21 Union of Turkish Bar Associations Review 2022 Süleyman ÖZAR As also acknowledged by the World Medical Association, the refusal of medical treatment by the patient is a basic right that must be respected by the physician. Even if the striker’s life is at risk, no medical treatment should be provided in line with the final decision he/she has given when he/she was fully conscious.71 Therefore, it should be beyond doubt that a free person on death fast will possess and enjoy all rights that a patient has. The approach that no one may waive, of his own will, his fundamental rights and freedoms and that accordingly it is possible to intervene also with the hunger strike of free persons72 is no longer adopted. That is because, over the long years, there has been a shift, regarding the hunger strike, from a focus on the protection of right to life to the human dignity and personal autonomy. The incorporation of the principle of autonomy into the medical ethics and legal texts is not coincidental but a consequence of the stage that the human relations and personal rights have currently attained.73 From this standpoint, we consider that the views that no legal liability may be incurred in case of an intervention with the hunger striker due to state of necessity74 or legitimate self-defence75 in favour of a third person will no longer be applicable. Any involuntary medical intervention with hunger strike by free persons at any stage must entail legal and professional liability. B. Medical Intervention in case of Hunger Strike by a Convict or Detainee 1. Hunger Strike in Prisons from the standpoint of Turkish Legislation a. Article 298 of the Turkish Criminal Code In Article 298 § 2 of the Turkish Criminal Code no. 5237, titled “Prevention of the Exercise of Rights and Feeding”, it is set forth that the acts of 71 The report of 44th Assembly of the World Medical Association on September 1992; conveyed by Can Çelik, “İnsan Hakları Boyutuyla Zorla Besleme (Force-Feeding from the perspective of Human Rights)”, Fasikül Hukuk Dergisi, Vol.: 6, Issue: 53, April 2014, p. 53. 72 Feyzioğlu, p. 164. 73 Kurt, p. 200. 74 Soyaslan, “Açlık Grevi… (Hunger Strike…)”, p. 269. 75 Feyzioğlu, p. 166; Nur Centel & Hamide Zafer & Özlem Çakmut, Kişilere Karşı İşlenen Suçlar (Offences Committed against Persons), İstanbul 2007, p. 84.
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