18 Hunger Strike in the Pendulum of Ethics and Law patient would have, in any case, consented to the medical intervention if he had not been in this situation is considered as a ground justifying the intervention.54 Koca and Üzülmez notes that in such cases, a conclusion must be reached not on the basis of a “factitious notion”, namely presumed consent, but through rules such as the exercise of a right or performance of a task.55 As a matter of fact, this must be regarded as the performance of duty in that the physician exercises his right inherent in the medical profession, which already makes the process lawful.56 As a matter of fact, the Regulation on Patients’ Rights is formulated in a way that assigns not a recommendation but a task to the physician. It should be noted that the notion, presumed consent, is not a means to be used for setting aside the patient’s right to self-determination. This theory has come into prominence in cases where the patient is unable to give consent but presumed to do so and for enabling the physician to perform his profession peacefully and protecting the patient’s interests.57 In this sense, medical necessity should not be regarded as a general justification for the inability to obtain patient’s consent but relied on as a basis only for the cases where it is not possible to take the patient’s consent and where delay is deemed prejudicial.58 In fact, it will be unreasonable to think that it is not necessary to seek the consent of every patient taken to the emergency department. It is necessary to receive patient’s consent as far as possible.59 In cases where the patient clearly refuses a medical treatment, his/her physical integrity must not be infringed on the ground of a “medical necessity”.60 54 Ceyda Ümit, “Hekimlerin Mesleklerinin Uygulanmasından Doğan Ceza Sorumluluğu (Criminal Liability of the Physicians resulting from the Performance of Their Profession)”, Türkiye Adalet Akademisi Dergisi, Year: 8, Issue. 32, October 2017, p. 209. 55 Koca & Üzülmez, p. 294; Sulhi Dönmezer & Sahir Erman, Nazari ve Tatbiki Ceza Hukuku (Theoretical and Practical Criminal Law), Vol.2, İstanbul 1994, p. 53. 56 Ahmet Gökcen, “Organ ve Doku Nakli Üzerine Düşünceler (Considerations on the Organ and Tissue Transplantation)”, SÜHFD Milenyum Armağanı, Vol.8, Issue.1-2, 2000, p. 64; Özlem Çakmut, Tıbbi Müdahaleye Rızanın Ceza Hukuku Açısından İncelenmesi (Assessment of Consent to Medical Intervention in terms of Criminal Law), İstanbul 2003, p.157. 57 Barış R. Erman, “Türk Hukukunda Tıbbi Müdahaleye Rıza ve Tedaviyi Ret Hakkı (Consent to Medical Intervention and Right to Refuse Treatment in the Turkish Law)”, Fasikül Hukuk Dergisi, Issue: 4, March 2010, p. 32. 58 Ümit, p. 209. 59 Erman, “Türk Hukukunda… (In Turkish Law…)”, p. 33. 60 Ümit, p. 209. In this respect, there are striking cases where the religious group,
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