Legal and Criminal Liability for Medical Interventions Performed Without the Patient's Consent

What is medical intervention without the patient's consent?

Medical intervention without patient consent is defined as any medical procedure performed on a person's body without obtaining legally valid consent, including diagnosis, treatment, surgery, injections, drug administration, blood sampling, biopsy, anesthesia, cosmetic procedures, dental treatment, termination of pregnancy, sterilization, intensive care procedures, organ/tissue procedures, or any similar medical procedure.

In Turkish law, one of the fundamental requirements for medical intervention on the human body is the patient's consent. Article 17 of the Constitution stipulates that everyone has the right to life, to protect and develop their physical and moral existence; that no one's bodily integrity may be violated except in cases of medical necessity and those stipulated by law; and that no one may be subjected to scientific and medical experiments without their consent.

The Patient Rights Regulation also clearly states that patient consent is required for medical interventions, that permission must be obtained from the guardian or trustee if the patient is a minor or has limited legal capacity, and that it is essential for the patient or their legal representative to be informed and enlightened about the subject and consequences of the medical intervention when obtaining consent.

Therefore, justifications such as "the doctor deemed it appropriate," "it's hospital procedure," "the patient came for treatment," or "the result was successful" alone do not legally justify an intervention without consent. Even if the medical intervention is successful, legal and criminal liability may arise if it was performed without adequately informing the patient or obtaining their consent.

Why is consent required for medical intervention?

Medical intervention often directly affects a person's bodily integrity. Surgery, injections, anesthesia, tooth extraction, blood tests, endoscopy, biopsy, cosmetic procedures, or drug administration all have consequences for the body. Therefore, medical law emphasizes not only the physician's knowledge and skills but also the patient's right to make decisions about their own body.

Consent is the manifestation of a patient's right to make decisions about their own body. The patient has the right to learn about the benefits and risks of treatment, to accept, refuse, or later withdraw from treatment. The Patient Rights Regulation stipulates that consent can always be withdrawn except in emergency and life-threatening situations; withdrawal of consent means the patient refuses treatment.

The crucial point here is this: patient consent is not just a signature. The patient needs to know what they are consenting to. Therefore, the concept of "informed consent" is central to consent in medical intervention. If the patient does not know the name of the surgery, its purpose, risks, alternatives, and outcomes, a signed form may not always be legally sufficient.

What is Informed Consent?

Informed consent is when a patient makes a decision freely after receiving sufficient, understandable, and concrete information about the planned medical procedure. During this process, the patient should be informed about the purpose and method of the intervention, its potential benefits, risks, complications, alternative treatment options, the consequences of refusing treatment, and the recovery process.

Article 5 of the Convention on Biomedicine also stipulates that a medical intervention can only be performed after the individual has freely and informedly given their consent; that the individual must be given appropriate information beforehand about the purpose, nature, consequences, and risks of the intervention; and that the individual can freely withdraw their consent at any time. The Council of State's decisions also emphasize the importance of informed consent in medical interventions, considering this convention and domestic legal rules together.

Information should be provided in language the patient can understand. Simply speaking in medical terms, downplaying the risk, saying "don't worry, nothing will happen," or hastily getting a pre-printed form signed on the morning of surgery is insufficient. If the patient is elderly, has limited literacy, speaks a foreign language, or is under stress, the information should be tailored to their needs.

For example, simply telling a patient undergoing cosmetic surgery that "rhinoplasty will be performed" is not enough. The patient must be informed that the exact shape of the nose cannot be guaranteed, the possibility of revision, breathing problems, asymmetry, scarring, bleeding, infection, and the healing process must be explained. Similarly, a patient undergoing dental implant surgery must be informed about nerve damage, the possibility of implant failure, bone requirements, infection, and alternative treatments.

Is signing a consent form always sufficient?

No. The consent form is important evidence; however, it is not always sufficient on its own. Forms that are pre-printed, generic, non-personalized, and do not concretely explain the risks of the transaction may be deemed insufficient in case of a dispute.

For a consent form to be valid, it must clearly state which procedure the patient is consenting to. The form should include the name of the procedure, its risks, alternatives, explanations given to the patient, date, time, patient's signature, physician's signature, and, if necessary, information about the interpreter or witness. Written consent is also important for major surgeries. Article 70 of Law No. 1219 stipulates that physicians and dentists must obtain the prior consent of the patient, or their guardian or trustee if the patient is a minor or has limited capacity, for all types of surgeries they will perform; and that this consent must be in writing for major surgical procedures.

However, even if the patient has signed the form, its validity is questionable if its contents were not explained to the patient, if the patient signed under duress, if the form was signed after surgery, if the patient was given false information, or if the form relates to another procedure.

What is the scope of consent?

A patient's consent is valid for a specific medical procedure. If a patient consents to appendicitis surgery, this consent does not, as a rule, extend to all other procedures without limitation. If a patient consents to rhinoplasty, the physician cannot perform another cosmetic procedure based on this consent without the patient's approval.

The Patient Rights Regulation stipulates that a patient's consent may cover routine procedures that are necessary and considered essential as part of the medical intervention process; however, the medical intervention itself must remain within the limits of the consent given by the patient. The regulation also states that if it becomes necessary to expand the procedure during the intervention, and if not expanding it results in a medical necessity such as the loss of an organ or inability to perform its function, the intervention may be expanded without requiring consent.

This arrangement is important. For example, if unexpected and life-threatening bleeding is detected during surgery, the physician may need to perform life-saving additional procedures. However, for non-urgent, pre-planned, patient-preferred, or aesthetically pleasing additional procedures, separate consent must be obtained.

What conditions are required for consent to be valid?

For consent to be valid, the patient must first have the capacity to understand and make the decision freely. If the patient is under the influence of heavy medication, unconscious, in intense pain or panic, or in a state where they cannot understand what they are signing, the consent obtained becomes questionable.

The second requirement is that the patient has been adequately informed. If the patient signs without being informed about the procedure, this signature may not constitute legally strong consent. The Patient Rights Regulation considers it essential that the patient or their legal representative be informed and enlightened about the subject and consequences of the medical intervention when consent is obtained.

The third condition is that consent must not be contrary to law or morality. The Patient Rights Regulation stipulates that consent obtained contrary to law or morality is null and void, and no intervention can be based on such consent.

The fourth condition is that consent must be specific and concrete. General statements such as "I accept all interventions" may not be sufficient, especially for risky or irreversible procedures. Consent specific to the procedure to be performed must be obtained.

Is Consent Required in Emergency Situations?

Emergency situations constitute the most important exception to the consent rule in medical intervention. A patient may be unconscious, in critical condition, experiencing severe bleeding, respiratory failure, having a heart attack, unconscious as a result of a traffic accident, or in a situation where a vital organ will be damaged if immediate intervention is not provided.

According to the Patient Rights Regulation, consent is not required in cases where the patient, their guardian, or legal representative is absent, unavailable, or incapacitated. Furthermore, consent is not required if obtaining permission from a legal representative or the court would take time and if immediate intervention would endanger the patient's life or a vital organ.

This exception is not unlimited. In case of an emergency, the physician can perform the necessary life-saving intervention. However, after the emergency has passed, the patient or legal representative should be informed about ongoing treatments, and a consent process should be initiated if possible. Furthermore, the reason for the emergency intervention should be clearly stated in the patient's file.

For example, a patient who is unconscious after a traffic accident may not need to wait for their relatives to arrive before undergoing surgery to stop bleeding. However, non-urgent cosmetic or elective procedures on the same patient cannot be performed without their consent under the pretext of emergency intervention.

Consent in Young and Limited Patients

If the patient is a minor or has limited legal capacity, permission is generally obtained from the parent or guardian. The Patient Rights Regulation states that in the case of a minor or patient with limited legal capacity, consent must be given by the parent or guardian; however, in cases where the legal representative is absent, unavailable, or the patient lacks the capacity to express their consent, the requirement for consent is waived.

However, it is also incorrect to assume that the young patient is completely unwilling to cooperate. The procedure should be explained appropriately to children, especially those who are old enough and mature enough to understand, and the child should be involved in the process as much as possible. The best interests of the child are paramount.

If the legal guardian does not consent to a medically necessary intervention, a court order may be required in some cases. However, if waiting for a court order would endanger the child's life or vital organs, an emergency intervention exception comes into play. This is particularly important in cases such as blood transfusions, emergency surgery, intensive care, and severe infections.

The Right to Refuse Treatment and Withdraw Consent

As a rule, a patient may refuse treatment or withdraw their consent. This right is a natural consequence of the right to make decisions about one's own body. The Patient Rights Regulation stipulates that consent can always be withdrawn, except in emergency situations threatening life or vital organs, and that withdrawal of consent constitutes a refusal of treatment.

The medical consequences of a patient's refusal of treatment should be explained to them. The physician should explain to the patient the risks of not undergoing treatment and record this information. If the patient refuses treatment after being informed, this wish should, as a rule, be respected.

However, the right to refuse treatment must be balanced with the physician's obligation to provide urgent intervention. If the patient is unconscious or lacks the capacity to make decisions, and immediate intervention would result in death or serious harm, intervention may be performed without consent. Therefore, in each case, the patient's capacity to make decisions, the urgency, the medical necessity, and the scope of the intervention are considered together.

In what situations does non-consensual medical intervention occur?

Medical intervention without consent can manifest in many different ways. Examples include performing surgery without the patient's consent, performing additional procedures during surgery that are outside the scope of consent, performing cosmetic surgery differently than the plan agreed upon by the patient, cutting or extracting healthy teeth in dental treatment without the patient's consent, performing childbirth without consent, and failing to obtain the necessary consent for sterilization or termination of pregnancy.

The Patient Rights Regulation stipulates that in cases of sterilization and termination of pregnancy, in addition to the patient's consent, the consent of the spouse is also required if the patient is married. Since such procedures can have irreversible or serious personal consequences, the consent requirement is evaluated with greater sensitivity.

Intervention without consent is not limited to major surgeries. Taking biopsies, drawing blood, injecting drugs, administering sedation, including a patient in a medical study, or taking photographs/videos for educational/promotional purposes without explaining the patient's situation can also create legal problems depending on the specific circumstances.

Consent in Medical Research

In medical research, experimental treatments, and clinical trials, consent is evaluated much more strictly. The Patient Rights Regulation stipulates that no one can be subjected to medical intervention for experimental, research, or educational purposes without the permission of the Ministry and their own consent; and that in medical research, the expected medical benefit and public interest cannot outweigh the protection of the volunteer's life and bodily integrity.

Therefore, if a patient is included in a study while believing they are receiving routine treatment, if experimental drugs or methods are administered, if the nature of the study is not disclosed, or if a voluntary consent form is not obtained in accordance with proper procedure, serious legal and criminal liability may arise.

Research consent also differs from treatment consent. A patient may consent to surgery or treatment; however, this does not automatically mean they consent to the use of their data, tissues, or images for research purposes.

Legal Consequences of Intervention Without Consent

Medical intervention performed without the patient's consent may constitute an unlawful act. According to Article 49 of the Turkish Code of Obligations, a person who causes harm to another through a negligent and unlawful act is obligated to compensate for that harm. The provisions of the same Code concerning bodily harm regulate items such as treatment expenses, loss of earnings, losses arising from the reduction or loss of working capacity, and disruption of economic future.

If a patient suffers bodily harm as a result of an intervention without their consent, they may claim additional treatment costs, re-operation expenses, medication costs, rehabilitation, caregiver expenses, disability benefits, loss of income, loss of professional experience, and damage to their future economic prospects. Even if the intervention did not cause bodily harm, compensation for non-pecuniary damages may be awarded because the individual's right to make decisions about their own body has been violated.

Article 56 of the Turkish Code of Obligations stipulates that in cases of bodily harm, the judge may award moral damages according to the specifics of the incident; and in cases of serious bodily harm or death, moral damages may also be awarded to the injured party or the relatives of the deceased.

Non-Consent Intervention in a Private Hospital

If a non-consensual intervention occurs in a private hospital, private clinic, medical center, aesthetic center, dental clinic, or private practice, private law liability arises. The private hospital is responsible not only for the physician performing the procedure but also for ensuring proper information processing, consent forms, patient records, operating room organization, nursing services, and an institutional patient safety system.

A private hospital might defend itself by saying "the form was signed." However, it should be investigated whether the form was actually signed before the procedure, whether the patient was given an explanation, whether the form is appropriate for the specific procedure, whether the risks are written down, the patient's language and comprehension level, and whether the patient was given sufficient time to think.

Since private healthcare services are obtained for a fee, breach of contract, tort, consumer law, and malpractice liability may all arise depending on the specific case. In areas such as cosmetic surgery, dental treatment, hair transplantation, IVF, and obesity surgery, where the procedure promised to the patient differs from the procedure actually performed, the concept of consent becomes particularly important.

Non-Consent Intervention at State Hospital

In most cases, non-consensual medical intervention performed in a state hospital, city hospital, training and research hospital, or public university hospital falls under administrative law. Healthcare services provided in public hospitals are public services. If this service is poorly performed, delayed, or performed unlawfully, the administration's fault in providing the service arises.

According to Article 13 of the Administrative Procedure Law, individuals whose rights have been violated by administrative actions must apply to the relevant administration for the fulfillment of their rights within one year from the date they learned of the action, and in any case within five years from the date of the action, before filing a lawsuit; if the request is rejected or no response is given within thirty days, a lawsuit may be filed.

Therefore, instead of directly filing a lawsuit in the judicial system for cases of non-consensual interventions in public hospitals, depending on the nature of the incident, it is preferable to apply to the relevant administration and then pursue a full judicial review case in the administrative court. The application should clearly state the date of the intervention, the procedure performed, the reason for the lack of consent, the resulting damage, the requested records, and the compensation items.

Criminal Liability for Non-Consent Medical Intervention

Medical intervention without consent can also have consequences under criminal law. Article 26 of the Turkish Penal Code stipulates that no one shall be punished for an act committed within the scope of consent given by the individual regarding a right over which they have absolute control. This provision shows that valid consent can, in some cases, be a justification for legality.

If valid consent is not obtained, medical intervention may be evaluated in terms of different types of crimes depending on the specific circumstances, such as intentional injury, negligent injury, abuse of office, deprivation of liberty, crimes against sexual integrity, abortion, sterilization, or violation of privacy. Which crime is constituted is determined by the type of intervention, the physician's intent, the severity of the harm, and the circumstances of the case.

Article 86 of the Turkish Penal Code stipulates that anyone who intentionally causes pain to another person's body or causes impairment of their health or sensory abilities shall be punished. If a medical intervention is performed without valid consent and legality, a criminal law assessment may be made, particularly regarding procedures that cause bodily harm.

However, there are also special procedures for criminal investigations into medical procedures and practices carried out by healthcare professionals. According to Article 18 of the Annex to Law No. 3359 on Basic Health Services, the provisions of Law No. 4483 shall apply to investigations into medical procedures and practices related to examination, diagnosis, and treatment within the scope of the practice of the healthcare profession by physicians, dentists, and other healthcare professionals working in public or private health institutions, and permission for investigation shall be granted by the Professional Responsibility Board within the Ministry of Health.

What types of compensation can be claimed for non-consensual intervention?

A patient may claim financial and non-financial compensation for medical intervention performed without their consent. Financial compensation may include reimbursement for treatment costs, re-operation expenses, medication costs, rehabilitation, psychological support, caregiver expenses, loss of earning capacity, loss of income, disruption of economic future, and reimbursement of the fee paid for the intervention.

Compensation for non-pecuniary damages is crucial in such cases. This is because the patient may have suffered not only physical harm but also a violation of their right to make decisions about their own body. Being subjected to unwanted surgery, cosmetic procedures, tooth extractions, or other medical treatments can cause significant non-pecuniary harm.

For example, if a patient consents to a specific procedure on her uterus but is subjected to a procedure that causes infertility without her consent, then not only the treatment costs but also the serious harm to her personal rights, family life, reproductive rights, and moral integrity are discussed. Similarly, if a patient consents to a limited intervention for an aesthetic procedure but undergoes a more extensive and irreversible procedure, the damage to self-confidence, social life, and psychological well-being becomes significant in calculating compensation.

How can unauthorized intervention be proven?

In cases of non-consensual medical intervention, the basis of proof is the patient's file. The patient or their family should request consent forms, surgical notes, anesthesia forms, nurse observation records, discharge summaries, examination notes, consultation records, before and after photos, invoices, payment receipts, WhatsApp messages, appointment records, and, if available, camera recordings.

Since the Patient Rights Regulation governs the patient's right to review and obtain copies of their health files and records directly or through a representative, healthcare institutions cannot refuse to share patient files.

The following questions are important in terms of proof: Is there a consent form? When and at what time was the form signed? Is the form specific to the procedure? Were the risks explained to the patient? If the patient is a foreigner, is there an interpreter? If the patient is a minor or has limited capacity, is there parental/guardian consent? Did the procedure exceed the limits of the consent given? If there is a claim of emergency, is there a genuine life-threatening risk? These questions will be decisive in the expert and court assessment.

The Importance of Expert Reports

In cases of non-consensual medical intervention, expert reports are important in two ways. Firstly, they examine whether the intervention was in accordance with medical standards. Secondly, they assess whether the intervention was within the scope of consent, whether emergency and necessary expansion conditions were met, and whether the patient was adequately informed.

The expert witness must answer the following questions: What procedure was performed? To what procedure did the patient consent? Did the procedure exceed the limits of the consent given? Was there an emergency medical necessity during the intervention? Would the patient have suffered organ loss or life-threatening danger if the intervention had not been expanded? Were the risks and alternatives explained to the patient? Is the consent form appropriate for the specific intervention? Did the patient suffer any material or moral damages as a result of the non-consensual procedure?

Objections should be raised to incomplete expert reports. In particular, simply stating that "the procedure was medically successful" is insufficient. In cases of non-consensual intervention, the issue is not always whether the procedure was successful; it must also be assessed whether the patient's right to make decisions about their own body has been violated.

What should the patient or their relatives do?

If it is suspected that a medical procedure was performed without the patient's consent, the first step is to request all patient records in writing. Consent forms, surgical notes, anesthesia records, discharge summaries, pre-procedure examination records, and all documents related to the procedure should be obtained.

The second step is to create a chronology of events. What was the patient's initial complaint? What was the patient told? Which procedure did they consent to? Which procedure was performed? When was the consent form signed? What did the patient learn after the procedure? When did the harm occur? This chronology is crucial for legal assessment.

The third step is to correctly distinguish between private and public hospitals. In private hospitals, private law, contractual liability, consumer law, and compensation claims come into play; in public hospitals, administrative appeals and full judicial review cases arise.

The fourth step is to evaluate the criminal process. If the intervention without consent has resulted in bodily harm, organ loss, permanent disability, infertility, death, or a serious violation of personal rights, a complaint to the prosecutor's office and the Professional Liability Board process may be initiated.

Conclusion: Patient consent is a fundamental legal requirement for medical intervention

Medical intervention performed without the patient's consent can have serious consequences under Turkish law, encompassing patient rights, private law, administrative law, and criminal law. As a rule, individuals have the right to decide on interventions to be performed on their own bodies. This right is protected by the provisions of the Constitution concerning bodily integrity, the Patient Rights Regulation, Law No. 1219, the Biomedical Convention, and general legal principles.

Valid consent is not merely a signature. The patient must be adequately, clearly, and concretely informed about the procedure; they must learn about the risks, alternatives, and outcomes; and they must make a decision of their own free will. Except in cases of emergency and life-threatening necessity, interventions performed without the patient's consent may be considered unlawful.

A successful legal process in such cases is possible only by evaluating the consent form, patient file, surgical notes, anesthesia records, discharge summary, correspondence, witnesses, expert opinion, and expert report together. The patient can claim compensation for treatment expenses, re-intervention costs, disability, economic future loss, and moral damages due to a procedure performed without their consent. In cases of serious bodily harm, organ loss, or death, the patient's relatives also have the right to compensation.