The Right to Consent in Medical Intervention and Challenges in Practice
In my article last week, I discussed how, pursuant to Article 56 of our Constitution—which forms the foundation of the right to health in our country—everyone’s right to live in a state of complete physical, mental, and social well-being is a fundamental human right, and in this context, I examined the legal regulations that form the general framework for patients’ rights.
In this week’s article, I will take a closer look at the topic of “CONSENT,” one of the cornerstones of patient rights.
1. The Legal Basis of Consent
The concept of consent derives its legal basis primarily from our Constitution, the patient rights recognized in international legal texts, and all other regulations established to ensure that patients can exercise these rights.
Patient consent is required for medical procedures.
“Except for the exceptions explicitly provided for by law, no one may be subjected to medical intervention without their consent or in a manner inconsistent with the consent they have given.”
This is because the absence of informed consent in medical interventions results in an infringement of the patient’s bodily integrity and other personal rights.
“For this reason, informed consent is at the heart of both ethical and legal responsibility in medical interventions.”
2. Duty to Disclose
When obtaining consent, the patient or their legal representative must be informed and made fully aware of the nature and potential outcomes of the medical procedure.
Information is provided in a manner that the patient can understand—using an interpreter if necessary—while avoiding medical jargon as much as possible, leaving no room for doubt or uncertainty, and using language that is appropriate to the patient’s emotional state and expressed with kindness.
The diagnosis may be withheld if informing the patient is likely to have a detrimental effect on their emotional well-being, or if the course and outcome of the illness are considered serious.
It is not mandatory to inform the patient and their family members unless such a situation exists.
In addition, the patient may request that no information regarding their health condition be disclosed to them, their family, or their close relatives.
3. The Form and Scope of Consent
There are no formal requirements regarding the form of consent to be obtained from the patient for medical interventions.
However, in practice, it is recommended to obtain written consent, particularly to prevent any disputes that may arise in the future.
In this context, obtaining signed, personalized, and detailed informed consent forms—particularly prior to high-risk procedures such as surgery—provides legal protection for both the physician and the healthcare facility.
However, the validity of consent also depends on its content.
“The patient must be fully informed and advised regarding the nature and outcomes of the procedure.”
If the patient is a minor or legally incapacitated, consent must be obtained from their parent or legal guardian.
This requirement does not apply if the patient has no parent or legal guardian, or if such a person is not present, or if the patient is unable to communicate.
If the patient’s life or a vital organ is at risk, no authorization is required.
While patient rights are directly linked to personal rights, in the absence of valid consent, the issue of non-pecuniary damages and compensation for such damages will arise under the provisions of Article 58 of the Turkish Code of Obligations.
4. Withdrawal of Consent and Refusal of Treatment
Except in urgent cases, consent can always be withdrawn.
In this case, we will discuss the patient’s right to refuse or discontinue treatment.
There must be no medically significant or urgent contraindications for the treatment to be discontinued.
In such cases, the patient, their legal representative, or their next of kin must be informed of the consequences of not undergoing treatment, and a written document confirming this must be obtained.
However, under no circumstances may a patient’s decision to discontinue or refuse treatment be used against them if they seek care at the healthcare facility again.
“While the right to access healthcare services in a fair and equitable manner is one of the patient’s fundamental rights, it is also an obligation for healthcare professionals.”
5. Issues in Implementation and Recommendations5. Uygulamadaki Sorunlar ve Öneriler
Due to a heavy patient caseload, physicians may fail to properly follow informed consent procedures or adequately inform their patients about the nature and outcomes of treatment, which can result in financial and emotional harm to the patient.
The fact that written consent forms contain standard and generic language, lack sufficient explanation, and are not personalized constitutes a breach of the obligation regarding the content of consent.
In this situation, my humble suggestions for a solution are as follows:
- To increase the duration of patient examinations,
- Resident physicians should explain the treatment process to the patient in detail and in a manner tailored specifically to the patient following the examination,
- The digitization of the consent process,
- This involves providing patients with detailed informational brochures about their condition and treatment.
Closing
In conclusion, obtaining a patient’s consent for medical interventions is not merely a legal formality, but also a concrete expression of respect for human dignity and personal rights.
Respecting a patient’s right to make decisions about their own body is one of the fundamental ethical principles of modern medicine.
In this context, it is of great importance for healthcare professionals to view the consent process not merely as a procedure involving the collection of signatures, but as a process of transparent communication.
The relationship established with a patient who is informed and makes decisions of their own free will forms the foundation of a healthcare system based on trust and ethical principles.
It should not be forgotten that a healthy society is possible not only through good doctors, but also through a system that recognizes people’s rights and respects them.
As our Istanbul-born philosopher Ionna Kuçuradi once said,
“We do not harm human dignity—or our own dignity—through what is done to us, but through what we do, because we are responsible for our own actions, not for what others do to us. Whether or not we do something is entirely up to us.”
Best regards,
Attorney İdil Zeynep Yağlıca
