The Notion of “Medical Intervention”
The general frame and the borders of medical intervention is determined by our Constitution and European Convention on Human Rights and Biomedicine. In their enlightenment, medical intervention is every operation done in order to diagnose a deficiency or a disease regarding a person’s mind and body health; to palliate or to prevent the worsening of a disease in the cases where treatment is not possible, to reduce the pain, to prevent possible upcoming diseases or to aim family planning on a legal basis, by authorized people by law according to rules and principles the medical science sets forth.
According to Regulation of Patient Rights, Article 4, paragraph 1, section g, medical intervention is defined as, “Medical intervention: Physical and mental initiative carried out within the boundaries of medicine in accordance with the relevant professional obligations and standards for the protection of health, diagnosis and treatment of diseases, applied by people authorized to perform the medical profession.”
In the way of embracing thoughts asserted in the doctrine, medical intervention may be defined as; physical and mental initiative within the boundaries of medicine, in which the practice is carried out by the persons authorized to perform the medical profession, within the framework of diagnosis, treatment or legal purpose, in accordance with the benefit expected from the intervention to be made.
As seen above, four fundamental conditions are required for medical intervention, which are: the intervention being made by the physician (medical personnel), indication, informed consent of the patient and the intervention being in accordance with the parameters of medical science.
1.A. Medical Intervention to Be Carried Out by Authorized Persons
Authorization to make medical intervention will be lawful when it is granted by law. The ones that have the authority to make medical intervention are physicians, midwifes, medical personnel, nurses, dentists, caregivers, dental prothesis technicians and pretomists. Yet, the authority belongs to the physicians in essence. Consequently, general rules for the authorization are as follows:
The definition, name, the authority borders and the duties of the profession must be regulated legally.
To right to do the profession should be gained by the related education in the field.
The diploma or profession document should be approved/accepted by the Ministry of Health.
1.B. Medical Necessity (Indication)
According to Article 17, paragraph 2 of the Constitution, no one’s physical integrity might be violated except medical necessity. Indication is the valid ground for medical assistance or making medical intervention. Therefore, indication is one the elements that legalizes the medical intervention.
1.C. Elucidation and Consent
In order for a person to freely and soundly decide on a operation to be carried out on him/her, s/he must know the content of the operation, possible outcomes, possible benefits or harms of the operation, that is, s/he must be enlightened.
According to Regulation of Patient Rights, Article 15:
“Patient should be informed about the matters as follow:
- a) The possible reasons underlying the disease and how it will possibly proceed
- b) How, where and by whom the medical intervention will be made and estimated duration of the procedure,
- c) Other choices of diagnosis and treatments, the benefits and harms these choices will cause, and possible effects of them on the patient’s overall health,
ç) Possible complications
- d) Possible benefit and risks in case of rejection
- e) The important features of the medications to be used
- f) Recommendations on lifestyle that are critical for the patient’s overall health,
- g) How to get medical assistance on the same subject when needed.”
According to Article 26 of Turkish Medical Association Profession Ethics Rules, informed consent is defined as, “The physician should enlighten the patient about the patient’s health condition and the diagnosis, the type of the recommended treatment method, the chance and duration of the treatment method, the risks of the treatment method fort he patient’s health, the usage and possible side effects of the medications, the consequences of the disease if the patient does not accept the recommended treatment, possible treatment options and the issues of risks. The enlightenment to be made should be in an appropriate manner that pays attention to the cultural, social and mental state of the patient. The information should be given in a form understandable by the patient. The patient him/herself determines the people to be informed besides him/her. All kinds of health-related initiatives can be made with the free and informed consent of the person. The consent obtained is invalid if it has been obtained through pressure, threats, incomplete disclosure or deception.”
Elucidation liability belongs to the physician that proceeds the treatment, makes the intervention. Person to be enlightened is the patient that will be subject to the medical intervention. Patient him/herself is the one that should directly be informed about the medical intervention s/he will face in order to use his/her own right to determine his/her own future. The extent of the enlightenment is stated in Article 15 of the Regulation of Patient Rights and Article 26 of Turkish Medical Association Profession Ethics Rules. Unless there is an emergency, reasonable and appropriate time to decide should be allowed to the patient. As by the rule, elucidation should be made one day before the surgery at latest.
It is of great importance that the physician fulfills the obligation of elucidation in the aspect of the consent to be given by the patient regarding the intervention to be performed. The consent statement should be made before the intervention or depending on the nature of the concrete incident, the latest at the time of the intervention. Although consent can be given explicitly or implicitly, either one will not remove the physician’s obligation to inform. Consent, as a rule, can be explained verbally. However, the provisions in the legislation regarding obtaining written consent are reserved. Previous consent can be revoked at any time.
1.D. Medical Intervention in Accordance with the Parameters of Medical Science
In order for the medical intervention to be lawful, it should be performed in accordance with the parameters of the medical science.
Article 11 of Regulation of Patient Rights states: “The patient has the right to request diagnosis, treatment and care in accordance with the requirements of modern medical knowledge and technology.
Diagnosis and treatment of a deceptive nature or contrary to the principles of medicine and the provisions of the legislation on medicine cannot be made.”
As indicated in the article, the patient has the right to request diagnosis, treatment and care in accordance with the requirements of modern medical knowledge and technology. If intervention is performed careless, neglective and contrary to the requirements of medical science, the operation of the physician will be against the law. Malpractice, meaning compensation action might be commenced against the physician that performed an unlawful intervention. As a law firm located in Istanbul, we might help you commence this action in the area of health legislation. An attorney with expertise on Health Legislation area should be consulted to before commencing such actions, otherwise the chances of losing the case is very high.
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