환자의 자기결정권에 관한 연구-의사,환자관계의 유형을 중심으로-

박태신 ( Tae Shin Park ) 연세법학회 2014 연세법학 Vol.24 No.-

Relationship of physician and patients become estranged more than before. On the basis of such recognition, we need to and have to discuss the patient`s right to self-determination. In the midst of the discussions, theory and precedents to recognize the right to self-determination of a patient as a private law will being become the mainstream. The patient basically has a self-determination to decide for themselves on what will happen to his body and spirit. However, the contents and significance of the rights have not been clearly explained. Because there is a change in the doctor and patient relationship itself. In relation to this, the scholars have been discussed ① the self-determination and many of the concepts to be distinguished, ② the issues in the contents` significance of the right to self-determination and ③ the right of self￢determination to be used in its own value or in order to achieve other value problem. However, in this paper, I describe the general requirements for self-determination, and set the type of the doctor-patient relationship. And as the type, I have written the favor type, the contract type and the trust type. After that, I have asserted that the system of trust type must be considered as the relationship between the doctor` patient. In addition, I have concluded that discussing the right of self-determination of the patient in private law level is needed to be able to faithfully understand its significance and limitations. And to grasp the type of trust, the doctor and patients relationship were supposed to know the fact that give us useful resolution method to problems such as patient self-determination. That we have considered the doctor and patient as the trust type will give us the useful things. Because the self-determination are also all control of the information and appropriate medical care, it serves as a means for ensuring that the appropriate trust execution is carried out by a doctor.

환자의 자기결정권 확보방안

송영민(Song, Young-Min) 원광대학교 법학연구소 2015 의생명과학과 법 Vol.14 No.-

The issue of patient self-determination continues to exist in the beginning, progress and completion of medical care and in certain stages after the completion as well. Nevertheless, the discussion about liability for explanation in Korea has a problem with interpreting the scopes of application of patient self-determination in an excessively narrow way because it generally limits the problems to the cases in which medical invasion matters. For example, the issue of whether a patient should follow doctor's instruction or not when it requires the patient to do a certain act such as taking a medicine can be considered another aspect of patient self-determination. Factors affecting medical practice are various, including patient's general idea about medical treatment, his or her view of religion and life, and quality of life before or after the treatment. In such reality of medical service as what is called 'three-minute treatment', however, it is not easy for a doctor to get a grip on various factors, which tends to cause problems with doctor's violation of liability for explanation and infringement of patient self-determination. To address the issue, doctors have to underst and factors affecting patient self-determination on medical treatment, and to grasp fully the factors, they are obliged to confirm patient's individual opinions in detail. In addition, patient's right to self-determination is a prerequisite of patient's decision on his or her body, which is on the based of the idea of human dignity stated in Article 10 of our Constitution. Therefore, patient self-determination is always in existence and even though it can be exceptionally restricted in temporary and special circumstances, the exercise of the right to self-determination continues in effect when reasons for the restrictions cease to exist due to flexibility in the self-determination. Liability for explanation, a precondition to the exercise of the right to self-determination, also needs to be interpreted in the same way.

환자의 자기결정권 확보방안

송영민 원광대학교 법학연구소 2015 의생명과학과 법 Vol.14 No.-

The issue of patient self-determination continues to exist in the beginning, progress and completion of medical care and in certain stages after the completion as well. Nevertheless, the discussion about liability for explanation in Korea has a problem with interpreting the scopes of application of patient self-determination in an excessively narrow way because it generally limits the problems to the cases in which medical invasion matters. For example, the issue of whether a patient should follow doctor's instruction or not when it requires the patient to do a certain act such as taking a medicine can be considered another aspect of patient self-determination. Factors affecting medical practice are various, including patient's general idea about medical treatment, his or her view of religion and life, and quality of life before or after the treatment. In such reality of medical service as what is called 'three-minute treatment', however, it is not easy for a doctor to get a grip on various factors, which tends to cause problems with doctor's violation of liability for explanation and infringement of patient self-determination. To address the issue, doctors have to understand factors affecting patient self-determination on medical treatment, and to grasp fully the factors, they are obliged to confirm patient's individual opinions in detail. In addition, patient's right to self-determination is a prerequisite of patient's decision on his or her body, which is on the based of the idea of human dignity stated in Article 10 of our Constitution. Therefore, patient self-determination is always in existence and even though it can be exceptionally restricted in temporary and special circumstances, the exercise of the right to self-determination continues in effect when reasons for the restrictions cease to exist due to flexibility in the self-determination. Liability for explanation, a precondition to the exercise of the right to self-determination, also needs to be interpreted in the same way.

수의사의 애완동물에 대한 의료행위에 있어 동물소유자의 자기결정권에 관한 고찰 ― 서울중앙지법 2022. 2. 20. 선고 2020가단5281353 판결을 중심으로 환자의 자기결정권과 비교 ―

임지성 ( Lim Jisung ) 연세대학교 법학연구원 2022 法學硏究 Vol.32 No.3

As a growing number of people have pet animals and veterinarians undergo consequent medical treatment for pet animals, so legal disputes are on the rise. In judging the duty of explanation as well as the duty of care by a veterinarian’s medical practice in legal action, the court analogically applies legal principles of doctor’s duty of explanation to pet owners on the grounds that veterinary practice is similar to medical practice one with its high profession and that such practice is aimed to enhance an animal’s health. The recent amendment to the Veterinarians Act has stipulated that when a veterinarian performs a treatment which he/she deems likely to cause serious harm to an animal’s life or its body and he/she fails to fulfill the duty of explanation, it can constitute a breach of law. However, there is controversy as to whether infringement of a pet owner’s self-determination right might be recognized as the same legal principles as a patient’s autonomy right like the judgment. First of all, this paper explored relevant theoretical grounds and legal interests of the doctor’s and veterinarian’s duty of explanation and then looked into the similarities and differences between the patent’s autonomy and the pet owner’s self-determination right. The fulfillment of the veterinarian’s duty of explanation is premised on the fact that pet owners are entitled to have a self-determination right as to whether an animal gets veterinary treatment or not. Unlikely, the fulfillment of the doctor’s duty of explanation is a precondition that can enable patients to have the right of self-determination as a patient, closely associated with human dignity regarding intrusion upon one’s own body, except the patient’s autonomy right of medical contracts. Although there are discrepancies in legal nature and protection scope between a patient’s autonomy and a pet owner’s self-determination right, pet owners are entitled to have the same self-determination right as a patient regarding intrusion upon a body, citing that a veterinarian’s medical treatment is similar to a doctor’s medical practice, according to such judgment. However, veterinary treatment has something to do with one’s possession; in other words, intrusion upon an animal’s body rather than a pet owner. Therefore, if a veterinarian violates the duty of explanation for its treatment, it is then appropriate that infringement is properly considered to be on the self-determination right as a consumer, not on the self-determination right as a patient. In judging the veterinarian’s duty of explanation, this paper suggests that a pet owner will be entitled to have a self-determination right as a consumer who is related to a contract made for an animal’s treatment with a veterinarian within the legal interests of protection, rather than a self-determination right as a patient regarding intrusion upon a body, by the court considering the causes and backgrounds for new regulations of duty of explanation for serious treatment, including operation, under the Veterinarians Act and discrepancies in legal nature and protection scope between a constitutional patient’s autonomy and a pet owner’s self-determination right.

연명의료 결정에서 '환자의 자기결정권'의 한계에 대한 비판적 고찰

손보미(Son Bo Mee) 가톨릭생명윤리연구소 2015 인격주의 생명윤리 Vol.5 No.1

연명의료결정에서 가장 중요한 준거는 '환자의 자기결정권'을 존중해주는데 있다. 그러나 '환자의 자기결정권'을 다양한 관점에서 고찰한 결과 첫째, '환자의 자기결정권'은 '의료행위'의 과정에서만 성립할 수 있다는 한계를 가진다. 둘째, '관계적 자율성'의 관점에서 환자는 그가 속한 사회와 타자와의 관계 내에서 어떤 결정을 한다는 한계를 가진다. 셋째, 자기결정이론은 환자가 의료진의 지지를 받음으로써 자율적인 결정을 할 수 있음을 보여준다. 우리사회의 노인 돌봄 영역에서는 가족책임주의가 가지는 한계를 간파하여 가족에게 전적으로 돌봄을 의지할 경우 노인은 가족과의 관계에서 자아존중감이 취약한 상태가 된다는 결론을 도출하고, 가족 간의 자율을 억압하는 조건을 개선하기 위하여 사회적 돌봄 정책과 공적지원제도를 요청하는 '관계적 자율성'의 관점을 활용하고 있었다. 그리고 연명의료 결정방안을 위한 사례조사들은 환자들이 호스피스 완화의료를 받고자 한다는 점, 환자와 가족 간의 [정서적ㆍ경제적]부담감을 해소할 방안 등이 필요하므로, 경제적 지원과 병원윤리위원회 등을 통한 의견의 조정 등 체계적인 정책적 보완이 필요함을 제안하였다. 따라서 연명의료 결정에서 '환자의 자기결정권'을 존중하고 강화시키는 방안은 호스피스-완화의료 제도 확립과 시설확충, 병원윤리위원회의 활성화, 임종과정 환자에 대한 경제적 지원 등 다각적인 정책으로 환자들이 연명의료에 대하여 올바르게 결정할 수 있도록 사회적ㆍ문화적 토대를 적극적으로 마련하는 것이다. The most important criteria in deciding life-sustaining treatment is the respect for the 'patient right of self-determination'/'patient autonomy'. However, as for the 'patient right of self-determination' to decide life-sustaining treatment, first, it has a restriction of "in the course of medical activities". Second, from the perspective of 'relational autonomy', 'patient autonomy' has a restriction that the patient's determination is formed in the relationship between the society and the others. Third, Self-determination Theory shows a restriction of the patient's determination in that a patient can have 'autonomy' for him/herself only when medical doctors support them. In caring the elderly in our society, previous studies grasped the limitations of family-responsible system. If the elderly entirely rely on their family for their care, they would have weak sense of self-respect in the relationship with the family. The studies utilized the perspective of 'relational autonomy' to demand social care policies and public support system in order to improve the environment that suppresses the 'autonomy' between the family members. The case studies regarding deciding in life-sustaining treatment suggested that patients want to get hospice-palliative care; that both patients and family members need some plans to resolve the burden (economic support, etc.); and that systematic and supplementary actions are required with policies such as economic support and coordination of conflicts through Hospital Ethics Committee, etc. Therefore, in deciding life-sustaining treatment, the way that respects the 'patient right of self-determination' and strengthens 'patient autonomy' can be found in actively seeking for social and cultural foundation in order that the patients can make a right decision on the life-sustaining treatment through providing diverse policies. These include establishing hospice-palliative care system; vitalizing the Hospital Ethics Committee; economic support for the patients who face the death, etc.

연명의료결정제도의 발전적 전개를 위한 방법론의 모색 — 사전연명의료의향서의 법적 지위 및 역할의 강화 필요성 —

안동인(Ahn Dongin) 행정법이론실무학회 2021 행정법연구 Vol.- No.65

우리 사회의 급속한 고령화 추세를 감안할 때, 고령인구에 대한 이른바 생애말기 의료체계의 구축과 점검이 요청된다. 이와 관련하여 현재 호스피스 완화의료 및 임종과정에 있는 환자의 연명의료결정에 관한 법률 (이하, ‘연명의료결정법’이라 함)이 시행되고 있다. 이는 생명에 대한 환자의 ‘자기결정권’을 법제화한 것으로서, 생명윤리를 바라보는 국가와 사회의 태도에 있어 일대 전환점을 마련한 것으로 평가할 수 있다. 연명의료결정법상 ‘연명의료중단등결정’이 바로 생애말기 의료체계의 핵심이라 할 수 있다. 이에 대한 정당화 근거로서 연명의료결정법은 기본적으로 환자의 자기결정권을 제시하고 있고, 의학적 기준 등을 고려한 객관적인 상황이나 요건으로 환자의 자기결정권을 보완하고 있다. 한편 연명의료중단등결정을 위한 환자의 의사를 확인하는 핵심적인 근거가 사전연명의료의향서와 연명의료계획서인데, 이는 법제화 과정에서 각각 미국의 AD(Advance Directives) 및 POLST(Physician Orders for Life-Sustaining Treatment)를 참고한 것으로 알려져 있다. 그런데 AD는 장래에 알려지지 않은 의학적 응급상황이 발생한 경우 작성자가 처치받기를 원하는 치료의 유형에 대한 지침을 제공하기 위하여 사용하는 법률적 문서(Legal Document)인 반면에, POLST는 의학적 긴급상황에서 환자의 진단, 예후, 치료옵션 및 치료목표에 따라서 작성자가 원하는 구체적인 의학적 치료에 대한 내용을 기재한 휴대가능한 의학적 지시(Potable Medical Order)라는 점에서 그 법적 성질 및 내용 등의 차이가 있다. 또한 양자는 서로 선택적 관계나 대체적 관계에 있는 것이 아니라 상보적인 관계에서 작용하는 것이다. 따라서 이는 연명의료중단등결정에 대한 환자의 의사를 확인하는 선택적 수단으로 기능하며, 내용 면에서도 별다른 차이점이 없는 우리 연명의료결정법상의 사전연명의료의향서 및 연명의료계획서와는 구별된다. 연명의료결정제도의 핵심은 환자의 자기결정권이고, 이를 충실히 고수하기 위해서 연명의료중단등결정에 대한 의사확인은 사전연명의료의향서를 바탕으로 삼는 것이 제도적으로 타당하다고 판단된다. 따라서 향후 이 부분에 대한 보다 진지한 검토가 요청된다 할 것이다. 나아가 환자의 자기결정권에 대한 보다 적극적인 존중이라는 측면에서 향후 연명의료결정법을 보다 일반적인 이른바 「환자자기결정법」으로 발전적 전개해 나가는 것을 적극적으로 고려해 볼 필요도 있을 것으로 생각된다. Given the rapid aging trend of our society, it is demanded to establish and inspect the so-called end-of-life health care system for the elderly population. In this regard, the ‘Act on Hospice and Palliative Care and Decisions on Life-Sustaining Treatment for Patients at the End of Life’ (hereinafter referred to as the “Act”) is currently in force. This legislated the patient"s ‘right to self-determination’ about life, which can be evaluated as a turning point in the attitude of the state and society towards bioethics. Under the Act, the ‘determination to terminate, etc. life-sustaining treatment’ is the core of the end-of-life health care system. As a justification for this, the Act basically presents the patient"s right to self-determination, and supplements the patient"s right to self-determination with objective circumstances and requirements that consider medical standards. Meanwhile, the key bases for confirming a patient"s intention for the determination to terminate, etc. life-sustaining treatment are the advance statement on life-sustaining treatment and the life-sustaining treatment plan. It is known that the AD(Advance Directives) and the POLST(Physician Orders for Life-Sustaining Treatment) form of the United States were referred to respectively during the legislative process. An AD is a legal document used to provide guidance about what types of treatments a patient may want to receive in case of a future, unknown medical emergency, whereas a POLST form is a portable medical order for specific medical treatments a patient would want based on his/her diagnosis, prognosis and goals of care in a medical emergency. As such, the two are different in their legal nature and content, etc. Furthermore, the two are not in an optional or alternative relationship with each other, but rather operate in a complementary relationship. Therefore, it is distinct from the advance statement on life-sustaining treatment and the life-sustaining treatment plan under Korean legislation, which function as an optional means of confirming the patient"s intention for the determination to terminate, etc. life-sustaining treatment, and there is no significant difference between them in terms of content. The core of the system of decisions on life-sustaining treatment is the patient"s right to self-determination. In order to faithfully adhere to this, it is judged that it is institutional reasonable to confirm the determination to terminate, etc. life-sustaining treatment based on a advance statement on life-sustaining treatment. Therefore, a more serious review of this aspect is requested in the future. Furthermore, in terms of more active respect for the patient"s right to self-determination, it is necessary to actively consider developing the Act into a more general so-called ‘Patient Self-Determination Act’ in the future.

존엄사의 헌법적 보장-죽음에 대한 자기결정권의 구성요건 설정을 중심으로-

주재경 원광대학교 법학연구소 2022 圓光法學 Vol.38 No.4

South Korea recognizes death with dignity only in the form of cessation of life-sustaining treatment for patients in the process of dying. Accordingly, a terminally ill patient or a patient in a persistent vegetative state cannot make a decision to die with dignity, and even if he or she is the target, there are limitations in choosing a method of dying with dignity such as physician-assisted suicide. These limitations cannot preclude discussion from the stage of component requirements. Therefore, in the decision to die with dignity, it is necessary to ensure that death with dignity is sufficiently guaranteed through the establishment of the component requirements for the right to self-determination on death. Regarding the requirements for becoming the subject of the right to self-determination on death in the decision to die with dignity, the requirements of irreversibility and the uselessness of treatment become the focal points. Accordingly, it is against the principle of equality to exclude a patient who has no essential difference from a patient in the process of dying and who meets the requirements from the subject. Therefore, in principle, it is desirable to acknowledge the subjectivity of the right to self-determination on death for these patients. First, in terms of the right to defense of the right to self-determination on death, the subject of the decision to die with dignity can request that the state stop restrictions on physician-assisted suicide. In the same respect, it is possible to ask the state to make a decision to discontinue general life-sustaining treatment. Next, based on the social rights aspect of the right to self-determination on death, the subject of decision to die with dignity can claim the right to receive social insurance and public assistance from the state. In particular, it can be requested that the state prepare overall welfare conditions such as hospice and palliative care systems so that patients' self-determination can be free from economic pressure. And, in terms of the protective right of the right to self-determination on death, the subject of the decision to die with dignity may claim the right to receive assistance from a doctor to the state. For example, if death with dignity is carried out by a private person other than a doctor, the right to self-determination on death may be violated, so the patient can request legislation to the state that obligates the participation of doctors in the decision to die with dignity. Lastly, in terms of the procedural right of the right to self-determination on death, in relation to organizations, supplementary legislative requests can be made to the state to expand the establishment or vitalize the operation of the Medical Institution Ethics Committee or the Public Ethics Committee. Regarding the procedure, it may be possible to request the state to prepare legislation to supplement the procedure for implementing death with dignity.

환자의 알권리와 자기결정

안선화 ( Seon Hwa Ahn ),김용순 ( Yong Soon Kim ),유문숙 ( Moon Sook Yoo ),방경숙 ( Kyung Sook Bang ) 한국의료윤리학회 2009 한국의료윤리학회지 Vol.12 No.2

Purpose: The purposes of this study were a) to examine the level of awareness among patients of their right to know and their right to self-determination, and b) to determine the relationship between patients` awareness of these two rights. Method: For this descriptive-correlational study, participants were recruited at the endoscopic examination rooms of two university hospitals. Responses to self-report questionnaires were collected from 236 participants from 20 December 2007 to 10 November 2008. Results: On the basis of a five-point scale, the average scores were 3.67 for patients` awareness of their right to know and 2.81 for their awareness of their right to self-determination. The relationship between their awareness of these two rights was not significant. The recognition of a patient`s right to know was higher among those with a college education. Awareness of a patient`s right to self-determination varied according to age, education level, and economic status. Conclusion: There is an insufficient awareness among patients of their rights to know and to selfdetermination, especially for those with a lower education. Nurses should consider a patient`s right to know when providing medical treatment and to assist their right to self-determination. Systematic educational programs on patients` rights need to be developed for both patients and medical personnel.

연명의료결정에 있어서 사전의료지시에 관한 연구

정화성 중앙대학교 법학연구원 문화.미디어.엔터테인먼트법연구소 2022 문화.미디어.엔터테인먼트 법 Vol.16 No.2

Humans exercise their right to make their own decisions and act accordingly on matters related to their lives in various areas such as life, freedom, and property, which the state guarantees as a law. In this sense, the Life-sustaining Treatment Decision Act institutionalizes the life-sustaining treatment decision of patients on their deathbed so that all citizens can respect the patient's self-determination, guarantee the patient's dignity and value, and finish their lives comfortably. In particular, the patient's right to self-determination is the right to make self-determination without interference from others, and the patient's right to self-determination is the patient's right widely recognized in most medical practices. These patients' right to self-determination is recognized as an important criterion for life-sustaining treatment decisions, and advance directives are the best system to protect patients' right to self-determination. On the other hand, the principle of respecting autonomy should be respected in advance directives, and since it is an important way to confirm the patient's intention, the legal basis for "informed consent" should be prepared and guaranteed. However, advance directives exist in various types, and there is a limit to the method of confirming the patient's intention, so advance directives that meet the procedures and requirements for life-sustaining treatment decisions should be supplemented with a system suitable for reality. 인간은 생명, 자유, 재산 등 다양한 영역에서 자신의 인생과 관련된 문제들에 관하여 스스로 결정하고 그에 따라 행동할 권리를 행사하고, 이는 국가가 법으로써 보장하고 있다. 이러한 의미에서 「연명의료결정법」은 환자의 자기결정을 존중하고 환자의 존엄과 가치를 보장함과 동시에 국민 모두가 인간적인 품위를 지키며 편안하게 삶을 마무리할 수 있도록 임종과정에 있는 환자의 연명의료결정을 제도화한 것이다. 특히, 환자가 다른 사람으로부터 간섭을 받지 아니하며, 스스로 결정할 수 있는 권리가 자기결정권이며, 환자의 자기결정권은 대부분의 의료행위에서 폭넓게 인정되는 환자의 권리이다. 이러한 환자의 자기결정권이 연명의료결정의 중요한 판단기준으로 인정되고 있으며, 이에 사전의료지시는 환자의 자기결정권을 보호할 수 있는 가장 좋은 제도이다. 한편, 사전의료지시는 자율성 존중의 원리가 존중되어야 하며, 환자의 의사를 확인할 수 있는 중요한 방법이기 때문에 ‘충분한 설명을 듣고 난 후의 동의’의 법적 근거를 마련하여 이를 보장하여야 한다. 하지만, 사전의료지시는 다양한 유형으로 존재하면서, 환자의 의사를 확인하는 방식에 한계가 있어 ‘환자의 최선의 이익’을 위해 연명의료결정에 관한 절차와 요건에 맞는 사전의료지시를 현실에 적합한 제도로 보완하여야 한다.

의료소비자의 비급여 진료에 대한 자기결정권 행사와 관련 요인

김지은,함명일,이혜원,김선정,Kim, Ji Eun,Hahm, Myung-il,Lee, Hyewon,Kim, Sun Jung 한국병원경영학회 2022 병원경영학회지 Vol.27 No.1

Purposes: This study was to investigate intention to exercise the patient's right of self-determination on adopting the non-benefit medical services and was to identify factors associated with intention to self-determined decision. Methodology: A total of 1,000 adult respondents aged 20 to 65 years were recruited using stratified random sampling and surveyed by online. Multivariate logistic regression analysis was performed to identify factors associated with intention to self-determined decision using SAS 9.4(SAS Institute Inc. Cary, NC, USA). Findings: 61.9% of total participants(n=592) had intention to exercise patient's right of self-determination on adopting the non-benefit medical services. Significant differences were observed in the exercise of self-determination in relation to prior explanation and opportunity for self-determination. Practical Implications: This study suggested that explanation duty of provider might influence on increasing intention to exercise the patient's right of self-determination. Considering appropriate use of non-benefit services, it is important to enhance explanation duty of provider.