The absurd case of the ten doctors under investigation, on the basis of ‘hindsight’, for refusing to assist in a suicide

We might call it the end-of-life paradox. For the first time in Italy, ten doctors are under investigation for failing to allow a terminally ill patient to undergo assisted suicide in 2023, but the investigation is based on an interpretation provided by the Constitutional Court only in 2024 – that is, after the woman had already died. The case concerns Sibilla Barbieri, a Roman film director and writer suffering from an irreversible cancer. In the summer of 2023, she asked ASL Roma 1 to assess whether she was eligible for medically assisted suicide. The doctors refused, on the grounds that one of the conditions set out by the Constitutional Court in its 2019 ruling – which governs the matter in the absence of specific legislation – was not met: namely, that she was being kept alive by ‘life-sustaining treatment’. Barbieri then decided to go to a clinic in Switzerland, where she died on 31 October 2023 after undergoing assisted suicide. She was accompanied by her son and former senator Marco Perduca, with the help of Marco Cappato; they were subsequently investigated and acquitted of aiding suicide. Almost three years later, ten doctors from ASL Roma 1 are now under investigation. 

The investigation into the doctors was launched following a complaint lodged by Barbieri’s family against the local health authority (ASL). At the conclusion of the investigation, the Rome Public Prosecutor’s Office had requested that the case be dismissed, but the investigating magistrate upheld the objection lodged by Barbieri’s family and has scheduled a hearing for 16 December at which a decision on how to proceed will be made. The alleged offences include, in various respects, refusal to perform or omission of official duties, private violence and torture.

The great paradox of the whole affair is that, at the time, constitutional case law had by no means clarified the concept of ‘life-sustaining treatment’ (which, incidentally, remains not fully defined even today).

In 2019, the Constitutional Court ruled that assisted suicide may not be punishable, under certain conditions, when the person is suffering from an irreversible condition, is experiencing intolerable suffering, is capable of making free and informed decisions, and is ‘kept alive by means of life-sustaining treatment’. That ruling, however, did not precisely define what should fall within this category. The requirement was therefore already in place, but the boundaries within which treatment could be considered essential for keeping the patient alive remained unclear.

The issue was addressed by the Constitutional Court in 2024. In Judgment No. 135, the Court clarified that life-sustaining treatment does not necessarily have to involve a machine or device, but may also include certain procedures carried out by healthcare staff or family members, such as urinary catheterisation, manual bowel evacuation or mucus suction, where these are necessary to maintain vital functions and their discontinuation could lead to death within a short period of time.

Sibilla Barbieri was not being kept alive by ventilators or mechanical respirators, but as a terminally ill cancer patient she was undergoing drug treatment. By the time she travelled to Switzerland, she had become dependent on oxygen therapy and was taking significant doses of painkillers. Barbieri’s family believed that the local health authority should have reassessed the situation in light of this deterioration.

The first paradox is clear: doctors at ASL Roma 1, following a decision taken in 2023, are under criminal investigation on the basis of a clarification from the Constitutional Court issued in 2024, in accordance with a sort of retroactive case law based on hindsight. But there is a second problematic aspect. Even if the Constitutional Court’s clarification had been issued before Barbieri’s request to ASL Roma 1, it is by no means certain that the doctors’ assessment would have been a foregone conclusion. Barbieri was taking medication for her condition and had become dependent on oxygen therapy, but determining whether and which of these treatments met the requirement of ‘life-sustaining support’ would still have required a concrete assessment by the doctors.

The Constitutional Court’s own case law is by no means clear. Suffice it to say that, in a judgement handed down in July 2026, the Court clarified that the concept of ‘life-sustaining support’ includes various types of replacement of bodily functions, but does not automatically extend to those receiving simple treatments or medication that are not immediately life-saving. In short, the fact that a patient is taking high-dose opioids to manage pain does not, in itself, mean that those opioids are ‘keeping them alive’. The assessment regarding the use of oxygen therapy is more complex, but even in this case it should be borne in mind that this can only be considered a life-sustaining treatment if, without it, the patient is unable to maintain respiratory function compatible with life.

The point, then, is simple: one may debate whether the Local Health Authority erred in its assessment of Sibilla Barbieri’s case, but to turn that decision into an alleged offence on the basis of a notion of ‘life-sustaining treatment’ – which the Constitutional Court itself would only clarify later – is to attach a weight to hindsight that, in criminal law, should have very little place.