연명의료중단 등에 관한 환자의 의사(意思) 추정(推定)의 판단기준과 현행법의 문제

Abstract

Article 17 (1) 3 of The Act on Decisions on Life-sustaining Treatment for Patients in Hospice and Palliative Care or at the End of Life (hereinafter referred to as the ‘Life-sustaining Medical Determination Act’) was established based on the “patient’s presumptive intention” in the Supreme Court precedent for “the so-called grandmother Kim’s case or patient’s presumptive intention based on patient family statements” in the recommendation of the 3rd National Bioethics Committee. This is because it stipulates a method of confirming the patient’s intention on the premise that the patient’s prior autonomous intention exists. However, the content is quite far from guaranteeing the patient’s right to self-determination in terms of pure autonomy standards or legal principles. The above regulations stipulate that if there is a statement of agreement between two or more of the patient’s family members, it is regarded as the patient’s intention, but it does not have sufficient grounds to view it. Combining the text and clues of the above regulations, it is difficult to erase the impression that it is not just a procedure to estimate the patient’s intention, but to obtain consent from two or more family members. I am in a position that the above regulations should be improved into estimation regulations according to the pure autonomy standard. This is because the current law reflects the family’s values and positions, causing serious problems such as the risk of violating the patient’s right to self-determination and unfairly discriminating against unrelated patients. As a way to improve it, the estimated standards and methods of adult guardians under the German Civil Code are worth referring to.