization, on a normative level, between all causal factors, pre-existing, concomitant and subsequent; so that the presence of a given factor excludes the others only when it is supervening and alone sufficient to determine the event.

Conditionalistic Theory

Conditio Sine qua non. Every single condition, without which the event would not have occurred, is the cause of the event. The ascertainment of the causal link takes place through the hypothetical counterfactual judgment (contrary to the facts) conducted with the so- called mental elimination process.

Theory of Adequate Causality

It is necessary that the agent determined the event by an adequate action, i.e. suitable (sufficient) to determine the effect according to criteria of normality assessed on the basis of common experience

Theory of Human Causality

caused by man only those events that man can dominate by means of his cognitive and volitive powers; therefore, exceptional events, i.e., those that had minimal probability of occurrence, remain excluded from this scope.

Theory of Scientific Causality

Identification of causation in the subsumption under scientific laws.

Occasion

It is the so-called Droplet that caused the beaker to overflow representing the small risk of triggering.Example the pathological fracture of the femur when standing up from a chair in a carrier of unrecognized osteosarcoma, or the myocardial infarction in patients with coronary artery atherosclerosis and hypertension during coitus

Coincidence

There is an apparently causal relationship, but instead, merely temporal. I.e.,death by acute myocardial infarction of a patient during an ophthalmological examination

Topographical Criterion

Considers the topographic relationship with the lesion or region affected

Chronological Criterion

Concerned with the time interval between the action or omission and the onset of the first manifestations of the disease

The statistical-scientific (probabilistic) criterion

Criterion concerns the statistical concordation of observation data

Nomophylactic function

the task of guarantee the exact observance and uniform interpretation of the law, the unity of national objective law”

Begründetheit

The identification of causal relationship in court through a judgement of merit

Supremecourt

A judgement of legitimacy, with nomophylactic function, implemented through a pronouncement of the united sections

DifferenHaHon of causal finding

Civilistic field: Causal normality is said to occur with a high degree of probability close to certainty, while in the criminal (penal) field: Rational credibility, logical probability is based on conformation through the use of rational and empirically controllable methods of proof

Art 530 p.p.c.

the code of guarantee in dubio prom reo, which indicates that any plausible doubt means the sentence will favour the accused

Art 533 p.p.c.

to act for the purposes of institutional accreditation of healthcare activities

Requirements For Prosecution ArHcle 336 and 337

The requirement that legal cases are prosecuted by complaint and Formality of complaint that all cases need to be acquired through notifications

Part 2 honorTitle XII protection of essential assets of the individual

Part I lives and safety; life and individual safety

Article 581 beatings

Anyone who beats someone without causing illness

Disease according to art 582 Penal

Encompasses any anatomical or functional alteration that grafts a significant pathological process, even if not definitive

Legal definition of injury Artt 582-583-583 p.c.

Describes the cases in which medical personel can be punished for the practice of procedures in relation to childbirth

Cephalohematoma

A preterintentional personal injury for the P.C.? and, or a preterintentional homicide, but less serious?

Mobbing

A series of vexatious acts or behaviors, protracted over time, carried out against a worker by the members of the work group in which he is included or by his boss, characterized by an intent of persecution and marginalization

Harassment

Anyone who, with repeated conduct, threatens or harasses anyone

Gelli Bianco Law

If the acts referred to in Articles 589 and 590 are committed in the exercise of the health profession, the punishments provided therein shall be applied except as provided in the second paragraph,No punishment if malpractice but followed the guidelines

On call Ready Availability

The service of readiness is characterized by the immediate availability of the manager and the obligation of the same to reach the garrison

Imputability

Anyone who at the time of the criime had such a defect making him not able to understand willis excused from a punishability

Inability to understand the crime under the right circumstances

Having acted with reasons of moral or social values, having acted in a state of anger..