The Legality of Medical Intervention

By its nature, any medical intervention may conflict with an individual’s life, mental well-being, and physical integrity. To address this conflict, medical intervention must meet the conditions for legal compliance. Accordingly, it is essential that medical interventions are carried out in accordance with the law.

In the context of Medical and Health Law, four basic conditions ensure the legality of medical interventions. Within these conditions, a medical intervention must be performed by authorized healthcare professionals in the relevant field, arise from a medical necessity except in certain exceptions, obtain the patient’s informed consent or be performed under an emergency that presumes consent, and comply with medical rules and standards.

The first condition for the legality of a medical intervention is necessity, meaning that the intervention can only be performed if there is a medical necessity. If no such necessity exists, the procedure cannot be carried out. However, some procedures constitute exceptions to this requirement as defined by law. For instance, procedures like abortion, cosmetic surgery, and gender reassignment—though not aimed at treatment or based on necessity—can be legally performed by physicians under the authority of the law.

Another condition for the legality of medical interventions is that they must be performed by authorized healthcare professionals. According to Law No. 1219 on the Practice of Medicine and Medical Arts, medical intervention authority, apart from emergency and first aid situations, is primarily granted to healthcare personnel such as doctors, nurses, midwives, and dentists. Over time, additional provisions to this law have expanded the authority to more than 70 types of healthcare personnel, allowing them to perform interventions within their areas of expertise. Consequently, medical interventions are lawful only if performed by authorized professionals. If an intervention is conducted by unauthorized personnel, it becomes illegal, potentially resulting in legal and criminal liability.

Another essential condition for the legality of medical interventions is obtaining the patient’s informed consent. The concept of informed consent has been further elaborated through amendments to the Patient Rights Regulation. Patients must be informed about their diagnosis, treatment, potential risks during or after the procedure, and the intervention process itself. However, in situations where the patient is unconscious, at risk of losing an organ or function, or in life-threatening emergencies, consent is not required, and treatment can proceed without it. After such interventions, the patient or their relatives must be informed, and the situation documented and signed.

“… Merely consenting to a surgical procedure is insufficient; complications must also be explained. However, as emphasized earlier, this consent must be informed consent. The Medical Ethics Code, Article 26, stipulates: The physician must inform the patient about their health condition, the diagnosis, the type of proposed treatment, its chances of success and duration, the risks associated with the treatment, the use and potential side effects of prescribed medications, and the consequences of refusing the treatment, as well as alternative treatment options and their risks. The information provided should be suitable to the patient’s cultural, social, and psychological condition and be comprehensible to the patient.

*The patient determines the individuals to be informed on their behalf. Any medical procedure must be carried out with the individual’s free and informed consent. If consent is obtained under duress, threat, incomplete information, or deception, it is invalid. In emergencies, or if the patient is a minor, unconscious, or otherwise incapable of making decisions, permission must be obtained from their legal representative. The specifics of how informed consent should be obtained are outlined in these provisions. The burden of proof regarding informed consent lies with the physician or hospital.”
(T.C. Supreme Court of Appeals 13th Civil Chamber, Case No. 2015/15350, Decision No. 2017/1911, Date: 16.2.2017)

When medical intervention involves necessity, is performed by authorized healthcare personnel, and is based on the patient’s informed consent, the final requirement is that the intervention must comply with medical rules and standards. Physicians must act with the care expected of a medical professional, adhering to medical science and ethical standards, regardless of whether the patient has given consent. Failure to do so makes the intervention unlawful, resulting in legal and criminal liability. Conversely, healthcare professionals who adhere to all medical rules and requirements during the intervention will not be held responsible for any resulting damages.

In conclusion, four fundamental conditions ensure the legality of medical interventions. The absence of any of these conditions renders the intervention unlawful, leading to legal and criminal consequences. Medical interventions that are medically necessary, performed by authorized personnel, based on the patient’s informed consent or under presumed consent in emergencies, and comply with medical standards are deemed lawful.

Av. Şefik Ziroğlu & Trainee Lawyer Neslihan Öykü Şahin