Medical intervention refers to all kinds of activities carried out by an authorized physician practicing the medical profession, directly or indirectly for the purpose of treatment, aimed at the physical and mental integrity of the person. In Turkish Law, the medical intervention of the physician may be through surgery, medication, radiation therapy, and these are actually injuries, but this injury is accepted as a reason for compliance with the law according to Article 26 of the TPC within the framework of the exercise of the right and the consent of the person concerned.
Material and Moral Elements of the Crime Occurring with the Medical Intervention of the Physician
There are two views for the material element of the crime to occur in the intervention of the physician. The first of these is the view that the acts performed by the physician do not comply with the elements defined as a crime in the law. The first of these is the view that the acts performed by the physician do not comply with the elements characterized as a crime in the law. Accordingly, when a damage occurs in the medical intervention or when the negative effect of the damage caused by the treatment disappears, the material element of the crime will disappear and the elements of the crime will not occur.
According to the second opinion; even if the patient has recovered after the damage caused as a result of the intervention performed by the physician, the patient has been harmed in the time period until recovery and the material element of the crime has occurred and the responsibility of the physician has arisen. In addition, the success or failure of the medical intervention performed by the physician will not change the material element of the crime, and the crime will occur in the time period until the patient recovers.
It is undisputed that a physician cannot be considered to act with the intention of killing or injuring his patients as a result of his medical intervention, and that he must adhere to the Hippocratic oath and for the purpose of healing his patients while performing his profession. Accordingly, it is undisputed that the medical intervention performed by the physician is intentional and willful, and criminal liability cannot be imposed on the physician solely for this reason. A physician is held liable either when he acts with the intent to harm his patient or when he acts negligently in the performance of his profession. The results of these actions of the physician who performs his/her profession and often performs medical interventions by obtaining the consent of the patient or a relative, who performs healing, restorative, corrective actions on the patient’s body based on a medical motive, or who administers medication to his/her patient, are considered to be lawful in principle, but when these actions involve the intent to harm, endanger life or negligence, which can also be characterized as professional error, then the medical intervention falls within the scope of Criminal Law.
While the existence and intensity of intent is necessary for the crime of killing or injuring as a result of the physician’s intervention, in cases where the causal link with the treatment cannot be established, a causal link must be established between the injury, non-healing or damaged body parts that occur after the treatment due to the patient’s own carelessness in the patient’s body and the damage caused by the physician’s intervention.
Lawfulness of Medical Intervention, Enlightenment of the Patient and Exercise of the Right
In Turkish Law, the lawfulness of the physician’s activities is defined in Article 26/1 of the TPC: “No penalty shall be imposed on anyone who exercises his/her right”. In the second paragraph of the same article, the consent of the person concerned, i.e. the patient, is stated as the consent of the patient, in order to render the intervention in the body integrity of patients by utilizing their right to health. Pursuant to Article 26/2 of the TPC; “No one shall be punished for the act committed within the framework of the consent of the person, which is related to a right that the person can absolutely dispose of”. Depending on the right that the patient can dispose of, the medical intervention that the patient accepts with his/her free will, such as aesthetic, compulsory surgery, psychiatric treatment, are considered as a reason for compliance with the law.
Therefore, it is understood that if the intervention of the physician is based on a verbal or written contract between them within the framework of the patient-physician relationship, the treatment will be a cause of conformity with the law if the damage occurs as a result of the absolute disposal of the patient.
Medical intervention on the patient’s body, except in extraordinary circumstances, is only possible with the patient’s explicit consent. The consent of the patient is a reason for compliance with the law both in terms of Private Law and Criminal Law. Even if the patient who comes for treatment does not have explicit consent, the consent of the parent or guardian, who is the legal representative, must be obtained. It should be noted that in order for the patient’s consent to be valid, the patient must know, or at least be able to perceive, what they are consenting to. This can only be achieved by properly informing the patient and obtaining his/her consent. Otherwise, the medical procedure will be unlawful and the physician and the institution will be responsible for the damages caused[2]. In the absence of enlightenment and consent, even if the physician has performed medical intervention with the aim of curing the patient, the fact that the patient has endured the surgical procedure, i.e. surgery, will constitute damage to the material and moral body integrity and will bring the criminal responsibility of the physician to the agenda.
In addition, the most important legal basis for the exercise of the right and the fulfillment of the medical intervention is the patient’s enlightenment. In this context, physicians’ enlightening the patients they treat will prevent the physician’s liability, unjustified complaints and lawsuits against them and the institutions they are affiliated with. Of course, this enlightenment must be accurate, complete and in a way that the consequences of the treatment are explained, otherwise criminal liability will arise due to incomplete enlightenment or failure to mention the consequences.
In a situation where the patient is unconscious, does not have a legal representative, urgent intervention is required, the patient’s life risk will increase if the treatment is not performed, and the patient will be left to die, the existence of the patient’s implied consent will come to the fore. This consent; because in cases where it is understood that the patient is either unconscious or unable to act with his/her free will and it is understood that the obligation of informed consent cannot be fulfilled by obtaining his/her consent instead, medical intervention should be performed in accordance with the balance of rights and the supremacy of the right to life.
Get Expert Legal Advice Today
If you are seeking expert legal guidance, contact us today.
