디지털환경에서 의료결정권 보장을 위한 헌법적 대응

Abstract

With the recent advancements in artificial intelligence (AI) and information and communication technology (ICT), there have been notable changes in the healthcare system. In particular, the COVID-19 pandemic seems to have brought about a paradigm shift in the healthcare system. During this period, Korea experienced limited telehealth, and expectations for the introduction of telehealth grew. The medical industry is shifting its focus from disease treatment to prevention and management, diversifying into data industries, AI, and mobile healthcare through smart devices. Personalized medicine is expanding into specialized medical fields. Under the Korean Constitution, the right to life and health is a fundamental right based on the state's obligation to the right to health in Article 36(3), the right to human dignity and pursuit of happiness in Article 10, the right to bodily lierty and safety in Articles 12 and 13, and the right to a decent life in Article 34(1). However, the state's obligation to protect fundamental rights must be judged in accordance with the level of medical care at the time and the level of health environment that meets the life and physical security of the people according to the changes of the times. In this regard, the state's duty to protect fundamental rights should not be limited to reactively preventing risks from diseases, but should also extend to respecting the right of individuals to patient autonomy. In this regard, constitutionally, the state's legal policies related to the life, body, and health of citizens need to be reviewed with greater scrutiny under the current principle of non-disproportionate protection, and the state's duty of protection needs to be adjusted upward to meet the needs of a risk society. And, medical and health services in the digital environment are public goods that affect both individuals and the state, and at the same time, they are areas where utilitarianism is recognized to benefit the medical community, the medical equipment industry, and individuals. Therefore, in order to activate digital healthcare services, including telehealth, it is necessary to gradually define the concept of non-telemedicine, reimbursement policies, and immunity regulations for medical personnel in consideration of medical environment practices and technology utilization.