성년후견인의 의료행위에 대한 동의권과 법률상의 제 문제

Abstract

On September 18, 2009, the Ministry of Justice (MoJ) pointed out that “the current Civil Law of Korea contains provisions on behavioral capacity and guardianship system to help the mentally handicapped people, but still uses negative terms like incompetency and quasi incompetency. Besides, current Civil Law uniformly restricts behavioral capacity without regard to their own intents or disability level, causing social prejudices toward those people. And current Civil Law also caused the scope of legal protection to be limited to property-related legal actions, making it difficult to provide various and practical assistances in welfare for those handicapped people.” Furthermore, MoJ announced that “conventional behavioral capacity and guardianship system should be extended or reorganized into adult guardianship system from the viewpoint of social welfare, so that potential users of guardianship system to prepare for their weakened mental capacity in the future, as well as current mentally disabled people can rely upon a wide range of assistances in their welfare (e.g. medical treatment and recuperation) as well as their property-related legal actions.” In this context, MoJ beforehand informed legislation of a bill to revise some provisions of Civil Law. The purpose of newly introduced adult guardianship system is not to restrict behavioral capacity of adult wards, but to respect their right of self-determination, empower adult guardian to complement their capacity of legal action in the interest of protecting persons who lack in ability of mental judgment due to old age and senile diseases, so that said system can make positive use of adult wards' potential capacity. In other words, the adult guardianship system is premised on the extensive modification of concepts on the capacity of human as principal of legal action; focuses on potential human ability; starts from the ideology of respecting one's self-determination depending on his or her ability; respects adult wards' current determination by their own mental capacity to the highest extent, although it is insufficient as compared to normal mental capacity; and assists them in doing what they need to do with the help of adult guardian, so that they can enjoy the daily life as normal people do, ultimately with a view to realizing the ideology of normalization. Starting from the above critical mind, this study focused on examining adult guardian's right of consent to medical practices for adult ward in terms of new adult guardianship system that is supposed to be executed through partial revision of current Civil Law. Duty of care for ward is important one of adult guardian's duties, which involves actions of adult guardian responsible for signing appropriate medical contract or admission contract on behalf of ward in response to change of ward's health conditions. But it is inevitably disputable that the grant of right to consent to medical practices involving physical invasion may be extensively construed as adult guardian's consent to medical invasion in respect of his or her opinions on behalf of ward. Particularly, the issue of right to consent to medical practices involving physical invasion is not limited only to that of aged people. Thus, it is possible that this issue is resolved with patient's own consent according to physician's description, as discussed so far. In addition, it is required to prepare new legislations on legal validity of patient's presumed intention and disposition inter vivos in order to prepare for potential cases that adult wards cannot express their own opinions on medical practices due to their old age or senile diseases. In this regard, it is necessary to make differentiated discussions on adult guardianship system from such legislative matters.