17 Union of Turkish Bar Associations Review 2022 Süleyman ÖZAR ing sample from the body for the purpose of obtaining evidence, is an example of the exceptional case stemming from the law. As indicated in the CCP, the competent body to order such an intervention is either judge or the prosecutor in cases where delay is prejudicial. Upon this order, the medical intervention amounts to the performance, by the physician, of his duty (Article 24 § 2 of the TCC). Likewise, Article 72 of the Public Health Law no. 1593, which entails the mandatory vaccination in case of the diseases cited in Article 57 thereof, is one of the medical interventions prescribed by law. In that case, conducting the mandatory vaccination process, the physician will thus fulfil the relevant statutory provision (Article 24 §1 of the TCC). As regards the medical necessity, which is another exception to the consent requirement, there is an explanation in Article 24 § 7 of the Regulation on Patients’ Rights. Pursuant to the Regulation, in case of an emergency where no consent can be sought, if the patient is unconscious and he/she is in a life-threatening situation, no consent will be required for performing a medical intervention. In the same vein, if it is necessary to extend the scope of a medical intervention due to a circumstance that will lead to loss of an organ or prevent an organ’s proper functioning, no consent will be required for medical intervention. In both cases, the patient’s consent shall be sought for the medical interventions that will be carried out from the moment he regains consciousness (Article 24 § 7 in fine of Regulation on Patients’ Rights). Also Article 70 § 1 of Law no. 1219 sets forth “if the person to undergo an operation is unable to express his opinion”, the consent requirement must be disregarded. It is stated that in case of an intervention by the physician, who cannot seek the consent of the patient in life-threatening emergency cases, such intervention shall not entail any civil liability due to “genuine benevolent intervention in another’s affairs” (gerçek vekâletsiz iş görme).52 In terms of criminal liability, this situation is generally explained with the notion “presumed consent”.53 Accordingly, the presumption that the 52 Musa Furkan Şahin, “Hekimin Gerçek Vekâletsiz İş Görmeden Kaynaklanan Sorumluluğu (Physician’s Liability stemming from Genuine Benevolent Intervention in Another’s Affairs)”, Ankara Sosyal Bilimler Üniversitesi Hukuk Fakültesi Dergisi, Vol. 1 Issue:1, 2019, p. 145. 53 Centel & Zafer & Çakmut, p. 335.
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