Superior interests as a limitation on the right to refuse a medical treatment
MetadataShow full item record
CitationYucel, O. (2021). Tıbbi Müdahalelerde Onam Hakkının Sınırı Olarak Üstün Yarar. İstanbul Hukuk Mecmuası, 79(2), 441-483. https://doi.org/10.26650/mecmua.2021.79.2.0003
Medical interventions constitute an intervention in personal rights in terms of the nature of medical interventions. Therefore, consent of the concerned person should be obtained as a rule to refrain from violating the right to personality. However, the lawfulness of consent requires specific conditions owing to the use of qualified information obtained by biology and medicine in medical intervention. One of such conditions is that consent should be given for a legitimate purpose. Conversely, qualified information obtained by biology and medicine offers decision-makers with a dangerous tool for structuring social order. The reasons for lawfulness replacing consent are embodied in accordance with certain criteria, such as legality and proportionality, in line with constitutional principles. However, in terms of medical interventions, the concept of superior interests may supersede the reasons for compliance with the law. The intervention to be carried out without consent can be either in the interest of a concerned person, a third person, or the public in general. However, which disease or form of intervention will benefit from whom is not only a scientific but also a political issue. Thus, the study critically evaluates the limitations of the legitimacy of medical interventions attempted by engaging in conflict with the person concerned or with a legal representative.