Medical intervention is defined as actions taken by medical institutions, physicians and medical personnel in order to diagnose, cure and prevent diseases. Medical intervention notion has a wide variety from curing or preventing an ailment to fulfilling a request relating to an aesthetic matter.
Physicians and medical personnel interfere with physical integrity of patients in accordance with the “medical intervention”. In the context with the Constitution and related laws, intervention to physical integrity of a person is prohibited besides exceptions. Article 17/II of Constitution clearly regulates that; a person’s rights on physical integrity and health are substantial rights and no one can intervene with a person’s physical integrity and force them to attend scientific or medical research without their consent except medical necessities and conditions stated at law.
In addition to this regulation, this matter is also regulated at Code of Obligations article 46 and 47 with providing a compensation security against material and moral damages directed at physical integrity.
At this point, a necessity regarding compliance to law for intervention of physicians to physical integrity arises.
Conditions of compliance to law for medical intervention
Conditions which makes intervention compliance with law regulated at Turkish Civil Code art. 24/2. These are;
- Higher public benefit (For example, vaccinations can be executed in order to prevent spreading of an epidemic),
- Higher special benefit (For example, intervention to third parties’ physical integrity will be considered legal limited to self-defense circumstance),
- Executing powers received from law,
- Consent of the person whose personal rights are intervened.
When above conditions are examined from medical intervention aspect, two conditions are met which make medical interventions in compliance with law. One of them is medical intervention with consent of the patient and other one is medical intervention on the grounds of higher public benefit.
Consent of patient at medical interventions
The most common way seen at practice when physicians apply in order to make medical interventions in compliance with law, is to obtain consent of patient.
But single consent is not deemed enough for compliance to law. Consent of the patient should be a consent which is in accordance with the law. Below conditions are needed in order that consent of patient should be legally valid;
- Patient should have capacity to act,
- No damage at will of patient,
- Consent should be in accordance with law and ethics
In order to understand them in a clearer manner, it would be suitable to study each of them in detail.
Patient’s Capacity to Act
In order that patient’s consent to be valid; patient should be at full age and mentally sane.
Consent of minors are received from their parents and guardians have powers to give consent for majors who does not have capacity to act.
In addition to that, there can be temporary loss at capacity to act sometimes. For example, consent regarding medical intervention taken from a drunken person who lost his ability to act is considered legally invalid. In these cases, if lack of this intervention will not cause loss of life or any of person’s organs; intervention should be postponed and should not be executed.
There Should Be No Damage at Patient’s Will, Disclosure Is Required
Second condition for a consent to be valid is that patient’s will should not be damaged. In this context, physicians, should fulfill requirements regarding preventing patient from making a wrong choice. And this can be done with clearly informing the patient.
Methods and contents of a legally valid disclosure are explained below additionally.
Consent Should Comply With Laws and Ethics
Lastly, patient’s consent should comply with law and ethics. For example, euthanasia is illegal at Turkish law and even though patient has given consent for euthanasia, it wouldn’t make the physician’s intervention legally valid. At this case, patient’s consent will be deemed illegal since it interferes and aims to destroy right to live which is an indefeasible right.
What are the content of a legally valid disclosure?
In accordance with Patient Right Regulation article 15, physicians should receive consent of patient for every procedure and inform the patient regarding intervention and possible complications. This disclosure should include; patient’s medical status and diagnosis, proposed treatment, success rate and duration, risks, usage and possible side effects of medication, results of rejecting the treatment, possible treatment options and risks.
In accordance with the accepted law and medical practice, disclosure should be made at least a day before medical intervention. This duration should be increased at more complication and higher risk medical interventions. If the patient is a minor or does not have capacity to act this disclosure should be made to parent or guardian.
Informed consent is very important for both patient and physician. This process should be conducted correct with much care.
What should be done at emergency cardiologic cases which it is not possible to obtain this informed consent? Should be waited to obtain consent at emergency cases? Convention on Human Rights and Biomedicine which is an international convention regarding emergency cases, came into force with being published at Official Gazette on 9th December 2003 at Turkey. In accordance with the article 8 of Convention on Human Rights and Biomedicine;
“When because of an emergency situation the appropriate consent cannot be obtained, any medically necessary intervention may be carried out immediately for the benefit of the health of the individual concerned.”
But when this emergency situation comes to an end, consent should be completed and it is advised that consent form should be signed by patient even after intervention.
The medical intervention must withstand a lawful consent if there is no public benefit or an emergency situation concerning life of the patient. This consent should be received in conditions that the patient can share free will with informing patient regarding every possible details and risks regarding medical intervention. Informed consents should be recorded and kept in case of any disputes that may arise in the future, since responsibility to prove that the lawful consent has been obtained will be on physician, the health institution and the health personnel.
By Nazlı Sezer, Attorney Sezer & Utkaner Law Firm