Requirements for the 

Compliance of Medical 

Intervention with Laws

Atty.Oktay Özer

 

Introduction

 

“Medicine”, is branch of Health Sciences. It is the generic term for the scientific sub-disciplines that serve for protecting human health or recovering the deteriorated health, diagnosing and treating the diseases, and protecting from injuries. It is both a science - the science of biological systems, and diseases and treatments thereof - and a profession where that science is applied.[2] The Turkish Language Institution defines Medicine as the entire methodological and scientific studies employed to recover from, palliating or protecting from diseases, the art of medicine.

 

“Medical Jurisprudence”, is a branch of Healthcare Law, which studies the rights and liabilities of healthcare personnel that arise from the implementation of Medicine, and their legal obligations, patient rights, medicine law, medical law. The medical jurisprudence can also be referred to as the law of medical intervention, and in this context, there is no distinction whether the medical attention is performed by the physician or other healthcare personnel. The fundamental characteristic of this branch of law is that it is an interdisciplinary field, and has some aspects that concern also the constitutional law, criminal law, administrative law and civil law.[3]

 

It is essential to define “medical intervention” where medicine and medical jurisprudence is defined. Prof. Dr. Hakan Hakeri defines medical intervention as any treatment in connection with implementation of the science of medicine on human beings[4] According to the Judgement Docket No. 2014/33, No. 2014/8431 on 07/04/2014 by the 2nd Civil Chamber of the Court of Cessation, “Any treatment performed by implementing the principles of the science of medicine is medical intervention”.

 

Art. 2/3 of the Additional Protocol to Convention on Human Rights and Biomedicine states that “For the purposes of this Protocol, the term “intervention” includes:

  1. A physical intervention and

  2. Any other intervention in so far as it involves a risk to the psychological health of the person concerned”, and implies that it should be considered collectively with physical and psychological intervention.

 

Additional article to the Article 4 of Patient Rights Regulation on 08.05.2014 states that “medical intervention” means any physical or psychological attempts by those who perform the profession of Medicine, in compliance with professional responsibilities and standards and within the limits of Medicine, for protection of health, and diagnosis and treatment of diseases.[5] Article 3 of the Regulation Concerning Physical Examination in Criminal Procedure, Genetic and Physical Identification states that “intervention” means “any examination, treatment or other medical procedures by physicians and other healthcare personnel for the purpose of diagnosis, treatment, rehabilitation or prevention”.[6]

 

Any medical intervention is a violation of physical integrity. However, if it complies with the requirements then it may be deemed lawful. Art. 17/2 of the Constitution of the Republic of Turkey secures the physical integrity of individuals stating “neither the physical integrity of any individual may be violated, unless there is a medical emergency, nor any individual may be experimented scientifically or medically, without the consent of such individual.” The criteria imposed by the Constitution for an intervention to be considered lawful is that any such intervention is performed due to medical emergency, and in the cases set forth in the laws in written. Therefore, it is evident that exercising any medical intervention should also be regulated by laws. However, considering the aforesaid Regulations, it is also evident that law makers are, partially, unable to fulfil their obligation on such a matter. That the administration is attempting to govern without any by-laws to constitute a basis for the provisions of the Laws which contains more general and abstract statement per se, is to be criticized.

 

Requirements for the Compliance of Medical Intervention with Laws

 

For any medical intervention to be considered legitimate the requirements below, in the light of the aforesaid, should be complied with. These are the medical interventions that are exercised:

  1. by individuals who perform the profession of Medicine,

  2. upon the consent of the patient, who is duly informed, and

  3. in the cases where it is necessary to, as per and in conformance with the data of the Science of Medicine.

 

The aforesaid requirements will be analysed in their respective order.

 

1.   Exercise by individuals who perform the profession of Medicine

 

Due to the consideration of potential negative effects of medical intervention on individuals, only the healthcare personnel (in essence) are entitled to medical intervention. Thus, protection of individuals, and therefore the society, is aimed.[7]

 

The fundamental regulation on this matter is Law Number 1219 on the Mode of Execution of Medicine and Medical Sciences. The first Article of the Law requires a degree from Faculties of Medicine to treat a patient, stating “In order to perform the profession of Medicine within the borders of Turkey, and to treat a patient, on any ground, a degree from Faculties of Medicine is required.”

 

Limited to emergency medical intervention and emergency care and on the condition that it is specified in the regulations issued by the Ministry of Health, emergency medical technicians may perform medical intervention, , and may act as necessary. (Art.3/2 of Law No. 1219)

 

Privates and non-commissioned officers of Turkish Armed Forces, trained and serving in the medical services branch, may perform minor medical interventions, limited to the scope and period of their service. (Art.3/3 of Law No. 1219)

 

Those who are elected among the combatant personnel of Turkish Armed Forces and among the personnel in headquarters or in field service within the Special Operations Department of Turkish National Police, and who are commissioned and complete the relevant training successfully, are entitled to emergency medical intervention in the absence of medical personnel and until the such personnel arrives. (Art.3/4 of Law No. 1219)

 

A dentist is entitled to perform any professional conduct related to periodontal protection and the protection of oral and jaw tissues, and diagnosis, treatment and rehabilitation of the diseases and disorders. (Art.29/1 of Law No. 1219)

 

As per the Law no. 1219, those who can perform medical intervention are physicians, dentists, midwives, healthcare personnel, circumcisers, and nurses.[8]

 

2.  Consent of the patient, who is duly informed

 

The second requirement for medical intervention to be lawful is that the patient is informed and grants consent.

 

Art. 70 of Law No. 1219, aims that the patient is informed on procedures and medicines to be administered, and adverse effects thereof, and therefore the consent of the patient is received and necessary precautions are taken, stating “physicians and dentists, shall receive the consent of the patient, or parents or the guardians of the patient should the patient be minor or placed under guardianship, in advance, for any operation they perform.”

It is stated in the Convention on the Protection of Human Rights and Human Dignity for Biological and Medical Application, to which Turkey is a Party, that an intervention in the health field may only be carried out after the person concerned has given free and informed consent to it (Art. 5),  an intervention may only be carried out on a person who does not have the capacity to consent, for his or her direct benefit (Art. 6/1), and in the cases a minor does not have the capacity to consent to an intervention or an adult does not have the capacity to consent to an intervention because of a mental disability, a disease or for similar reasons, the intervention may only be carried out with the authorisation of his or her representative or an authority or a person or body provided for by law (Art. 6/2). Even in such cases, such person, authority or organization should be informed on the aims, nature, possible results of the intervention and the risk that could arise unless it is intervened.

 

 

3.   Medical intervention in the cases where it is necessary to, as per and in conformance with the data of the Science of Medicine.

 

Intervention that conforms with the science of medicine could be interpreted in two ways. Initially, the intervention should be inevitable in terms of the science of medicine. This is called a “requirement for indication”. And secondly, the intervention should conform to the requirements of the science of medicine, and be performed with care.[9]

 

A.   Indications (Medical Necessity)

 

Codes of Practice for Medical Deontology require that there should be an indication for treatment stating in Art. 13/2 that “Physician and dentist may not perform anything to reduce the mental or physical strength by abiding by the consent of the patient or for other reasons, unless it is for diagnosis, treatment or protection purposes.” and in the Art. 20/1 stating “Physician and dentist may not administer the patient a medication that is known to be vain. However, in cases where it is not possible to carry out a substantial treatment, some medicines may be recommended for comforting.”

 

Art. 12 of the Patient Rights Regulation which regulated the Prohibition of Medical Intervention with the Exception of Medical Necessity states “No intervention that could lead to death or life-threatening issues, or violate physical integrity, or reduce mental or physical strength, may be performed or demanded, unless it is for diagnosis, treatment or protection purposes.”

 

General Assembly for Criminal Matters of the Court of Cessation, in its Decision No.2014/552, Docket No. 2014/12-103 on 09.12.2014 points out “indication”, and states: “Physicians should intervene in accordance with the obligations of their profession and the applicable rules of medical science, and should not diagnose and treat contrary to principles of medicine. The intervention by physicians should be performed for diagnosis and treatment of, and prevention from the disease due to medical necessity, which is also called indications. This obligation is also emphasized in the Art. 17 of our Constitution.”

 

B.   Careful Medical Intervention

 

Art. 14 of Patient Rights Regulation states “personnel shall take the medical care as required by the condition of the patient. Even in the cases where it is not possible to save the patient's life or protect his or her health, it is imperative to try to reduce or relieve patient’s pains.”

 

The Decision No. 2015/33583, Docket No. 2014/26571 by 13th Civil Chamber of the Court of Cessation is important in this case: The case relates to the claim of material and moral compensation of the plaintiff, where the plaintiff saw the defendant physician as a result of a trauma on the right wrist in a motorcycle accident, however it has been found that due to intra-operative and postoperative mistreatment by the said physician, the plaintiff’s right wrist is permanently disabled as there is no bone union. The dispute gathers around whether the defendant physician who performed the operation, unlawfully misconducted, and led to the permanent disability of the plaintiff’s right wrist.

 

The claims and the acceptance of the case indicates a delegacy. In other words, the case concerns the defendant physician’s violation of his duty to care as attorney. (See. Articles 386 and 390)

 

The attorney is not responsible for the failure of the results but the failure to care to obtain results. The responsibility of the attorney generally depends on the rules concerning the responsibilities of the labourer (See. 390/2). Attorney is obliged to care, as does the labourer and is liable against even the minor negligence. (See. 321/1) Therefore (even if they are minor) all negligence of a physician is a part of his responsibilities. In order to keep the patient unharmed, physicians must take the professional but also general care that anyone may have due to their life experience. Physicians, while performing the science of medicine, are obliged to fulfilling certain professional requirements, value the condition of the patient, observe and apply the rules of medical science and take any precautions. Even in the events of minor hesitations, physicians are obliged to carry out investigations and take preventive measures to eliminate such hesitations. Physicians, while choosing between various treatment methods, should consider the patient's characteristics, should not put the patient at unnecessary risks and should choose the most secure way. In reality, a client who trusts a physician, who performs this profession, has the right to expect proper attention and care. An imprecise, careless attorney should be considered to have failed to perform his duty as required by 394/1.”​

 

[1] Registered Attorney in the Bar Association of Istanbul and Graduate Student in the Department of Medical Jurisprudence in Istanbul Medeniyet University, e-mail: avoktayozer@gmail.com

[2] https://tr.wikipedia.org/wiki/T%C4%B1p (Last accessed on, 19.05.2016)

[3] M.D. Hakan Hakeri, Prof., Medical Jurisprudence, 10. Edition, 2015, p.40.

[4] Hakeri, p.43.

[5] Official Gazette Published on 01.08.1998 Issue: 23420

[6] Official Gazette Published on 01.06.2005 Issue: 25832

[7] Hakeri, p.188

[8] Atty. Gültezer Hatırnaz Erol, Özel Hastanelerin Hukuki Sorumluluğu ve Hasta Hakları, 4th Edition, 2015, p.118

[9] Hakeri, p.355