Abstract:

A patient’s will is a preliminary disposition prescribed for a prospective situation. Through a patient’s will, an individual may specify how s/he would like to be treated in the event that s/he loses his/her discernment in the future; in other words, s/he may establish the medical treatments s/he is willing to receive or vice versa. Pursuant to the amendment made in 2008, patient’s will was decreed at federal level by the Swiss Civil Code in order to reinforce the individual’s right to determine his or her own future. In principle, patient’s will is binding and valid unless it is revoked. The imperative nature of patient’s will in principal and its validity for an indefinite term would limit personal freedom in case the person’s opinion changes subsequently but s/he fails to express it. Besides, elucidating the person who makes the will in advance and the necessity that the patient’s will should be related with a certain situation of sickness and treatments are not preconditions for its legal validity. This might prevent the individual to effectively exercise the right to determine his or her own future and limit his or her personal freedom unduly. Several solutions have been proposed regarding these matters in the doctrine. Accordingly, especially the criterion of the definiteness of medical decisions addressed in the patient’s will should be included in the law as a precondition of a legally binding patient’s will, and updating of the will at regular intervals should be made obligatory. There is not any direct regulation in Turkish law concerning patient’s will. Yet, the Biomedicine Convention, which includes a provision on this matter, was ratified by Turkey. An amendment was also made in the Regulation on Patients’ Rights in 2014 accordingly. These regulations prescribe only that when a patient is in a state that he cannot express his/her will during medical intervention, the wishes s/he stated previously on the medical procedure would basically be taken into consideration. Considering the risk of restricting personal freedom unduly when patient’s will is binding, the point of view adopted in Turkish law seems well-directed. However, the material conditions and the requirements as to form of patient’s will as individual’s disposition prescribed for future regarding his/her life and health status should be laid down directly by a law. In our opinion, while carrying out the discussions and assessments necessary for such regulation, it would be useful to take the remarks and comments made in the Swiss Civil Code into consideration as well

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