@article{article_1513704, title={CONSENT ISSUE IN MEDICAL INTERVENTIONS APPLIED TO PATIENTS WHO DO NOT HAVE THE CAPACITY TO ACT}, journal={Law and Justice Review}, pages={1–18}, year={2024}, author={Karacan Çetin, Hatice}, keywords={Medical Interventions, Consent, Capacity of Judgement, Personality Right, Underage Patients, Under Guardianship Patients, Legal Representative}, abstract={Life, physical integrity and health are values protected within the scope of personality right. For this reason, medical interventions applied on these values constitute a tort and/or crime unless there is a reason preventing illegality. In medical interventions, this reason often appears as the patient’s consent. However, it is not possible to give consent for patients who permanently or temporarily lack the capacity of judgement. In this case, can medical intervention be applied with the consent of the patient’s relative or legal representative? If so, what should the representative take into account when giving consent or what should be done if the legal representative refuses to give consent even though medical intervention is necessary and urgent? On the other hand, since consenting to medical intervention is a strictly personal right, it is argued that this right cannot be used through a representative. Despite this, in Turkish Law, there are provisions that still require the consent of the legal representative in medical interventions applied to underage or under guardianship patients, even though they have the capacity of judgement. These provisions cause problems in practice. And in German law, a paragraph (§1358) added to the German Civil Code allowed spouses to represent each other in medical interventions, under certain conditions, for a certain period of time. The paragraph, which was accepted after long discussions and entered into force at the beginning of 2023, seems to have brought about greater debates. On the other hand, in Turkish law adults who are under guardianship lose their capacity to act, even if they have the capacity of judgement. As a result, the guardian’s consent must be sought for patients in this situation according to the legislation. However, this guardianship system for adults has long been abandoned in German and Swiss law. In our study, current approaches to the consent issue in medical interventions applied to patients who do not have the capacity to act are discussed within the framework of Turkish, German, Swiss laws and international regulations.}, number={28}, publisher={Türkiye Adalet Akademisi}