Turkish law has introduced a special protection and procedural regime for the criminal and legal investigations that healthcare professionals (physicians, dentists, pharmacists, etc.) may face because of their professional activities. The basis of this regime is Additional Article 18 of the Basic Law on Health Services No. 3359 and the "Regulation on the Procedures and Principles for the Investigation of Healthcare Professionals Due to Medical Procedures and Practices and the Recourse of Compensation Paid by the Administration", issued on the basis of that article.
The purpose of these rules is to protect healthcare workers against unjust and exhausting investigations over adverse outcomes that may arise from the very nature of medicine even where they are not at fault in their professional practice, to ensure that assessments are made according to scientific and legal criteria, and thereby to prevent unease in the practice of the medical profession.
I. LEGAL BASIS: ADDITIONAL ARTICLE 18 OF LAW NO. 3359
“Except for those subject to the investigation procedure in Article 53 of the Higher Education Law, the provisions of Law No. 4483 of 2/12/1999 on the Prosecution of Civil Servants and Other Public Officials shall apply to investigations conducted against physicians, dentists and other healthcare professionals working in public or private healthcare institutions and organisations and foundation universities on account of medical procedures and practices relating to examination, diagnosis and treatment carried out within the scope of practising their healthcare profession. Permission to investigate shall be granted by the Professional Liability Board established within the Ministry of Health. In respect of physicians, dentists and other healthcare professionals working in private healthcare institutions and organisations and foundation universities, the Professional Liability Board may also assign the head or deputy heads serving in provincial health directorates to carry out a preliminary examination. The time limits in Article 7 of Law No. 4483 concerning the granting of permission to investigate shall be doubled. Objections against the decisions of the Professional Liability Board may be filed with the Ankara Regional Administrative Court.”
The essence of Additional Article 18 is that it establishes a system under which opening an investigation against healthcare professionals "on account of medical procedures and practices relating to examination, diagnosis and treatment carried out within the scope of practising their healthcare profession" is subject to "permission". Under this article:
✦ Scope: Under the article, the healthcare professionals for whom permission to investigate must be obtained are as follows.
✦ Physicians and Dentists Working in the Public Sector
✦ Physicians and Dentists Working in Private Healthcare Institutions and Organisations
✦ Physicians and Dentists Working at Foundation Universities
✦ Other Healthcare Professionals (Nurses, Midwives, Pharmacists, Dietitians, etc.)
For physicians, dentists and other healthcare professionals at university hospitals subject to Higher Education Law No. 2547, Article 53/c and the following articles of Law No. 2547 apply.
✦ Permission Requirement : Before deciding not to prosecute a healthcare professional in connection with their professional activity, the public prosecutor's office must apply to the provincial health directorate to which the healthcare professional is attached and request permission to investigate.
II. THE CENTRAL MECHANISM: THE PROFESSIONAL LIABILITY BOARD
Prosecutors cannot directly open an investigation into complaints from patients. The relevant public prosecutor's office requests permission regarding the subject of the investigation. The request is forwarded to the Professional Liability Board (Mesleki Sorumluluk Kurulu) established within the Ministry of Health. This Board is the most critical stage of the process.
✦ Composition of the Board: The Board consists of seven members designated by the Minister of Health: a Deputy Minister; the directors general, or their deputies, of Health Services, Public Hospitals, Legal Services and Management Services; and two physicians holding the title of professor or associate professor, one from an internal medicine branch and the other from a surgical branch.
✦ Duties of the Board: The Board has two main duties: deciding whether to grant permission to investigate, and carrying out its duties concerning recourse.
Article 9 of the Regulation defines Permission to Investigate:
“Permission to investigate is the Board's authorisation for the Chief Public Prosecutor's Office to conduct an investigation against a healthcare professional under the provisions of Criminal Procedure Code No. 5271 of 4/12/2004.”
Article 12 of the Regulation defines the Recourse Claim:
“A recourse claim is the request that the relevant healthcare professional pay the amount determined by the Board, taking into account their degree of fault in the incident giving rise to compensation, out of the sum paid by the administration under a court decision in a lawsuit filed against the administration on account of medical procedures and practices relating to examination, diagnosis and treatment carried out by healthcare professionals working in public institutions and (Amended phrase: RG-5/6/2025-32921) organisations within the scope of practising their healthcare profession; this applies only where it has been established by a final criminal court judgment that the professional abused their duty by intentionally acting contrary to the requirements of their duty.”
III. PERMISSION TO INVESTIGATE
Permission to investigate is the Professional Liability Board's authorisation for the Chief Public Prosecutor's Office to conduct an investigation against a healthcare professional under the provisions of Criminal Procedure Code No. 5271 of 4/12/2004. One of the Board's two most important duties is to decide whether or not to grant permission to investigate.
✦ Preliminary Examination Stage : Before assessing permission to investigate, the Board must carry out, or have carried out, a Preliminary Examination under Articles 7 and 8 of the Regulation.
If, during the preliminary examination, it is established that the subject of the complaint relates exclusively to medical procedures and practices of healthcare professionals within the scope of the Law, the examination is completed and a report is drawn up. If the report prepared following the preliminary examination is considered sufficient to reach a decision, the Board issues a reasoned decision on permission to investigate.
If the Board identifies matters that need to be clarified, it may carry out a new examination itself or have one carried out by the official who conducted the preliminary examination or by other officials.
✦ Decision on Permission to Investigate : The Board issues its decision on permission to investigate within sixty days at the latest from the date the offence became known, including the preliminary examination. In compelling circumstances, this period may be extended once by no more than thirty days.
The Board issues a reasoned decision on permission to investigate. In practice, the Board's decisions set out the complainant's statement, the healthcare professional's defence, the expert opinion from the preliminary examination, and the decision on whether permission to investigate is granted.
Objection to the Decision : The Board's decision granting or refusing permission to investigate is sent:
✦ to the relevant Chief Public Prosecutor's Office,
✦ to the healthcare professional,
✦ to the complainant,
through the relevant Provincial Health Directorate.
If permission to investigate is granted, the healthcare professional concerned may object to the Ankara Regional Administrative Court within 10 days of notification of the decision.
Against a decision refusing permission to investigate, the complainant and the relevant Chief Public Prosecutor's Office may object to the Ankara Regional Administrative Court within 10 days of notification of the decision.
Against a decision not to process the complaint, the complainant may also object to the Ankara Regional Administrative Court within 10 days of notification of the decision.
IV. COURT OF CASSATION DECISIONS ON PERMISSION TO INVESTIGATE
✦ Court of Cassation, 12th Criminal Chamber, dated 01.11.2022, E. 2020/5100, K. 2022/7814
The establishment of a judgment against the defendants, who worked at a private healthcare institution, in the manner written, by continuing the trial without taking into account that permission to investigate should have been requested from the Professional Liability Board and their legal situation assessed accordingly,
is contrary to the Law; since the appeal objections of the attorney for the intervening parties were found to be well-founded on this ground, it was unanimously decided on 01/11/2022 that the judgment be REVERSED, contrary to the request, under Article 321 of Code of Criminal Procedure (CMUK) No. 1412, which is still applied pursuant to Article 8 of Law No. 5320, without examining its other aspects.”
✦ Court of Cassation, 12th Criminal Chamber, dated 03.07.2024, E. 2023/6125, K. 2024/3608
“Whereas all the complainant's medical documents should have been added to the file and the investigation file sent to the Professional Liability Board established within the Ministry of Health, with the investigation proceedings conducted according to its outcome, it was not found correct that, upon the objection against the decision of non-prosecution dated 06/01/2023 issued without obtaining permission to investigate in respect of the healthcare professional suspects ……….., the objection was rejected in the manner written instead of a decision being made to expand the investigation.”
✦ Court of Cassation, 12th Criminal Chamber, dated 23.01.2024, E. 2023/6751, K. 2024/328
“3. In the judgment under review, the establishment of a conviction in the manner written against the defendant, who at the date of the offence was working as an obstetrics and gynaecology specialist at İ. A. Hospital, which has the status of a private healthcare institution, without obtaining permission to investigate from the Professional Liability Board as required by the relevant regulation, is contrary to the Law, and the request for reversal in the interest of the law has been found well-founded.”
Conclusion
The "permission to investigate" mechanism introduced by Additional Article 18 of Law No. 3359 and the related regulation provides an important safeguard for healthcare professionals. This system aims to ensure that professional practices are first assessed according to scientific criteria by a board of experts, thereby preventing unjust interventions and interventions that cause professional anxiety. It is critically important for healthcare workers to be aware of this legal protection and to know that, in the event of any investigation, the process will run within this framework, in order to preserve confidence in professional practice.
