개정민법에 있어서 성년후견과 의료행위 동의권

Abstract

In Korea, current revised version of Civil Law may be viewed as desirable legislation to a certain degree in the aspect of welfare for senior population, because Korea now faces more rapid pace of entry to aged society than other advanced countries. The current revised Civil Law of Korea confines adult guardian's right of consent on medical treatment to any medical treatment in violation of ward's body, and also permits the right to the extent that ward cannot give any consent to such medical treatment. However, medical treatment are available in considerably wide and various forms including regular health examinations, influenza vaccination, cold remedy administration, various operations and evisceration. If a ward cannot give consent to any other medical treatment except all cases of physical violation in the above list of treatment, there is a question about who can exert the right of consent on the medical treatment. Moreover, it is medical contract that is required to be signed by relevant parties before any medical treatment for a ward who lost any capacity to give consent to the treatment. Here, there is also a question about who shall sign on the medical contract. This way, there are a lot of legal issues in terms of any medical treatment for ward. In regard to the conclusion of medical contract, adult guardianship is introduced to wards who show ongoing deficiency of capacity to deal with any affair under the influence of mental restrictions due to illness, old age, disability and other causes. Thus,most of wards virtually lack in any mental capacity to discriminate right from wrong,so it is unreasonable to expect that they will be able to sign on medical contracts on their own normally. In this case, it is required that adult guardian should sign on any medical contract for his or her ward, and it is reasonable that any legal ground of adult guardian's signing on medical contract for ward should be found in prudent person rule or guardian's duty of care under adult guardianship contract in the aspect of physical custody like maintenance of ward's health. Ward's reliance on medical care involves medical intrusion, and any justification of this intrusion requires informed consent from patients on medical treatment for them. None of medical treatment can be justified without any consent from patients, so if a ward who lost any capacity of consent fails to give consent to medical treatment, there may be a situation where his or her physicians neglect him or her for the cause of no consent on medical treatment. On the contrary, there may be any case of violation against human rights of patients, if medical treatment is just recognized even without their consent on medical treatment. Thus, in view of better welfare for wards, it is important to permit any competent one to exert the right of consent on medical treatment on behalf of the wards. Guardianship system is recognized in order that any adult guardian can manage ward's property and take care of him or her. Hence, it is concluded that when there is an adult guardian for a ward who lost any capacity of consent, adult guardian's duty of physical care involves certain rights and the adult guardian can have the right to give medical care for wards, so that adult guardian can be given the right of consent on general medical treatment on behalf of ward.