Relationship between physician and patient is a mandatory relationship since patient’s life or an organ is in a risk, but he/she does not have any knowledge regarding this matter and physician is the only person who can help the patient or resolve his/her problems. Physician is at a higher point when compared to the patient but ideally this relationship should be based on trust. Patient should trust the physician and physician should make the patient trust him/her. First condition is to that physician should enlighten patient in a detailed manner regarding current sickness, treatment and possible results and more importantly patient or relative to confirm enlightenment regarding treatment and results can arise. Obtaining informed consent is the first step of physician’s enlightenment obligation. Enlightenment obligation should be fulfilled by physician before any actions taken in a suitable manner.

Relationship between physician and patient; generally, defined as a mandate contract at both doctrine and court practices. Like it is in relationship of physician and patient; enlightenment obligation has an important role also at mandate contracts arisen out of service relationships based on a special trust between proxy and appointor.

In Turkey, concepts of enlightenment and informed consent are regulated under various regulations including but not limited to Patient Rights Regulation.

Firstly, it is possible to find legal basis for enlightenment obligation which is a condition for consent of patient for medical intervention which it’s presence is mandatory for intervention besides exceptional situations which physician can conduct medical intervention at paragraph I of Article 17 of Constitution. It is regulated that every has the right to live, protect and develop material and spiritual presence, physical integrity of one’s cannot be intervened except necessity or situations regulated at law and no one can be held subject to scientific and medical experiments without him/her consent at the mentioned regulation. Same way, it is regulated that personal rights cannot be waived at Article 23 of Civil Code and consequences which people, who conduct unlawful intervention to personal rights and the values composing personality, shall face are regulated at Article 25 of Civil Code and Article 51 of Code of Obligations.

In addition to this, concepts of enlightenment and informed consent are regulated at many regulations, but these concepts are mainly regulated at Article 70 of Law numbered 1219, Article 15-18-22-24-25-31 of Ministry of Health Patient Rights Regulation, Article 14/2 of Medical Deontology Statute and Article 26 of Turkish Medical Association Medical Ethics Rules.

Most detailed regulation from the abovementioned regulations is Article 26 of Turkish Medical Association Medical Ethics Rules with the topic named “Informed Consent”. Physician shall inform patient regarding health status and diagnosis, type of treatment, chance and duration of treatment, risks of the treatment method for the patient’s health, use of drugs and possible side effects, consequences of the disease if the patient does not accept the proposed treatment, possible treatment options and risks, this enlightenment should be suitable for the patient’s social and psychological situation, patient should be able to understand the given information, patient shall determine the people who will be informed, any medical intervention can only be conducted with the consent of patient, consent shall be deemed void in case of pressure, threat, missing enlightenment or misleading, whose consent shall be received in case of emergency and patient can withdraw his/her informed consent anytime.

Even though Medical Ethic Rules are not obligatory regulations, they are considered as supplementary resources when interpreting legal regulations. In addition to this, if professional work ethic rules reached to professional customs level, they shall be considered as secondary law source in accordance with II. paragraph of Article 1 of Turkish Civil Code.

At international regulations; enlightenment and consent are included at Convention on Human Rights and Biomedicine being in the first place, Council of Europe Convention on Human Rights and Biomedicine, European Declaration of Sick Children, the European Status on Patient Rights and many declarations of the World Medical Association.

Besides the aforementioned legal regulations, as we have mentioned before, in the context of private law, the relationship between patient and physician is generally defined as a mandate agreement. Therefore, it is stated that the legal basis of the physician’s enlightenment obligation is the loyalty obligation of proxy.  Fulfilling enlightenment obligation of physician is possible with informing the patient completely before patient request any information with enabling him/her to determine his/her own future freely. Article 505 of Turkish Code of Obligations regulating proxy to act in the context of appointor’s orders and Article 508 of Turkish Code of Obligations regulating accountability responsibility of proxy can also be basis for enlightenment obligation of physician in addition to the loyalty obligation of proxy.

In our domestic laws, there are no definitions regarding how this consent should be obtained from the patient. But in Article 18/II of Patient Rights Regulation; it has been regulated that patient shall be informed verbally by the medical personnel who shall conduct the medical intervention. Accordingly, due to the current situation at our domestic regulations; even though it can be said that enlightenment can be conducted verbally or written, there is freedom to form; but it will be safe to inform the patient in a written manner as written proof for any case.

As it is clear from the above; enlightenment obligation is a condition of consent and is mandatory element for providing patient the freedom of act freely regarding his/her physical and psychological integrity and render patient capable to decide freely on planning and conducting treatment.

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