Criminal responsibilities of nurses in Turkish criminal law and determining the awareness levels of senior nursing students regarding this responsibility

There is an increase in criminal and compensation cases filed against medical malpractice in Turkey [2, 3]. The number of malpractice cases submitted to the judiciary, especially due to the faulty professional practices of nurses, is undeniably high, and nurses rank second in terms of lawsuits filed against healthcare workers [4‐6]. The subjects of lawsuits filed against nurses alleging medical malpractice are generally the crime of negligent injury and standard nursing care errors (medical error). In the studies conducted, the most common types of medical errors made by nurses were stated to be inadequate follow-up, incorrect treatment, negligence, imprudence, and lack of attention and care [7]. In one study conducted on this subject, it was stated that 21% of patient complaints were about nurses, although they did not all result in a lawsuit [8]. Likewise, in American and European countries, death and injury cases due to medical errors rank third among death and injury cases due to other causes [9]. Concerning medical malpractice lawsuits in Turkey, it was reported at a meeting of the Turkish Grand National Assembly Health, Family, Labor and Social Affairs Commission on March 22, 2022 that 5933 judicial lawsuits were filed between 2012 and 2022, and 517 of these cases were filed against nurses [10].

When situations that might lead to the criminal liability of healthcare professionals in some other countries were examined, the following results were reached. In Sweden, medical malpractice includes documentation and medication errors [11, 12]. In Finland, malpractice approaches are different from other countries: in the event that healthcare personnel realize their mistakes, no charges are brought against them and no lawsuits are filed. There is an insurance system based on no-fault liability for malpractice by health personnel [12]. In the United States of America (USA), deaths due to medical errors are reported to be the fifth leading cause of death [13, 14].

According to a report published in the US, 1.14 million (3.08%) patient safety violations were detected in 37 million hospitalizations between 2000 and 2002 in patients in the Medicare population. Rescue errors, bedsores and post-operative sepsis accounted for 60% of these events [15]. The American Nurses Association (ANA) states that errors caused by nurses are generally related to nurse incompetence, and errors will increase if nurses are in work environments where they are stressed, tired, and unable to think appropriately [14, 16]. Japan’s legal arrangements for dealing with deaths and injuries that occur in the provision of health services are mostly based on public law institutions and rules [14].

Nurses are involved in all processes aimed at protecting and improving the health of the individual, family, and society, and healing in case of illness [1, 17]. Nurses play an important role at every moment of the treatment, from simple injections in the emergency room to severe surgical interventions [18]. According to the relevant legislation, nurses can both make their own decisions to provide medical intervention and play an active role in decisions to be taken regarding the care of the individual.

The legal basis of nurses’ duties, authority, and criminal liability is the Constitution of the Republic of Turkey (OG:09.11.1982/17863), the Turkish Penal Code (OG: 12.https://​doi.​org/​10.​2004/​25611), Nursing Law (OG: 02.03.1954/8647), Nursing Regulation (OG: 08.03.2010/27515), Patient Rights Regulation (PRR-OG:01.08.1998/23420), Inpatient Treatment Institutions Operation Regulation (OG: 13.01.1983/7927) and the Law on the Proper Performance of Medicine and Medical Arts (OG: 14.04.1928/863).

Nurses have certain duties, authorities, and responsibilities when performing their profession [19]. The duties and authorities of nurses are of three types: independent, semi-dependent, and dependent [1, 17]. In the Nursing Law, there are initiatives that nurses can perform independently, that is, they are authorized. They can act independently in such interventions. Nurses do not plan treatment, but they have the authority to apply the treatment ordered by the physician, which is within their dependent authority. Nurses have duties specified in laws and regulations, as well as various duties determined by the health centers where they work. In practice, the duty of the nurse is determined according to the relevant law and regulation and the nature of the concrete situation. However, sometimes there may be uncertainty in the legislation about the limits of nurses’ duties and authority [20]. Therefore, if there is no clear provision in the legislation regarding which medical intervention falls within the nurse’s field of duty, this is determined according to the core education he/she receives [21].

Incomplete or incorrect medical intervention by nurses, failure to perform their duties on time, failure to fulfill their duties towards the individual, or committing criminal acts while performing their duties may be infringements of their legal responsibilities [20, 22]. Nurses have three different responsibilities relating to unlawful actions while on duty. These concern criminal liability, administrative liability, and civil liability [18, 20, 21]. Administrative liability is there sponsibility imposed by the administration due to the actions it performs or the procedures it establishes. In other words, the responsibility of the administration is to compensate for the damage caused to people by the administration’s proceedings and actions. Legal (compensation)liability is the obligation to make a person who harms another person through a faulty and unlawful act pay for the damage.

Criminal liability of nurses is a type of liability that arises as a result of medical intervention or other positive or negative behavior related to their field of duty, in accordance with the type in the criminal law and against the law [20]. In other words, the criminal liability of nurses refers to the fact that if an unlawful act as defined by criminal law occurs, they will be tried for the crime corresponding to the action and sentenced to imprisonment or a fine [23, 24]. For example, if nurses cause death or injury to a patient through an intentional or negligent act (such as negligence, or imprudence), they will be criminally liable. It should also be emphasized that the liability of nurses arising from their unlawful actions is subject to the general liability principles of Turkish Law. Therefore, there are no specific liability rules or laws for the nursing profession. Thus, the same provisions will apply to organ loss resulting from a nurse’s faulty medical intervention as to organ loss resulting from a traffic accident (TPC Article 89).

Medical intervention is defined as a “ kind of activity that includes diagnosis, treatment, simple or severe surgical interventions in accordance with the requirements of medical science, in order to restore physically or psychologically impaired health, performed by a person authorized to practice medicine, to alleviate suffering, and if this is not possible, to protect healthy people from disease by carrying out population planning or medical research” [18, 25, 26]. The concept of medical intervention includes surgical interventions, anesthesia, radiotherapy, shock therapy, ultrasound, drug treatments, blood tests, organ function tests, vaccines, laparoscopy, magnetic resonance, computed tomography, genetic tests (gene analyses), birth control methods, and vaccine applications, and diet which may be recommended. However, not everything within the scope of health care is medical intervention. For example, the health service provided by the person in charge who admits the patient to the hospital and carries out the official paperwork is not a medical intervention. Again, the procedure performed by the personnel who transfer the patient from one place to another in the hospital on a stretcher is not a medical intervention. Therefore, every medical intervention is health care, but not every health service is a medical intervention [27].

In order for nurses to provide medical intervention, certain legal conditions must be met. The legality conditions of medical intervention also apply to nurses. The conditions for the legality of medical intervention are that the person performing the medical intervention must be a nurse, there must be an indication, there must be informed consent, and the nurse must perform an attentive medical intervention in accordance with the requirements of medical science. Medical intervention performed by complying with all these issues is a legal medical intervention. For example, if the person performing the intervention is not a nurse (such as a nursing student), the medical intervention is performed without a medical indication (such as giving unnecessary injections in order to get money), or the medical intervention is performed without informing the patient, that is, without obtaining his/her consent, it is considered unlawful and causes the nurse to be criminally liable [21, 25, 28].

First of all, medical intervention can only be legal if the person performing the intervention is authorized to do so. Therefore, medical intervention should be performed by authorized persons, that is, healthcare professionals. The term health worker is understood as a physician, dentist, pharmacist, midwife, nurse, or other person providing health services (TPC article 280/2). So, even though the ambulance driver serves in the healthcare field, he cannot be considered a healthcare worker. Interventions made by people who are not authorized to perform medical intervention under the relevant laws are against the law because they are exceeding their authority. In such a case, the person who made the unauthorized intervention will be held responsible for the crime he committed negligently, recklessly or intentionally according to the provisions of the criminal law. For example, Article 99 of the Turkish Penal Code regulates that a pregnant woman who is less than ten weeks pregnant will be punished if her child is aborted by an unauthorized person, even if she consents. Therefore, if a nurse who is not authorized to perform an abortion performs an abortion on such a pregnant woman, the nurse will be the perpetrator of this crime. Likewise, a nursing student will be liable for the crime of intentional injury if an injury occurs as a result of giving an injection to a neighbor. The second condition for medical intervention to be lawful is that it must be aimed at at least one of the legally prescribed purposes. According to Article 13/3 of the Medical Deontology Regulation, medical interventions can be performed for the purposes of diagnosis, treatment, prevention, and population planning. In addition, today, aesthetic interventions are also considered medical interventions. The third condition is that medical intervention must be performed with care and attention within the current and accepted principles and rules required by the nursing profession. The last condition is that the patient has given consent for medical intervention. The consent of the person concerned, which is a condition for legality in criminal law (TPC Article 26/2), is also a valid condition for legality in medical law. The validity of this consent is only possible by informing the patient. In this context, informed consent, which is the form of patient consent in medical law, means “A nurse, who is an officially qualified person, informs the patient of the type, form, urgency, content, side effects and risks of the medical intervention planned to be performed. This can be defined as “equipping the patient with information that will enable him or her to make a free decision about medical intervention by explaining negative consequences that may occur if such an intervention is not performed.” [21, 29, 30]. Therefore, the nurse’s medical intervention becomes lawful only if the patient or their legal representative consents to the medical intervention. This clarification (informed consent) should be made by personally discussing with the patient, including the reason for the intervention to be applied by the nurse, its scope, risks, and the consequences of refusing the intervention. Medical intervention performed without the patient’s consent is against the law and the patient has the right to refuse medical intervention. For example, if the patient does not accept serum for his or her treatment, the nurse cannot establish an intravenous line and administer serum to the patient without the patient’s consent, because the patient has the right to refuse treatment in accordance with Article 25 of the PRR This is also called passive euthanasia [31]. Nurses should respect the wishes of patients who temporarily or completely refuse treatment [29].

The patient may face some negative consequences as a result of the nurse’s reckless action. While negligent homicide is a crime in case of the death of a patient, if the patient is injured or loses a limb, the crime of negligent injury will be brought to the agenda. In this case, the nurse is punished like someone who unintentionally hits someone in a traffic accident and causes death, or who injures a colleague by pressing a wrong button while working in a factory. The point to be explained here is that since there is no separate legal regulation for nurses, they will be held responsible in line with general principles of criminal law.

Failure of nurses to perform their duties as required may lead to some types of crimes defined in the Turkish Penal Code, of which nurses may be the perpetrators. The types of crimes that are included in criminal law and cause criminal liability for nurses can be listed as follows: Intentional Homicide (TPC Article 81), Intentional murder committed through negligence (TPC Article 83), Aiding Suicide (TPC Article 84), Reckless homicide (TPC Art. 85), Intentional injury committed by negligent behavior (TCK Art. 88), Reckless Injury (TCK Article 89), Failure to Fulfill the Assistance and Notification Obligations (TPC Article 98), Abortion (TPC Article 99), Providing Data Illegally (violation of the obligation of confidentiality) (TPC Article 136), Forgery of Official Document (TPC Article 204), Abuse of Office (TPC Article 257), Failure of Healthcare Professionals to Report the Crime (TPC Article 280), Child’s Changing family ties (TPC Article 231), Embezzlement, Extortion, Bribery (TPC Article 247, Article 250, Article 252), Disclosure of secrets related to duty (TPC Article 258), and Abandonment or non-performance of public duty (TPC Article 260). For example, if a nurse working in the emergency room encounters an indication that a crime has been committed (for example, a gunshot wound) while on duty, and does not report the situation to the competent authorities or delays in this regard, TCK Art. he or she will be responsible for the crime specified in Article 280. Again, if a nurse responds to the patient’s wish to die and the lethal drug is administered to the patient by the nurse, the crime of intentional homicide will be committed by carrying out active euthanasia, which is prohibited under Turkish Law (TPC Article 81, PPRR Article 13).

The criminal liability of nurses mostly arises from their faulty medical interventions. In field studies conducted in recent years, it has been observed that one in five nurses in each shift makes a medical error [18]. In Turkish Criminal Law, actions in which the patient is harmed due to the nurse’s careless or unprecautionary actions are described as negligent actions. In such a situation, the nurse foresees the outcome when performing medical intervention, does not want the outcome, but does not take the necessary precautions. According to the Turkish Penal Code, faulty medical practices are considered within the scope of “negligent crimes” (TPC Article 85, Article 89) [21]. In the Turkish Penal Code, negligence is divided into two: conscious and unconscious negligence. In Article 22/2 of the Law, unconscious (simple) negligence is defined as follows: “Negligence is the performance of a behavior without foreseeing the consequences specified in the legal definition of the crime, due to violation of the duty of care and attention .” Article 22/3 of the law defines conscious negligence as follows: “There is conscious negligence if the result occurs even though the person does not want the result predicted; in this case, the penalty for the reckless crime is increased from one third to one half.”. As can be understood from the articles of the law, the most important element that distinguishes conscious negligence from unconscious negligence is the element of foreseeability. In this respect, unconscious negligence is the normal form of negligence. It is a situation where the perpetrator does not foresee a foreseeable outcome [32, 33], acts contrary to the duty of care and attention expected from him, and fails to think about it at all, causing the outcome and the crime to occur [34]. In such cases, the perpetrator violated his duty of care and did not foresee the foreseeable outcome. On the other hand, there is conscious negligence if the perpetrator foresees that the result is in the legal definition and therefore a crime may occur, but does not want this result and tries to prevent the result from occurring, and yet the crime occurs [35]. In this sense, it would not be wrong to say that the perpetrator of conscious negligence is more dangerous than the perpetrator of simple negligence.