Surgery or medical intervention without the patient's consent

What is medical intervention without the patient's consent?

Medical intervention without a patient's consent includes performing surgery, treatment, injections, medication, cosmetic procedures, blood tests, childbirth, abortions, sterilizations, tooth extractions, biopsies, endoscopy, angiography, intensive care interventions, or similar health procedures without obtaining the person's explicit and legally valid consent.

In Turkish law, medical interventions on the human body are, as a rule, to the patient's consent . Article 17 of the Constitution regulates the right to protect and develop one's physical and moral existence; it states that no one's bodily integrity can be violated except in cases of medical necessity and those stipulated by law. This constitutional guarantee clearly demonstrates why consent is a central concept in medical interventions.

The Patient Rights Regulation also explicitly sets forth the same principle. According to the regulation, except for the exceptions specified in the law, no one can be subjected to medical procedures without their consent or in a manner inconsistent with the consent given. Furthermore, the patient's consent is required for medical interventions; if the patient is a minor or has limited capacity, permission must be obtained from their guardian or legal representative.

Therefore, surgery or medical intervention performed without consent is not only an ethical issue in the patient-doctor relationship. It can also have consequences in terms of personal rights, bodily integrity, patient rights, contract law, compensation law, and in some cases, criminal law.

What is Informed Consent?

Informed consent is when a patient freely consents to a medical procedure after being adequately, clearly, understandably, and concretely informed about it. The important thing here is not simply having the patient sign a form. The patient must be informed in a way that allows them to understand what the procedure is, why it is necessary, alternative treatment options, the risks of the procedure, the probability of success, the consequences of refusing treatment, and the post-procedure process.

According to Article 31 of the Patient Rights Regulation, it is 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 same article also stipulates that the medical intervention must remain within the limits of the consent given by the patient.

Therefore, excuses such as "the patient underwent surgery," "hospital documents were signed," or "the patient already wanted treatment" are not sufficient in every case. For consent to be legally valid, the patient must have been genuinely informed. The scope of information is even more crucial, especially in cases of surgery, anesthesia, childbirth, cosmetic surgery, dental implants, organ removal, biopsy, cancer treatment, psychiatric hospitalization, IVF treatment, or risky drug administration.

Is signing the consent form sufficient?

No. In practice, many healthcare facilities simply have patients sign a printed consent form and consider this sufficient. However, informed consent is not merely a matter of signing. The patient must understand what is being explained to them; they must be realistically informed about the procedure; and they must give their consent freely, not under pressure, intimidation, deception, or with incomplete information.

According to the Patient Rights Regulation's provisions regarding consent forms, a consent form is prepared for situations stipulated in the legislation and for interventions that are medically likely to lead to a conflict; the information on the form is verbally conveyed to the patient, signed in duplicate, one copy is placed in the patient's file, and the other copy is given to the patient or their legal representative. The consent form must also be signed by the healthcare professional who provides the information and will perform the intervention.

This regulation shows that the form is not merely a procedural document, but a means of proving the information process. For example, if the patient is illiterate, does not speak Turkish, is under severe stress, is under sedation, is unconscious, or is unable to understand the content of the document they are signing, the validity of the consent form becomes questionable.

What process does consent encompass?

A patient's consent is limited only to the medical procedure they have agreed to. If a patient consents to gallbladder surgery, this consent, as a rule, does not cover intervention in another organ. If a patient consents to a biopsy, this consent does not imply a broad surgical intervention. If a patient consents to rhinoplasty, it may be unlawful for the physician to perform a different aesthetic procedure without the patient's consent.

The Patient Rights Regulation stipulates that the patient's consent covers routine procedures that are necessary and essential for the continuation of the medical intervention; however, the intervention must remain within the limits of consent. Expanding the intervention may only be possible without consent if there is a medical necessity and if not expanding the intervention would result in organ loss or loss of organ function for the patient.

This distinction is crucial in practice. It is possible for a physician to encounter unexpected situations during surgery. However, not every unexpected situation justifies additional intervention without consent. Additional intervention requires a genuine and urgent medical necessity, and it must be objectively demonstrated that the patient would suffer serious and irreparable harm if the intervention is not performed.

Is Consent Required in Emergency Situations?

Emergency situations constitute the most important exception to the principle of consent. If the patient is unconscious, unable to express themselves, their legal representative cannot be reached, and their life or a vital organ will be in serious danger if immediate intervention is not provided, medical intervention may be performed without obtaining consent.

Article 24 of the Patient Rights Regulation stipulates that consent is not required in cases where the patient's guardian or legal representative is absent, unavailable, or the patient lacks the capacity to express their consent. The same article also stipulates that consent is not required in situations where reaching a legal representative or the court would take time, and where immediate intervention would endanger the patient's life or a vital organ.

However, the emergency exception cannot be interpreted broadly. If the patient is conscious, capable of making decisions, and refuses intervention, their will cannot be completely disregarded simply because the physician deems intervention necessary. The emergency intervention exception should only apply in cases of genuine necessity to protect the patient's life or vital organs.

Patient's Right to Refuse Treatment

As a rule, the patient has the right to refuse the proposed treatment. Even if the medical intervention is in the patient's best interest, the patient may refuse treatment or withdraw previously given consent after being informed. This may be especially true in cases of surgery, blood transfusions, chemotherapy, intensive care interventions, childbirth, cosmetic procedures, or risky drug treatments.

The Patient Rights Regulation states that consent can be withdrawn at any time except in emergency situations; withdrawing consent means refusing treatment.

If a patient refuses treatment, the physician must explain the consequences of refusing treatment and record this refusal in writing. If the patient refuses medical intervention in an emergency, this statement must be signed; if the patient refuses to sign, the situation must be documented in a report. This record is important both for protecting the patient's rights and for preventing healthcare personnel from facing unfair accusations in the future.

Consent in Minor or Limited Patients

If the patient is a minor or has limited capacity, parental consent is generally required. However, if the child or person with limited capacity is capable of understanding, they should participate in the information process and treatment decision-making as much as possible. This approach stems from the principle of respecting the patient's human dignity, personal rights, and bodily integrity.

The Patient Rights Regulation stipulates that even in cases where the consent of the legal representative is sufficient, minor or incapacitated patients must be heard to the extent they can understand and their participation in treatment decisions must be ensured. Furthermore, measures must be taken to provide disabled patients with appropriate information and obtain their consent.

If the legal representative does not consent to a medically necessary intervention, and failure to perform the intervention would cause serious harm to the child or incapacitated patient, a court order may be required. However, if immediate intervention poses a threat to life or vital organs, consent may not be necessary.

Written Consent Required for Surgery

In Turkish law, written consent is of particular importance for major surgical procedures. According to Article 70 of Law No. 1219 on the Manner of Practice of Medicine and Related Professions, physicians, dentists, and dental technicians must obtain the prior consent of the patient, or of the guardian or trustee if the patient is a minor or incapacitated, for all procedures they perform; in major surgical operations, this consent must be in writing.

This regulation is particularly important for surgeries, dental surgery, implants, cosmetic surgery, childbirth, organ and tissue procedures, anesthesia, biopsies, and risky interventions. If written consent is missing, or if the consent form is general, vague, and does not include patient-specific risks, it creates a problem of proof for the healthcare institution and the physician.

Here, the burden of proof is of paramount importance in practice. When a patient claims, "I wasn't informed about the risks," the physician or hospital must be able to demonstrate with concrete records that the patient was adequately informed. Therefore, consent forms, information notes, doctor's consultation records, patient files, and witness statements can be decisive in the litigation process.

Legal Consequences of Non-Consent Medical Intervention

Medical intervention performed without the patient's consent may be unlawful. In such a case, depending on the specific circumstances, the patient may claim compensation for material damages, moral damages, treatment expenses, loss of earnings, caregiver expenses, permanent disability, and violation of personal rights.

Article 49 of the Turkish Code of Obligations stipulates that a person who causes harm to another through a culpable and unlawful act is obligated to compensate for that harm. Article 56 of the same Code allows for the awarding of moral damages in cases of injury to bodily integrity; and in cases of serious bodily harm or death, moral damages may also be awarded in favor of relatives.

Even if no physical harm occurs to the patient as a result of an intervention without consent, in some cases compensation for moral damages may arise. This is because the violation of a person's right to make decisions about their own body can, in itself, constitute a violation of personal rights. For example, if a patient did not consent to a medically correct procedure and the procedure was performed without their knowledge, simply stating that "the result was good" does not completely eliminate the illegality.

Liability under Criminal Law

Medical intervention performed without the patient's consent may, in some cases, give rise to criminal liability. If the intervention has violated the patient's bodily integrity, the provisions regarding intentional injury or negligent injury may be discussed, depending on the nature of the incident. Article 86 of the Turkish Penal Code regulates the act of intentionally causing pain or harm to another person's health, while Article 89 regulates causing injury to a person through conduct that violates the duty of care and diligence.

In cases of intervention without consent, criminal liability is assessed according to the specific circumstances of the case. A different assessment applies depending on whether the physician acted with the intention of harming the patient or whether they acted believing the medical intervention was necessary but neglected the legal requirements for consent. Furthermore, if death results from the intervention, negligent homicide or other types of crimes may also be considered.

In criminal investigations concerning medical procedures and practices of healthcare professionals, the Professional Responsibility Board process may be initiated under Article 18 of the Annex to Law No. 3359 on Basic Health Services. According to this article, in investigations concerning medical procedures and practices related to examination, diagnosis, and treatment by physicians, dentists, and other healthcare professionals working in public or private healthcare institutions, permission for investigation is granted by the Professional Responsibility Board.

Non-Consent Intervention in a Private Hospital

If an involuntary surgery or medical intervention takes place in a private hospital, private clinic, medical center, dental clinic, or aesthetic center, private law liability arises. In most cases, there is a contractual relationship between the patient and the private hospital based on the provision of healthcare services. Therefore, physician error, hospital organizational failure, insufficient information, lack of consent form, and unlawful intervention are all considered together.

A private hospital may be held responsible not only for the conduct of the physician performing the procedure, but also for its patient admission system, information process, preparation of consent forms, operating room organization, anesthesia process, nursing services, record keeping, and patient safety.

For example, if a patient is told only a "minor procedure" will be performed, but a more extensive surgical intervention is carried out in the operating room; if a patient agrees to a different procedure as part of an aesthetic treatment, but a different area is treated without their consent; or if, during dental treatment, a tooth is extracted instead of a tooth that was to be treated; it is possible to file a lawsuit for material and moral damages against the private hospital and the doctor.

Non-Consent Intervention at State Hospital

If a medical intervention without consent occurs in a state hospital, city hospital, training and research hospital, or public university hospital, administrative law proceedings often arise. Healthcare services provided in state hospitals are considered public services. The unlawful provision of this service, insufficient information provided, or intervention performed without consent can be alleged as administrative negligence.

In this situation, the patient or their relatives should generally file a full judicial review case in the administrative court after applying to the relevant administration. A person harmed by administrative actions must apply to the administration within one year from the date they learned of the harm or the action, and in any case within five years from the date of the action. If the administration rejects the request or fails to respond within the time limit, the litigation process begins.

If there is an allegation of an intervention without consent at a state hospital, the patient's file, consent form, surgical notes, anesthesia form, discharge summary, nurse observation forms, interviews with the patient's relatives, and any available camera or recording information must be requested. This is because the administration must be able to demonstrate from the records that the patient was informed and valid consent was obtained.

Consent and Information in Cosmetic Surgery

Informed consent is even more crucial for cosmetic surgeries and medical aesthetic procedures. This is because these procedures are often not urgent or necessary treatments, but rather interventions performed due to the individual's expectations regarding their appearance. In procedures such as rhinoplasty, breast augmentation, liposuction, tummy tuck, facelift, fillers, Botox, hair transplantation, and similar treatments, the patient must be aware of the outcome, risks, complications, the possibility of revision, and whether the desired appearance is guaranteed.

In aesthetic procedures, physicians making definitive promises such as "it will be beautiful," "it will definitely be corrected," or "there will be no scarring" can also create additional liability. If a patient consents to the procedure based on unrealistic promises, this consent cannot be considered healthy and informed.

In cases of cosmetic procedures performed without consent or with insufficient information, the patient can claim not only compensation for physical harm but also for moral damages due to disfigurement, disruption of social life, psychological distress, and violation of personal rights.

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

If surgery or medical intervention is performed without the patient's consent, different types of compensation may arise depending on the outcome of the event.

Compensation claims may include medical expenses, re-operation costs, private hospital expenses, medication costs, physical therapy and rehabilitation costs, transportation costs, caregiver costs, temporary disability, permanent disability, loss of earnings, and disruption of economic future.

Non-pecuniary damages are claimed due to unauthorized procedures performed on a person's body, fear, pain, loss of security, psychological trauma, violation of bodily integrity, damage to privacy, impact on social life, and violation of a person's right to make decisions about their own body.

If the patient has died, their relatives may claim compensation for loss of support and moral damages. In the event of death, the claim of intervention without consent is considered serious, not only in terms of medical technical negligence, but also in terms of the patient's right to personality and right to life.

How can non-consensual medical intervention be proven?

Proving an alleged medical intervention without consent is crucial. The patient or their relatives should first request all medical records. These include the consent form, patient file, surgical notes, anesthesia form, discharge summary, nurse observation forms, intensive care unit records, prescriptions, laboratory results, imaging records, discharge papers, and patient information forms.

The Patient Rights Regulation governs the right of patients to directly examine and obtain copies of their health-related files and records, either directly or through their legal representative or proxy.

The following questions are important for evidentiary purposes: Is there a consent form? For what procedure was the form obtained? Does the form list the patient-specific risks? When was the patient signed the form? Was the patient conscious and capable of making decisions at the time of signing? Is the physician's signature on the form? Was a copy given to the patient? Is the intervention the same as the procedure for which consent was given? If the intervention was expanded during the surgery, was there a genuine medical necessity?

The answers to these questions directly affect the outcome of the case. Generic, printed, incomplete forms, or forms signed under duress just before the transaction, may not always be considered sufficient.

The Importance of Expert Reports

In cases of non-consensual medical intervention, expert reports are often decisive. However, expert examination should not be limited solely to whether the intervention complied with medical standards. Because in cases of non-consensual intervention, illegality can arise even if the procedure is technically correct.

The expert report should address the following questions: Was the patient adequately informed about the procedure? Is the consent form compliant with regulations? Does the consent cover the intervention performed? If the procedure was extended during the intervention, was there a medical necessity? Did the patient have the capacity to make decisions? Was there a genuine emergency? Is there a causal link between the patient's harm and the intervention?

Incomplete expert reports should be challenged. Reports that merely state "the surgery was performed in accordance with medical standards" without discussing the issue of consent are particularly inadequate. If the case concerns not a technical surgical error but a lack of informed consent or intervention without consent, the expert report must take this legal-medical distinction into account.

What should the patient or their relatives do?

If there is suspicion of surgery or medical intervention without consent, the first step is to request all medical records in writing. A copy of the entire file, including consent forms, should be requested from the hospital's chief physician, the private hospital management, or the patient rights unit.

Secondly, a chronology of the event must be established. Why did the patient visit the hospital? What procedure was described? Which forms were signed? When was the surgery or intervention performed? What procedures were later discovered? What harm did the patient suffer? Clarifying these dates is crucial for both the litigation and the criminal process.

Thirdly, a distinction should be made between private and public hospitals. In private hospitals, legal avenues under private law and consumer law apply; in public hospitals, recourse to the administration and a full judicial review case come into play. Regarding criminal liability, depending on the nature of the incident, a request to the prosecutor's office and the process before the Professional Liability Board should be evaluated.

Fourthly, the types of damages must be determined. If the intervention without consent has resulted in bodily harm, psychological harm, loss of earning capacity, additional treatment costs, permanent scarring, organ loss, loss of fertility, or death, compensation claims should be tailored accordingly.

Conclusion: Patient consent is a prerequisite for the legality of medical intervention

Performing surgery or medical intervention without a patient's consent is one of the most serious violations of patient rights in health law. Every intervention on the human body infringes upon the patient's bodily integrity and personal rights. Therefore, as a rule, the patient's informed and freely given consent is required for a medical intervention to be lawful.

Not every consent form is valid; not every signature constitutes informed consent. The procedure, risks, alternatives, probability of success, and outcomes must be clearly explained to the patient. The medical intervention must remain within the limits of the patient's consent. Consent may be waived only in genuine emergencies, when life or vital organs are at risk, and obtaining permission from the patient or their legal representative is not possible.

If the intervention without consent was performed in a private hospital, a lawsuit for material and moral damages may be filed against the doctor and the hospital; if it was performed in a state hospital, an appeal to the administration and a full judicial review lawsuit may be initiated. Furthermore, depending on the nature of the incident, a criminal investigation may also be launched.

Therefore, in cases where there are allegations of surgery or medical intervention without consent, patient files, consent forms, surgical notes, discharge summaries, and other medical records should be collected without delay; and it should be assessed whether the intervention exceeded the scope of consent. In a well-prepared case file, the patient can claim not only compensation for physical harm but also for the moral damage suffered due to the violation of their right to make decisions about their own body.