The liability of public officers for damages caused to the PA

One of the main actions put in place by the Italian legislator to tackle the issue of defensive bureaucracy has been the limitation of public officers’responsibility for damages caused to the PA only to wilful misconducts (while, before the reform, also cases of gross negligence were considered in the liability provision). While it is too soon to assess the concrete effects of the application of the reform (enacted in 2020), it seems interesting to analyse how the former liability provisions have been applied by the Court and how this could have produced incentives to the defensive attitude of civil servants. The paper will focus on the Italian Court of Auditors case-law, also with a look also at the supranational INTOSAI, and on the available data on the relationship between investigations carried out and the actual comminated sanctions, to understand how the perceived risk of being liable corresponds to the reality of the danger public officers face.

Defensive medicine and defensive bureaucracy

Defensive medicine has been described as a “bane” for healthcare. It occurs when a medical practitioner performs treatment or procedure to avoid liability, placing second the real needs of patients. Defensive medicine, both positive or negative (i.e. inaction avoiding risky procedures on patients who could have benefitted from them), increases the healthcare costs and hinder the efficiency and efficacy of the health Administration.
Many issues need to be considered for the purpose of a more efficient administrative action in the health sector. What are the defining features of public law remedies to defensive medicine? How to adapt liability to the redefinition of the doctor-patient relationship due to the remote health care? How to avoid the degradation of physician and patient relationship?
Investigating the phenomenon is urgent because health professionals are at the forefront to tackle the pandemic.

The reform of the abuse of power and defensive bureaucracy

The abuse of office has been traditionally conceived as the crime that allow the criminal judge to control the activity of the PA. Its provision in Italian law has been strongly criticized by legal scholars and academics for its wide and vague formulation, that left broad margins of interpretation to prosecutor and judges. For this reason, a huge variety of cases regarding several different aspects of the PA activity fell into the scope of application of the provision.
This situation has created, in recent years, the pathological effect of encouraging to the so called “defensive bureaucracy”, where civil servants are more concerned with minimizing the risk of criminal charges than with the actual pursuing of the public interest. In 2020, the Italian law on abuse of office has been modified, to deal with the above-mentioned problem. Will the reform work? This is what we are going to try to summarize in this panel, by an in-depth analysis of the criminal case-law.

The role of anti-corruption law in defensive bureaucracy

In the latest years, the legislation on anti-corruption, transparency and public procurement has been enhanced to contrast the chronic Italian pandemic: the so called“maladministration”. On the one hand, this legislative framework – that is composed of both hard and soft law (i.e. decisions, guidelines, communications issued by the National Anti-Corruption Authority) – is considered necessary to reduce the discretionary power of the Public Administration by favoring the law compliance by companies and individuals.
On the other hand, several Institutions, experts, and academics have highlighted that these measures may promote a “two-faced” behavior of private citizens and public officers. This may provoke some negative incentives: fragmentation, institutional overlaps, and norm collisions. As a paradox, the State risks reaching the opposite goal to that hoped for, i.e. bad regulation and too much bureaucracy that are the major causes of defensive bureaucracy.