연명의료 보류·중단에 대한 환자 가족의 결정

Abstract

In this paper, the legal system is discussed in which a patient's family decides to withhold or discontinue life-sustaining treatment on behalf of the patient. After many decades of discussion in Korea, the Korean Act on Hospice and Palliative Care and Decisions on Life-sustaining Treatment for Patients at the End of Life was enacted in order that patients might decide whether to receive life-sustaining treatment or withhold or discontinue it. However, the Act has many errors or flaws related to the Korean Civil Code. This Act permits the decision by the family decision to withhold or discontinue life-sustaining treatment for the patient that lead to the earlier arrival of his or her death. This permission does not suit the purpose of introducing a system that allows the life-sustaining treatment to be withheld or discontinued by the patient’s intent. Examples of issues that reveal these points are as follows. First of all, the error can be pointed out that the decision to withhold or discontinue life-sustaining treatment was recognized as an expression of intention or legal act, not a quasi-legal act. Accordingly, minors are improperly specialized in the decision to withhold or discontinue life-sustaining treatment. In addition, many problems are identified in relation to the legal representative who has the parental authority to decide on withholding or discontinuing life-sustaining treatment for minors. The above mentioned Act has flaws in legislation in the case of sole parental authority, the situation of conflict of interests, the case of acting parental authority on behalf of underage children over their children, the case of deprivation of parental authority, and the case of a parent with parental authority alone without the status of a legal representative. There is also a problem in the composition of provision related with each proxy decision for minor patients and general patients. The ambiguity of the reasons for restricting the right to decide makes it difficult to judge who the members of a group of decision makers. The fact that various requirements for exercising the right to decide must be supplemented by interpretation causes difficulty in implementing the decision to withhold or discontinue life-sustaining treatment in the medical field. Furthermore, the flaw in legislation that makes it impossible to withhold or discontinue life-sustaining treatment for patients without any family to decide shows the need to accept the theory of an abstract hypothetical intention to replace the present family decision system. Finally, the fundamental point to be mentioned is that we should remember that the design of the present system for the decision to withhold or discontinue life-sustaining treatment is to ensure that the patient's own conviction to choose the path of ‘natural death’ be properly respected.