사전지시에 의한 연명치료의 중단에 관한 연구

Abstract

In 2009, the Korea Supreme Court held that discontinuance of life-extending treatment can be allowed, upon reaching the stage of irrecoverable death, on the ground of the patient’s right to self decision to die based on dignity, value and the right to pursuit of happiness as a human being. The Court noted following requisites of the withholding or withdrawal of life-prolonging treatment by advanced directive for health care. First, the patient should be in the terminal condition, that will result in imminent death or has an irreversible injury or illness that results in a persistent vegetative state or permanent unconsciousness. Second, there should be patient’s advanced directive for withholding or withdrawal of life-prolonging treatment on his or her terminal condition. Third, provided medical information directly from medical provider or physician, the competent patient should execute the advance directive soberly as to the specific medical treatment based on the medical information and his own values. Fourth, The advance directive should be executed to the patient’s medical provider or patient’s attending physician and it’s existence should be clearly proved by written instructions or medical records. And last, unless the patient files a lawsuit directly in court, it is desirable that a committee composed of expert doctors, etc. decides whether the patient has reached the irrecoverable death stage. This paper notes that the third requisite of the Court for withholding or withdrawal of life-prolonging treatment may be the obstacle to be executed a valid advance directive by patient. Since, generally, prior to the patient’s terminal and irreversible condition, sufficient medical information of the patient’s irreversible injury or illness, is not provided to patient/declarant executing advance directive. This paper argues that the requisite may be fitted to the advance directive for medical treatment irrelevant to patient’s terminal condition. This paper also examines, the amended Korean Civil Code Article 947-2(effective on July.1.2013) that provides the adult guardian’s power of decision regarding personal affairs of the incompetent adult, the amended Code of Article 959-14 that provides the durable power of attorney by contract between principal and agent. The power of attorney created by principal will take effective when the principal loses capacity to decide his or her personal affairs. According to the Art. 947-2 or 959-14, this paper admits the possibility, a principal giving advance directive for health care to withhold or withdraw life-prolonging treatment. But, there is no provision immunizing criminal, civil, or professional liability of physicians or the agents who participated in advance directive regarding life-sustaining treatment. So, this paper insists to establish an Act that permits individuals to execute advance directive for health care.