1. The present situation
In order to fully understand the consequences which would result from the approval of the bill that, among other things, repeals the ban on reporting to the police of the names of irregular foreigners who go to a health facility, it is necessary to look briefly at the current regulatory framework.
The essential starting point must be the constitutional law:
– Art. 2 “The Republic recognises and guarantees the inviolable rights of the person… and expects that the fundamental duties of political, economic and social solidarity be fulfilled.”
– Article 32 “The Republic safeguards health as a fundamental right of the individual and as a collective interest, and guarantees free medical care to the indigent.”
The constitutional laws mentioned are mandatory in that they refer to inalienable human rights. The constitution deals with right the Republic “recognizes” and does not “grant” in relation to specific situations or preconditions.
Legislative Decree 286/98 (immigration single text) provides that:
– Art. 2, co. 1 “any foreigners nevertheless present at the borders or in the territory of the State are granted the fundamental human rights provided for by national legislation, as well as both the international conventions currently in force and the principles generally recognised by international law. “It is easy to see that the term “nevertheless present” includes both regular and irregular foreigners.
– Article 35, co. 3 ” Foreign citizens who are present in the national territory but have not complied with the legislation regulating entry and residence, are guaranteed urgent and essential clinical and hospital care in publicly accredited medical facilities, as well as ongoing care for illness and injury. In addition, they are covered by programs of preventative medicine and those for the protection of individual and collective health.”
– Article 35, co. 5 “Access to medical services by foreigners who have not complied with the rules of residence cannot result in any type of report to the authorities, except for cases where communication to the authorities is obligatory, exactly would be the case for Italian citizens.” .
This is the provision which it is planned to repeal.
The regulatory landscape is appropriately incorporated into the rules governing the implementation of the immigration Single Text: in fact, Presidential Decree 394/99 deals with the right to health of irregular foreigners covered by art. 43 by requiring that:
– “The definition and registration of services provided to foreigners without permits to stay are provided … using a regional code designated STP (temporarily present foreigner) … recognized nationwide … identifies the patient for all services … this code should also be used to report the services provided….”
– “In the case of health care services left unpaid by the foreign national, the hospital requests payment … if the services are urgent or essential from the Ministry of Interior.”
– “Communication with the Ministry of … is done anonymously, using the regional STP code, indicating the diagnosis, type of service provided and the amount requested for reimbursement.”
For the definition of “urgent, essential or even continuing care, it is necessary to refer to the Minister of Health circular No 5 of 24/3/2000 which clarifies:
“Urgent care means care that can not be deferred without danger to life or damage to the health of the person; Essential care means health services for diagnostic or therapeutic purposes relating to illnesses which are not dangerous in the short term, but which over time could cause greater damage to health or become life threatening (could entail complications, become more serious or chronic). The law also affirmed the principle of continuity of urgent and essential care, so as to ensure that the patient benefits from a complete therapeutic and rehabilitative cycle in terms of the possible resolution of health problems.”
This is, in short, the regulatory framework.
For a complete overview of interpretation of these rules it is useful to recall some passages of an important ruling by the Constitutional Court; the ruling no. 252/2001:
“It should first be noted that, according to a principle constantly reaffirmed by the jurisprudence of this Court, the right to health care sufficient to protect health is constitutionally conditioned by the need for a balance with other constitutionally protected interests, apart, however from the guarantee of an irreducible nucleus, including the right to health, protected by the Constitution as an inviolable area of human dignity which acts to prevent the occurrence of unprotected situations and which may indeed affect the exercising of that right. This irreducible core of health protection as a fundamental human right must therefore also be recognized for foreigners whatever their position in relation to the rules governing their entry and residence in the state, furthermore the legislature can foresee various ways to exercise the same”.
2. What it is desired to change
Bill no. AC 2180 being considered by the House includes in this regard, two major changes:
1) Art. 45, co. 1, lett. t) of the bill proposes to repeal art. 35 co. 5 of the immigration single text. 286/98, i.e. the rule banning the reporting of irregular foreigners who have recourse to health care facilities.
2) Art. 21 provides for the introduction of the new article 10a in the body of the immigration single text 286/98, that is the offence of “illegal entry and residence in the State.” This is a new offence that prohibits the entry or stay of foreigners in Italy in breach of the rules contained in Legislative Decree. 286/98 (i.e. the immigration single text). It is important to stress that the new offence is a minor crime (Contravenzione) and not a serious crime (Delitto).
3. The possible consequences of the changes
Obviously, as can be seen from the modifying texts, the new provisions would not in themselves preclude the provision of urgent, essential or even continuing medical care to foreigners without a valid permit to stay. These services would continue to be provided (and, therefore, the basic principles outlined in the constitutional jurisprudence cited above, would be formally complied with), however it raises two serious issues:
1) the possible results of these changes on immigrant usage.
2) the consequences for the health professionals – public officials or people in charge of the public service – regarding the existence of the obligation to denounce people who are in the act of committing a minor crime (contravvenzione).
3.1 The impact on usage
It is obvious that, if the scenario becomes real, irregular foreigners are unlikely to go (except in extreme cases) to the public or contracted health structures, given the real risk of being denounced for the crime connected to their irregular status.
This would be a consequence of the introduction of the new offence that would cover not only the area in question here, that of health, but any possible relationship with all public administration: from the registrar, to the school, from social services and welfare protection to protection as victims of crimes etc.
It is evident that the core of all issues under discussion is precisely the planned new crime of illegal entry and residence, which further distances irregular foreigners from any public structure, relegating them to further marginalization.
In terms of the health context, it is easy to imagine the serious risks to health that will arise both for the individual irregular foreigner and for the community (remember that the Constitution protects health not only as a fundamental right of the individual but also as a collective interest).
But the emergence of “a clandestine Health system”, parallel to the official one, is also foreseeable, very similar to that of the “mammane – back street abortionists” before the law on abortion. This is surely an attractive prospect for the criminal organizations involved in human trafficking.
So, beyond the ethical and political beliefs of each individual, is really difficult to argue that such measures will be useful to the pursuit of the declared purpose: the strengthening of security, either real or perceived.
3.2 The possible consequences for health professionals
A) Public or contracted health professionals are according to the specific situations in which they operate either public officials or the public service providers.
From thence the requirement to denounce to the judiciary or police any crime which they have become aware of in the course of their duties (like all public officials or public service providers). Any failure or delay to denounce is an offence punishable under Article. 361 of the penal code for public officials, and art. 362 of the penal code for public service providers.
Consequently if the offence of illegal entry and stay of foreigners in Italy comes into existence, albeit only as a minor offence (contravvenzione), each health professional who in the course of their duties learns that a person to whom they have provided care is an irregular foreigner, not in compliance with residence and entry rules, cannot avoid the obligation to denounce that person without the risk of being denounced themselves.
B) In addition the provision in art. 35, co. 5 of the single immigration text 286/98 which prohibits any kind of reporting (except where obligatory) of a foreigner who accesses health facilities will also be lost. This provision has, so far, prevented any reporting of irregular foreigners because illegal immigration is not (yet) a criminal offence.
It is true that the provision in question shall be without prejudice to the obligation to report, but in the light of article 365 of the penal code, health professionals have an obligation to report they have themselves provided assistance “in cases that show the characteristics of a prosecutable crime. This provision shall not apply where the report would expose the patient to criminal prosecution. “
However, since the legislature seems intent on making the offence of illegal entry and stay of a foreigner a minor offence (contravenzione) and not a serious crime (delitto), in no case can the provision relating to the obligation to report be considered until this requirement extends to include ‘minor offences’, and the prohibition on reporting is not even applicable when the patient could be subjected to criminal proceedings, as a consequence of the report.
In conclusion, it appears that the in itself the status of ‘minor offence’ will not allow a health worker to avoid the obligation to report, which applies to all crimes and is not limited to serious ones.
C) Nor does it seem likely that rules of ethics will avoid the obligation to denounce, nor, more generally will professional secrecy.
In fact, in the light of article 200 of the penal procedural code, the prohibition of testimony by those who can avail themselves of professional secrecy (doctors, lawyers, religious ministers, etc.) is not applicable in those cases where they are required to report to judicial authorities what they have learnt by reason of their position or profession. This requirement exists due to the above mentioned provisions.
As for the rules of ethical professional conduct, they are below the provisions of the criminal code in the hierarchy of sources of law and so cannot derogate them.
D) Finally, it seems appropriate to take charge of possible tricks that, in practice, could lead individuals to believe that it is possible to circumvent the forthcoming provisions and thus reduce their effective scope and severity.
We have seen how the obligation to report exists whenever a health workers has “knowledge of a crime.” Since a health worker is not obliged to request proof of authorisation to stay in Italy it could be inferred that, with some care they would never know of the foreigner’s crime of irregular entry and residence, and could therefore legitimately avoid the obligation to denounce them. This “Italian” style option could be supported by the modification of article 6 co. 2 of the single immigration text 286/98, legislative decree and article. 45, co. 2, letter. f) which includes “measures relating to access to health care under Article. 35” under which it is not necessary to provide the public administration with a permit to stay. This could lead to the following reasoning: “But if it is not necessary to show a permit to stay to the public service for the provision of emergency and essential health care, why should I have to ask for it, being a doctor?”
Although this interpretation is attractive it is not valid.
In fact, the reason which seems to have induced the legislature to introduce the change derives from the need to balance the heavy increases with the obligations, including constitutional ones, inherent in the protection of the right to health, taking into account constitutional law and related regulations.
So now how can they reconcile the introduction of the crime of clandestine immigration with the obligation to denounce and the end of the ban on reporting with the fact that irregular migrants are not required to show their permits to stay in hospitals? This would seem to be somewhat contradictory.
However, we should take the following information into account:
1. There is a police point in all hospitals and, according to article 6 co. 3 of the single immigration text 286/98, foreigners are required to show their documents to the officials and agents of public security and, it goes without saying, to the police officer on duty – possibly following the instructions given by the police headquarters or the health management – could communicate the irregular status of the patient to triage or the administration.
2. it has already been stated that the irregular foreign patient who is not therefore registered with a social security number, and is identified with the regional STP code for the aim of the registration of the benefits provided for the purpose of reimbursing the costs incurred by the hospital that will be requested the Ministry of the Interior in accordance with art. 43 D.P.R. 394/99. It is therefore clear that the mere registration of the patient with an STP code is in itself an indicator of the irregularity of his or her presence in Italy. This is largely sufficient to induce the hospital administration, which will request repayment from the Ministry of the Interior for the provision of the service, to denounce the subject.
Otherwise, the health management will find themselves in the embarrassing situation of either renouncing the repayment for the services provided and left unfinished (a very unlikely hypothesis), or will not be able to justify claims that are not supported by a corresponding denouncement thus incriminating those responsible for the administration, themselves being public servants or public service agents. That is likely to induce hospital administrations to issue appropriate orders.
In conclusion, regardless of the solutions that are actually adopted in the each region, which may vary depending on the underlying political majority, the problem of denouncing irregular foreign patients remains with all its tragic ramifications, nevertheless symbolic, and if not carried out directly by doctors, will be by the administrative staff, leaving its effects unchanged.
Translation Chris. B.