연명의료결정법의 문제점과 개정방향 -연명의료 보류‧중단의 결정에 관한 해석론과 입법론을 중심으로-

Abstract

The purpose of this paper is to attempt to interpret some provisions of ‘the Korean Act of Decision-Making in Life-Sustaining Medicine’(hereafter, ‘the Decision-Making Act’ or ‘the Act’) and to present a legislative approach if the problems found there are not solved just by interpretation. The provisions addressed in this paper are related with the decisions regarding the holding-off or discontinuation of life-sustaining medicine. First, the scope of concept of the life-sustaining medicine regulated by the Decision-Making Act was discussed. It is pointed out that the concept of life-sustaining medicine as defined by the Decision-Making Act and its Enforcement Decree is a closed one and is open to any arbitrary interpretation, therefore the direction of revision should be toward allowance of any open interpretation of the concept of life-sustaining medicine. Second, the range of patients ruled by the Decision-Making Act was addressed. The Decision-Making Act governs cases related with both types of patients including 'the patient in the process of dying' and 'the terminal patient'. The holding-off or discontinuation of life-sustaining medicine is permitted only for the former type. Therefore it is serious to distinguish between the two types. Then the ambiguity of boundary between scope of both concepts arises the critical problem. The establishment of the clear boundary is necessary. However, this is not easy. Rather, it was argued that it would be appropriate to solve this problem by an open approach to the application of the Act, rather than limiting it only to the specific type of patients. Third, there were addressed the patient's intention and the substitutive decision by agents including families of patient as one of the requirements for the holding-off or discontinuation of life-sustaining medicine allowed by the Decision-Making Act. In the Decision-Making Act, the intention of patient is assumed by the three methods: the Medical Plan about the life-sustaining medicine, the Letter of Intent about the life-sustaining medicine (a kind of so-called ‘living will’), and the family statement about the patient’s intent thought about the life-sustaining medicine. Detailed rules for each method were analyzed to identify the interpretation problems, and then the necessity and direction of the revision were addressed. In particular, it was pointed out that there is the fundamental mistakes in provisions related to minors. And the Decision-Making Act gave the statutory representative or a range of families of the patient the power to decide the holding-off or discontinuation of life-sustaining medicine on behalf of the patient. If the patient was a minor, it gave the power only to his or her parental authority. There was pointed out the difficulty in solving the various problems related to the parental rights by means of interpretation, which makes the legislative approach necessary. On the other hand, in regard to the substitutive decision by the agreement of all members of the family, the problems that occur inevitably when interpreting that the ability-limited adult family is included in the scope of the family to participate in the agreement were analyzed, and then the necessity and direction of the legislative solution were mentioned. Finally, the Act’s legislative deficiencies or problems in implementing the decision to hold off or discontinue the life-sustaining medicine were addressed.