종교적 이유로 인한 수혈 거부시 자기결정권과 망인의 생명간의 비교형량 접근방법에 대한 비판적 검토 - 대판 2014.6.26, 2009도14407 판례 평석 -

Abstract

This is the case for Jehovah’s Witness patient’s refusal of blood transfusion. During the surgery, the doctor could not do the blood transfusion timely due to patient’s strong will and therefore the patient died. The doctor was prosecuted by a charge of professional negligence resulting in death. He was sentenced not guilty both in trial and appellate court due to lack of illegality since the doctor treated the patient by the way of patient’s choice. However, the Supreme Court criticized the reasoning of trial and appellate court. The Supreme Court finds that patient’s self-determination right is not necessarily superior to the protecting life duty of the doctor in which the patient self-determination act brings conflict with the protecting life duty of the doctor based on the nation’s duty of protection of life. The Supreme Court finds that the self-determination act is legal only when that act can be evaluated equal to life. If a self-determination act cannot be evaluated as equal to life, or can be evaluated below the life, the act should not have binding effect to the doctor. In this case, the Supreme Court might think that the main issue should be which value is more superior between “the self-determination right by a patient” and “protecting life duty by a doctor” when a Jehovah’s Witness patient reveals his intention of refusal of blood transfusion. When these two conflicting values are compared, the former is not always superior to the latter. The former is equal to the latter only when special conditions are met. Only in this special exceptional case, the doctor can be exempted from the duty of protecting life and he can choose any proper treatment by using his professional discretion. However, I think, the main issue here in this case is not comparing two conflicting values but judging whether a patient’s specific self-determination act steps over the limit of a fundamental right exercise. The Supreme Court should give clear and definite guidelines to avoid confusion but it didn’t. The court demands 3 safety measures to protect life. First, the doctor should warn the patient the risk of specific treatment and treat the patient with due care. The patient’s will of specific treatment is allowed only if the life threatening risk becomes not real. If the life threatening risk becomes real, the things are changed. The patient’s will is no more effective. Second, if the risk becomes real and the life threatening situations happens, then the doctor should reconfirm the patient’s will. If the patient become unconscious, the doctor ask the family’s intention and decide what the best choice is given the patient’s supposed intention, the family’s intention and other circumstances. In this stage, the doctor should evaluate which value is more superior between self-determination right and duty of protecting life. The doctor should respect the patient’s will only if the former is equal to the latter. Third, the court judge the final answer when the dispute appears between the patient and the doctor. Even though the doctor evaluate the self-determination right is equal to the duty of protecting life and treat the patient according to his judge, he can be prosecuted later if the court judged the situation differently. I think the Supreme Court’s 3 stage safety measures are making only chaos in reality. It’s not necessary to demand the doctor again to consider his duty of protection of life in 2nd stage. Since the protection of life is already considered in the first stage, the doctor need not reconsider his duty of protection of life in 2nd stage. If the patient’s specific will is regarded passing the limit of the fundamental right exercise, then the doctor doesn’t have to respect the patient’s illegal will and can do proper treatment what he think. The court should judge whether a patient’s specific refusal of treatment due to religious reasons pass the limit of fundamental right exercise. If the act is within the limit, then the doctor should respect the patient’s will and do exactly what he wants to do in his treatment. If the act is regarded passing the limit, then the doctor doesn’t have to respect the patient’s will.