현행법상 존엄사의 허용요건과 과제: 연명의료결정법을 중심으로

Abstract

This article suggests solutions after grasping situations and analyzing causes of problems caused by enforcement of so-called ‘Death with Dignity Act’, that is ‘Act on Decisions on Life-Sustaining Treatment for Patients in Hospice and Palliative Care or at the End of Life’(shortly named ‘Act on Decisions on Life-Sustaining Treatment’). The withholding or withdrawal according to the Act on Decisions on Life-Sustaining Treatment can be principly justified by the principle of the right to self-determination. However, if patient is a minor or can not confirm his or her intention, the withholding or withdrawal according to the Act on Decisions on Life-Sustaining Treatment can be exceptionally justified by decision of minor’s parents or agreement of all members of his or her family, that is so-called others-determination, granted as an exception to the self-determination. Here, regarding ‘Act on Decisions on Life-Sustaining Treatment’, it is criticized as problems that the above Act can not thoroughly carry out the principle of the right to self-determination and leads to legal blank space in the case of a person without any family member. Because the principle of the right to self-determination has so-called exception of others-determination and the above Act has legal blank space. This article proposes a limitation theory of doctor’s treatment obligation as a solution to above problems. In other words, a limitation theory of doctor’s treatment obligation is suggested as a justification basis for withholding or withdrawal of life-sustaining treatment at the end of life in addition to the principle of the right to self-determination. According to above limitation theory of doctor’s treatment obligation, is a doctor’s legal treatment obligation ended when there is no medical indication which is composed of justification requirements for medical treatment togather with medical righteousness and informed consent. Thus, for the patients at the end of life, the medical indication can be denied under certain conditions, so that treatment obligation can be terminated as a result. If the treatment obligation has been terminated, withholding or withdrawal of life-sustaining treatment may already be outside of legal protection. Therefore, a limitation theory of doctor’s treatment obligation leads to the conclusion that it can substitute for criticism of others-determination and resolve the legal blank space against a person without any familymembers.