Informed Consent in Turkish Law: The Physician's Duty to Inform and the Burden of Proof

Every medical intervention is, in principle, an interference with the patient's bodily integrity and must be based on the patient's valid consent in order to be lawful. For that consent to be valid, the patient must have been adequately informed before the intervention. This concept, known as "informed consent" (aydınlatılmış onam), lies at the heart of many healthcare law disputes.

Legal basis

Article 5 of the Convention on Human Rights and Biomedicine (Oviedo Convention), to which Türkiye is a party, provides that an intervention in the health field may only be carried out after the person concerned has given free and informed consent; that the person must beforehand be given appropriate information as to the purpose and nature of the intervention as well as its consequences and risks; and that the person may freely withdraw consent at any time. The Regulation on Patient Rights also contains provisions on informing patients about their health and treatment and on obtaining their consent.

What should the disclosure cover?

The scope of disclosure is interpreted broadly in Court of Cassation (Yargıtay) decisions. Patients are generally expected to be informed of:

• the diagnosis and current state of health,
• the nature, purpose and likelihood of success of the proposed treatment or intervention,
• the risks and possible complications of the intervention,
• any alternative treatment options and their risks,
• the consequences of refusing treatment,
• the use of medication and possible side effects.

Information should be given in language the patient can understand and sufficiently in advance to allow a decision. The Court of Cassation stresses that consent to surgery alone is not enough; complications must also be explained.

Complications and disclosure

Characterising harm as a medical "complication" does not in every case relieve the physician of liability. In its decision E. 2016/23372, K. 2019/12469, the 13th Civil Chamber of the Court of Cassation stated that the fact that the harm was a complication does not remove the duty to inform, and that informing the patient about complications is part of that duty. The 4th Civil Chamber of the Trabzon Regional Court of Appeal likewise stated in its decision E. 2021/1783, K. 2022/423 that, where the harm results from a complication, the physician's liability arises only if the patient's informed consent was not obtained.

Who bears the burden of proof?

According to settled case law, the burden of proving that the patient was properly informed and that consent was obtained lies with the physician or healthcare institution. In its decision E. 2024/1848, K. 2025/836, the 3rd Civil Chamber of the Court of Cassation reversed the lower court's judgment, holding that the defendant was obliged to prove that informed consent had been obtained and, having failed to do so with the available evidence, should be held liable for the harm concerned.

Is a consent form enough?

A signed consent form is important evidence, but it is not always sufficient on its own. Issues frequently debated in practice include:

• whether the form is specific to the intervention performed or a generic, pre-printed form used for all procedures,
• whether the complication that occurred is expressly mentioned in the form,
• whether the form was signed sufficiently in advance of the intervention,
• whether the intervention performed is the same as the one described in the form,
• whether the form was signed by the patient or their legal representative.

Exceptions

In emergencies where the patient's life or a vital organ is at risk, and where the patient is unconscious, the necessary intervention may be performed without consent. For minors and persons under guardianship, consent is generally obtained from their legal representatives; however, a minor capable of forming a judgment should be involved in the process as far as possible.

Recommendations for healthcare institutions

• use separate, up-to-date consent forms for each type of intervention,
• clearly state procedure-specific risks and common or serious complications in the forms,
• record that oral information was also given and the patient's questions were answered,
• obtain consent a reasonable time before the intervention and record the date and time.

Conclusion

Informed consent is the foundation both of the patient's right to decide about their own body and of the physician's legal protection. In a dispute, how the consent process was conducted often plays a decisive role in determining liability.

This article is for general information purposes only and does not constitute legal advice.