14 Hunger Strike in the Pendulum of Ethics and Law c. Informed Consent The right to informed consent is the key difference between declarations giving consent to medical intervention and the expressions of consent specific to non-medical intervention. Due to the technical and sophisticated nature of medical intervention, the consent sought for medical interventions must also require sufficient elucidation. The person to declare his/her consent should be fully aware of the scope and content of the act or action to which he consents. Thus, as regards medical interventions, the notion “informed consent” comes into play in addition to the general conditions of a valid consent. In the very essence of volunatarily enduring the infringement of a right, there are the right to self-determination and the principle of human dignity.41 At this stage, informed consent enables a person to freely form his/her judgment about his own life, body, future and to determine his/her own destiny.42 Therefore, informed consent is a right that serves the purpose of protecting not only free will but also physical integrity.43 In this sense, it is set forth in Article 5 of the European Convention on Human Rights and Biomedicine44 that the consent to be given to a justification underlying the passive euthanasia remain insufficient vis-à-vis the applicable Turkish Criminal Code and cannot eliminate the need for a separate statutory arrangement that pay regard to the tortuous nature of this act, its arguable nature and anti-social degree. It is still uncertain whether the patient’s right to refuse medical treatment amounts to passive euthanasia. We consider that, within the framework of the patient’s right to medical treatment, there is a need, in Turkish Criminal Code, for a ground legalising merely passive (indirect) euthanasia. 41 Gülsün Ayhan Aygörmez, “Hukuki Kurum Rızanın, Tıp Ceza Hukukunda Geçerli Olarak Kurulması (Valid Functioning of Consent, as a Legal Institution, in the Medical Criminal Law”, Yeditepe Üniversitesi Hukuk Fakültesi Dergisi, Vol. 6, Issue: 2, December 2009, p. 138. 42 Yücel, “Medeni Hukuk Bakış Açısıyla… (… from the perspective of Civil Law)”, p. 197. 43 Munise Gülen Kurt, “Tıbbi Müdahalelerde Aydınlatılmış Onam (Informed Consent in Medical Interventions)”, Türkiye Barolar Birliği Dergisi, Issue: 146, 2020, p. 199. 44 “The Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine”, which was open for signature by the Council of Europe on 4 April 1997, was ratified by the Turkish Parliament on 3 December 2003 and took effect upon being promulgated in the Official Gazette dated 20 April 2004. This Convention comprehensively dealing with human rights issues in the health-care services, has a direct bearing on the Turkish domestic law pursuant to Article 90 of the Constitution.
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