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COVID-19 PANDEMIC, HEALTH LAW AND PATIENT RIGHTS

Patient rights have been brought to the agenda with the Covid-19, which was declared as a pandemic which started in Wuhan, China and spread to the world. The branch of law related to the regulations in the field of health is Health Law and the regulations on patient rights and violations are included in our legislation. The regulations in our legislation regarding patient rights, patient obligations and violations of patient rights will be briefly explained below.

Health Law and Regulations in Our Country

It should be indicated that; health law is a branch of law related to civil law, criminal law and administrative law. Patient rights, the obligations of the patient, physician and health personnel, and the responsibility of the physician and health personnel due to violations are the areas covered by the Health Law.

In terms of our country, the sources of Health Law are the Constitution, the Law of Obligations, the Civil Code, the Turkish Penal Code, the Patient Rights Regulation, the Patient Rights Enforcement Circular dated 1998, the By-Law of Medical Deontology and the Law Numbered 1219.

From the mentioned sources, especially the Patient Rights Regulation is an important resource for possible disputes as it includes comprehensive regulations in terms of patient rights regulations.

The patient rights and obligations regulated in accordance with the Health Law principles and legislation will be discussed below.

Patient rights:

Patient rights are one of the rights associated with the right to life and the right to health. The right to life and the right to health are guaranteed with the Constitution. (Article 17 of Constitution: Right to live, Article 56 of Constitution: Right to live in a healthy environment) It should not be forgotten that; health is a right that every individual should benefit equally. The patient rights and contents will be briefly explained blow.

  • The Right to Get Health Care in Accordance with Justice and Equity: In connection with the right to health and life guaranteed by the Constitution; the patient has the right to request that the health service to be provided to him/her be given in a fair and equitable manner. As a counterpart of the principle of equality protected by the Constitution in health law; Regardless of the personality and gender of the patient, every individual has the right to a fair and equal health service.
  • The Right to Enlightenment and Information: In connection with the physician’s obligation to enlighten the patient, the patient has the right to obtain information about the diagnosis and treatment. The physician should enlighten the patient in terms of diagnosis and treatment and share information with the patient in detail about possible risks and alternatives. The right to enlightenment and information is valid not only at the beginning of the treatment but also in the continuation of the treatment and in the post-treatment control phase. The enlightening related to the treatments and practices is a right for the patient, an obligation for the physician and the health personnel. Within the scope of the right of enlightening, the physician should inform the patient in detail during diagnosis, treatment and post-treatment processes. If the right of enlightening is violated and the patient suffers from it, the administrative, criminal and legal responsibility of the physician may arise.
  • Right to Privacy: The right to privacy is one of the most important aspects to be considered in the treatment and diagnosis phases. The right to privacy is not only related to personal data, the patient’s image, voice, etc. should not be registered. Also, during treatment and diagnosis, situations such as the person being seen by 3rd persons should be prevented by means of vehicles cover, curtain etc.
  • The Right to Choose the Health Institution and If Possible, the Right to Choose the Physician who will Administer the Treatment: The patient has the right to choose the health institution while receiving the health service. Also, if there is more than one physician in terms of the related healthcare area, the patient has the right to choose the physician.
  • Right to Wait for his/her Consent to be Received for the Treatment: The patient has the right to wait for his/her consent to be received for treatment to be administered, except in an emergency.
  • Right to Refuse or Stop Treatment: The patient has the right to refuse or stop treatment. In Article 25 of the Patient Rights Regulation, the scope of this issue has defined. The patient has the right to stop or refuse treatment, except when required by law. Stopping or refusing treatment does not mean that he cannot exercise his right to receive the treatment later.
  • Right to Request the Practice of Personalized Diagnosis and Treatment Methods: Since each patient has subjective features, they have the right to request that personalized diagnosis and treatment methods be administered to themselves.
  • Right to Receive Healthcare Service in a Safe Environment: The patient has the right to request that the health service be provided to him/her in a safe environment. The current environment must be safe and sterile while the patient receives healthcare service. In this context, all protective and preventive measures should be taken.
  • The Right to Ask to Keep the Records Confidential and to Have the Records Delivered to Them When Requested: The patient has the right to request that his/her data be kept confidential, in connection with his/her right to privacy. Essentially, patient data should be recorded in a way that prevents third parties from accessing and obtaining information. When the patient requests, the relevant records should be given to him/her. Particularly in terms of the Covid-19 pandemic, sharing the patient’s name, image or voice with 3rd parties is a serious violation in terms of patient rights.
  • Right to Have a Companion: The patient has the right to have a companion with him/her while receiving the health services.
  • The Right to Ask Not to be Put Under Excessive Expenses During the Treatment and to Request the Treatment As Much As Needed: The patient has the right to request the healthiest treatment to be administered as the least painful and low budget possible.
  • The Right to Require the Requirement for Providing the Required Environment to Fulfil Religious Duties: The patient may wish to perform religious duties in connection with the freedom of religion and conscience. In this case, the institution providing the health service must allocate a suitable area for the patient to worship.
  • Right to Request Service of Latest Technology: The patient has the right to receive healthcare services by using the latest technology possible in today’s conditions during diagnosis and treatment.  In terms of state hospitals, the possibility of failing to provide the relevant equipments may be considered due to problems such as budget but, in accordance with the social state principle, which is guaranteed by the Constitution, the state should provide healthcare in accordance with the requirements of the age.
  • Right to Prefer Among Alternative Methods: There may be more than one method that can be administered for the treatment of the patient. In this case, the patient has the right to choose one of the alternative treatment methods.
  • Right to Protection: Apart from the treatment of existing diseases, the patient has the right to be protected against possible diseases. For example, if the person’s gene map has been prepared and it has been determined that the person is susceptible to a disease, the person has the right to request preventive actions be taken against that disease.
  • Right to not be Psychologically and Physically Damaged in Connection With the Treatment: In connection with the patient’s right to request treatment in a safe environment while prescribing the specified treatment; has the right not to be harmed psychologically and physically.
  • Rights of application, complaint and litigation: The patient has the right to apply, complaint and litigation in the event that the patient suffers a loss in connection with the treatment administered.

Obligations of Patient

  • Cooperation Obligation: The patient should share the history of past diseases with the physician in connection with treatment. Information that the patient must share with the physician includes information such as his / her illnesses, allergic reactions, diseases that are genetically present in his family and the drugs he/she uses. It is important for the patient to complete this information correctly and completely with the physician in order to provide healthcare services correctly. In case the patient gives any of this information to the physician incompletely and incorrectly, if any problems and harm occur in the treatment in connection with this, the physician cannot be held responsible according to the circumstances.
  • Obligation to Follow the Physician’s Recommendations: The patient is obliged to follow the recommendations given to him/her by the physician regarding the treatment. The patient should use his/her medication as prescribed by the physician during the treatment process and avoid contradictory behaviour. The patient’s right to stop and refuse treatment is reserved. If the patient, who does not follow the advice of the physician, suffers a loss for this reason, the responsibility of the physician will not be possible within the circumstances. In the relationship between the patient and the physician, a trust relationship should be established and the patient should follow the recommendations of the physician.
  • Fee Payment Obligation of Patient:  The patient is obliged to pay a certain price for the health service he / she receives. Although some expenses in terms of healthcare provided in public hospitals are covered by the patient’s social insurance, the patient has an obligation to pay especially in the private hospitals.

Violation of Patient Rights

Patient rights may have been violated while the patient was being given healthcare service, and this violation may have caused harm. Legal, administrative and criminal responsibility of the physician or healthcare personnel may come to the agenda after violation of the patient rights. If there is a violation of the patient’s rights, disciplinary responsibility may arise even if there is no legal and criminal responsibility. In order for the responsibility to arise in terms of compensation, the elements of harm, defect, illegality and illegality must coexist. Also, in terms of unlawfulness, unlawfulness may be caused by violation of rights or medical error.

Patient rights violation; It may be in the form of harm to the psychological and physical health of the person due to incorrect medical intervention by the physician or healthcare personnel. Or it may be in the form of illegally taking or sharing the patient’s data. For example; In case the personal data specified are recorded illegally by the physician or medical personnel, the crime of “Saving Personal Data” in article 135 of the Turkish Penal Code shall be discussed.

Also, due to the medical intervention of the physician, his / her responsibility may arise in accordance with the provisions of reckless injury according to Article 89 of the Turkish Penal Code by taking into account the characteristics of the concrete event.

Physicians or healthcare personnel cannot guarantee 100% positive results regarding treatment, but they must show maximum care and attention when providing healthcare service. For example, if the patient does not share his / her past history with the physician completely and this issue cannot be seen in the tests performed by the physician; If the patient suffers from a treatment-related injury, the patient’s fault will also be taken into account in the responsibility of the physician. In terms of Turkish Penal Code regulations, the fault / defect of the victim in negligent crimes is one of the issues taken into consideration in determining the responsibility.

To evaluate the patient rights and the process in terms of the Covid-19 pandemic;  It is important to maintain the trust relationship between the patient and the physician and not to share the patient’s name, image, etc. personal data with third parties. Within the Covid-19 pandemic, the patient must comply with the measures taken and the treatment principles administered to him/her; the physician should show the utmost attention and care regarding patient rights.


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Yalçın & Toygar Law Office

Kabatas-Setustu, Inebolu Sok. No:25 Ada Apt. D.11 34427 Istanbul

+90 212 293 09 09

Email : info@yttlaw.com

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