현행법상 존엄사의 허용요건과 과제: 연명의료결정법을 중심으로

주호노 한국의료법학회 2018 한국의료법학회지 Vol.26 No.1

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. 이 논문은 연명의료결정법이 초래하고 있는 문제의 현상을 파악한 후 그 원인을 분석하고 그에 대한 대책을 제시하고 있다. 연명의료결정법은 임종과정에 있는 환자의 연명의료의 보류 또는 중단에 대한 정당화근거로서 원칙적으로 환자의 자기결정권에 입각하고 있다. 다만, 환자가 미성년자인 경우나 본인의 의사를 확인할 수 없는 경우에는 친권자의 의사에 의하거나 가족 전원의 합의에 의하여 연명의료의 보류 또는 중단을 인정하는 자기결정의 예외로서 타인결정을 인정하고 있다. 여기서 연명의료결정법에 대하여는 환자의 자기결정권을 철저히 관철하지 못하고 있다는 점과 가족도 없는 무연고자의 경우에는 자기결정이 불가능한 경우 타인결정도 불가능하게 되어 법적 공백이 발생되고 있다는 점에 대하여는 문제점으로서 비판되고 있다. 이 논문은 이러한 문제점들에 대한 해결책으로서 의사의 치료의무한계론을 제시하고 있다. 다시 말해서, 연명의료의 보류 또는 중단에 대한 정당화근거로서 환자의 자기결정권 외에 의사의 치료의무한계론을 추가적으로 제시하고 있다. 의사의 치료의무한계론에 의하면 연명의료를 포함한 치료행위는 의술적 타당성과 설명후동의의 원칙과 함께 치료행위의 정당화요건인 의학적 적응성이 없는 경우에는 의사의 치료행위는 종료한다는 원리를 내용으로 하고 있다. 따라서 임종과정에 있는 환자에 대하여는 일정한 요건하에 의학적 적응성이 부정될 수 있고, 그 결과로서 치료의무가 종료된다고 할 수 있게 된다. 치료의무가 종료된 상황이라면 연명의료에 대한 보류 또는 중단은 이미 법적 보호의 대상이 아니라고 할 수 있게 된다. 따라서 의사의 치료의무한계론은 타인결정에 대한 비판이나 무연고자에 대한 법적 공백을 해결할 수 있는 대안이 될 수 있다는 결론에 이르게 된다.

연명치료 중단 관련 법ㆍ정책 방향

강현희,손명세,김소윤,이은영 한국의료법학회 2008 한국의료법학회지 Vol.16 No.1

Boramae Hospital case in 1997 raised a lot of disputes in regard to the stopping treatment, and it brought a lot of problems such as raising a defensive treatment prevalent, limiting the choices of patients and families, deepening conflicts between guardians and medical staffs, increasing social cost, and conflicting between systems. However, Korea does not have any legal or systematical mechanism to resolve those problems, thusthese problems have been more accelerated. These reverse functions that were caused by stopping prolonging life seem to disregard an ethnic side, these problems in regard to withdrawing medically futile treatments were examined by means of applying four principles of medical ethnics to prepare for the systematical direction in terms of law and policy. Legal and systematical innovation was needed to improve the right to decide by patients and their family, to substantiate health insurance, to supplement undeveloped medical field, to secure balance of expenditure for the finance of health insurance, and to justify withdrawing medically futile treatments. It is necessary to carry out withdrawing medically futile treatments even before the related law is passed from the point of medical organization's view. Medical organization shall prepare a guideline and a performing plan with respect to writing an agreement form, standard of decision making and procedure, an organizational committee for withdrawing medically futile treatments and medical staff meeting. In addition, in order for voluntary participation within the medical organization, public relations and education should be maintained simultaneously. It is also necessary for the government should state basic regulations by means of organizing one chapter binding existing relevant laws such as MEDICAL SERVICE ACT and ACT ON BIOETHICS AND SAFETY. However, it is hard to comprehend all patients subject to withdrawing medically futile treatments due to the particularity and limitation of patients subject to the existing law. Therefore, preparing an independent law, so-called Act on withdrawing medically futile treatments, can be considered because there are other legislation cases in foreign countries and it can be easier when connecting hospices as a subtitling plan. Moreover, in order for successful try-out for withdrawing medically futile treatments, it should be essential not only education and public relations from the government, but also the fund to reduce an economical burden when continuing treatments.

Decision-making regarding withdrawal of life-sustaining treatment and the role of intensivists in the intensive care unit: a single-center study

이서인,홍경숙,박진,이영주 대한중환자의학회 2020 Acute and Critical Care Vol.35 No.3

Background: This study examined the experience of withholding or withdrawing life-sustaining treatment in patients hospitalized in the intensive care units (ICUs) of a tertiary care center. It also considers the role that intensivists play in the decision-making process regarding the withdrawal of life-sustaining treatment. Methods: We retrospectively analyzed the medical records of 227 patients who decided to withhold or withdraw life-sustaining treatment while hospitalized at Ewha Womans University Medical Center Mokdong between April 9 and December 31, 2018. Results: The 227 hospitalized patients included in the analysis withheld or withdrew from life-sustaining treatment. The department in which life-sustaining treatment was withheld or withdrawn most frequently was hemato-oncology (26.4%). Among these patients, the most common diagnosis was gastrointestinal tract cancer (29.1%). A majority of patients (64.3%) chose not to receive any life-sustaining treatment. Of the 80 patients in the ICU, intensivists participated in the decision to withhold or withdraw life-sustaining treatment in 34 cases. There were higher proportions of treatment withdrawal and ICU-to-ward transfers among the cases in whom intensivists participated in decision making compared to those cases in whom intensivists did not participate (50.0% vs. 4.3% and 52.9% vs. 19.6%, respectively). Conclusions: Through their participation in end-of-life discussions, intensivists can help patients’ families to make decisions about withholding or withdrawing life-sustaining treatment and possibly avoiding futile treatments for these patients.

The Situation of Life-Sustaining Treatment One Year After Enforcement of the Act on Decisions on Life-Sustaining Treatment for Patients at the End-of-Life in Korea: Data of National Agency for Management of Life-Sustaining Treatment

이하연,김화정,권정혜,백선경,원영웅,김유정,백수진,류혜원 대한암학회 2021 Cancer Research and Treatment Vol.53 No.4

Purpose The “Act on Hospice and Palliative Care and Decisions on Life-Sustaining Treatment for Patients at the End-of-Life” was enacted on February 3, 2016 and went into effect on February 4, 2018 in Korea. This study reviewed the first year of determination to life-sustaining treatment (LST) through data analysis of the National Agency for Management of Life-Sustaining Treatment. Materials and Methods The National Agency for Management of LST provided data between February 4, 2018 and January 31, 2019 anonymously from 33,549 patients. According to the forms patients were defined as either elf-determinants or family-determinants. Results The median age of the patient was 73 and the majority was male (59.9%). Cancer patients were 59% and self-determinants were 32.1%. Cancer patients had a higher rate of self-determinants than non-cancer (47.3% vs. 10.1%). Plan for hospice service was high in cancer patients among self-determinants (81.0% vs. 37.5%, p < 0.001). In comparison to family-determinants, self-determinants were younger (median age, 67 years vs. 75 years; p < 0.001) and had more cancer diagnosis (87.1% vs. 45.9%, p < 0.001). Decision of withholding or withdrawing of LSTs in cancer patients was higher than non-cancer patients in four items. Conclusion Cancer patients had a higher rate in self-determination and withholding or withdrawing of LSTs than non-cancer patients. Continued revision of the law and education of the public will be able to promote withdrawing or withholding the futile LSTs in patients at end-of-life. Further study following the revision of the law should be evaluated to change of end-of-life care.

무의미한 연명치료 중단에 대한 중환자 전담의사의 인식: 포커스그룹 인터뷰를 중심으로

김상현,손명세,고신옥,이일학 한국의료윤리학회 2012 한국의료윤리학회지 Vol.15 No.3

This study was designed to examine intensive care providers’ perceptions of medically futile treatment. Focus group interviews were conducted with 18 intensive care physicians in charge of critical care units at tertiary hospitals in Daegu, Gwangju, and Seoul, South Korea. Results are as follow. 1. More than half of the participants opposed the inclusion of persistent vegetative state (PVS) patients in the category of medically futile treatment. 2. And though the distinctions between ordinary and extraordinary treatment, and between the withholding and withdrawal of treatment, were not clinically meaningful in the intensive care units under study, they are nevertheless relevant because of individual religious beliefs and Korean cultural traditions. 3. Since the beliefs and traditions of family members often makes it difficult for a patient to fill out advance directives, we argue that a gradual approach would be useful in choosing advance directives, making those directives optional rather than mandatory. 4. Economic factors also play a crucial role in the decision-making process regarding futile treatment in Korea. These factors were neglected in earlier surveys. Finally, the participants insisted that the physician’s right to make clinical decisions about medically futile treatment should be legislatively guaranteed based on their convictions. Based on the results of this study, we suggest the follow: a) that detailed criteria for medically futile treatments be established; b) that a decision-making process be developed that is culturally, ethically, medically, and legally acceptable; and c) that ethical education be provided to intensive care physicians.

공법 : 의사의 연명치료중단행위에 대한 형법적 정당화 요건과 구조

이백휴 ( Baek Hyu Lee ) 한양대학교 법학연구소 2010 법학논총 Vol.27 No.4

The purpose of this study is to search the requirements and structure of the "Physician`s Withdrawal of Life-Sustaining Treatment(LST)" or "physician-assisted suicide(PAS)", and to justify their actions in the context of the Criminal Law. If the patient died by "(Murder by) "the Physician`s Withdrawal of LST" or "PAS", this comes under Article 250 Section 1(Murder), Article 252 Section 1(Murder upon the Request), Article 252 Section 2(aiding to commit suicide) of the Criminal Code. But, if this meets certain conditions, "the Physician`s Withdrawal of LST" or "PAS" could be justified. (1) The basic conditions: i) The Physician must behavior. ii) It must meet the Justification of medical Treatment. (2) The objective conditions : i) The patient must be in an incurable and irreversible disease that has been medically confirmed and will, within reasonable medical judgment, produce death. ii) Treatment of this stage must be a medical futility in the end-of-life care. (3) The objective condition : It must be a patient`s informed consent, self determination about "the Withdrawal of LST" or "PAS". If the case meets all the conditions for its justification or if it does not meet some conditions, we will study the structure of justification about "the Physician`s Withdrawal of LST" or "PAS" in criminal law. (1) First, since this issue is related to people`s lives, there are various types of conflicts about the value. Thus, it is necessary to enact laws for physicians to be relieved from the legal disputes and to resolve specific problems (procedural legitimacy) related this process. (2) Meanwhile, it is necessary to solve the problems, related legislations are not exist, or legislation exists, but its interpretations are controversial, or exempted from the legislation. i) If it is clear that the patient is in an incurable and irreversible disease, the withdrawing of LST or aiding the patient to commit suicide would be legally allowed depending on their medical decision, regardless of the patient`s own will. But if it is clear that the patient is in an curable and reversible disease, the Physician should continue the treatment for patients. ii) If it is not clear whether the patient has an incurable and irreversible disease or not, and if treatment in this situation is medical futility-within reasonable medical judgment-, "the Physician`s withdrawing of LST" or "PAS" can be allowed according to patient`s current, voluntary and explicit will for the purpose of ending his or her life (legitimacy on right to self determination). Thus, if the legal requirements for justification, including the patient`s will, are established, then they can be evaluated, it is an act which does not violate the Normal Social Rules (Korean Criminal Act Article 20).

연명의료 중지와 완화의료

이명아 대한의사협회 2019 대한의사협회지 Vol.62 No.7

Hospice and palliative care can help terminal patients and their family members to face the natural end of life more comfortably, by providing them with an environment to address psychosocial and spiritual problems, as well as physical symptoms. However, most patients and their caregivers have the misconception that hospice care means the withdrawal of all treatments. Many physicians also consider hospice care to be a form of terminal care after all treatments are finished. Laws regulating the withdrawal of life-sustaining treatment came into effect in Korea in 2018, and these regulations also apply to most terminal stages of benign diseases. The withdrawal of futile lifesustaining treatment is quite different from euthanasia or negligence. At the last stage of disease, treatment aimed at alleviating various symptoms can make critically ill patients more comfortable and thereby help them to die with dignity. Patients with a terminal illness should receive hospice and palliative care, instead of futile life-sustaining treatment. Therefore, education and training programs to promote a proper understanding of hospice and palliative care should be considered mandatory.

연명의료결정법과 의료기관윤리위원회: 현황, 경험과 문제점

최지연,장승경,김정아,이일학 한국의료윤리학회 2019 한국의료윤리학회지 Vol.22 No.3

Institutional Ethics Committees are responsible for reviewing, consulting, and educating about matters related to life-sustaining treatment, these committees should play a substantial role in implementing the Act in each hospital. However, there are few such committees and their operations have been limited in many respects. In this article we report on a survey that was carried out to assess the difficulties faced by 63 committee administrators. We also conducted focus-group interviews with seven medical professionals or administrators working in health care institutions in which a committee has been established. Subjects were asked about the difficulties these committees face in advising on foregoing life-sustaining treatment. The operational problems that were reported include the following: difficulties in accessing patients’ records of decisions concerning life-sustaining treatment, obstacles in using Shared Ethics Committees, legal and administrative complexities in diagnosing the end-of-life process, the lack of expertise of committee members and administrators, manpower shortages on the committees, and medical professionals’ negative views of the Act’s procedures for life-sustaining treatment decision-making. In order to deal with these problems, we suggest the following solutions: improving the accessibility of patients’ life-sustaining treatment decisions, encouraging the use of Shared Ethics Committees, defining the qualifications and training requirements for Committee members, establishing better communications among committee members; creating an educational system for medical professionals in order to improve their understanding of the committees’ role; and developing standard operating procedures for the committees. 연명의료결정법이 시행된 지 1년이 넘게 지났다. 연명의료결정법이 치료에 대한 자기결정을 확산하여생애 말기 치료 문화 및 관행에 변화를 가져올 것이라는 기대가 있었으나 아직 제도는 안착하지 않았고 개선되어야 할 다양한 과제들이 드러나고 있다. 특히 연명의료결정법이 규정하는 다양한 관련기관 중 연명의료중단등결정을 비롯하여 이행에 관한 심의, 상담, 교육의 실질적인 주체가 되는 의료기관윤리위원회의 경우, 이를 설치한 의료기관의 수도 적을 뿐 아니라 운영에 한계를 경험하고 있다. 이에 본 연구는 의료기관윤리위원회 행정간사 63명을 대상으로 위원회의 운영현황 및 업무상 어려움을 파악하는 설문조사를수행하였으며 의료기관윤리위원회 설치 의료기관의 의료인 및 행정간사 7명을 대상으로 초점집단면접을 수행하여 의료기관윤리위원회를 운영함에 있어 나타나는 연명의료중단등결정에 대한 실질적인 장애요인을 파악하여 이에 대한 해결책을 모색하고자 하였다. 본 연구에서 나타난 의료기관윤리위원회의 운영상 문제점은 환자의 연명의료정보열람에 따른 고충, 윤리위원회 미설치기관의 공용윤리위원회 활용 장벽, 연명의료중단 등 임종기 결정 관련 법적ㆍ행정적 절차의 복잡성, 행정간사 및 위원의 경험 및 전문지식 부족, 의료기관윤리위원회 실무인력 부족, 연명의료결정제도에 대한 의료인의 부정적 인식이었으며이를 해결하기 위하여 환자의 연명의료결정 정보 접근성 확보, 공용윤리위원회의 활성화의 가능한 방안, 의료기관윤리위원회 전담인력 규정 및 양성, 다른 의료기관에 있는 의료기관윤리위원회 간 소통 구조 형성, 의료인 인식개선을 위한 교육체계 수립, 의료기관 윤리위원회 표준운영지침 개발을 제시하였다.

간호사의 연명치료중단아동 돌봄경험

박소연,주현옥,이가언 한국아동간호학회 2017 Child Health Nursing Research Vol.23 No.3

Purpose: The purpose of this study was to describe feelings and actions of nurses following withdrawal of life-sustaining treatment from children being cared for by the nurses. Methods: Data were collected by in-depth interviews with 7 nurses from different hospitals where children receiving nursing care had life-sustaining treatment withdrawn. The interviews were conducted from August 2016 to February 2017 when all data were saturated. Interviews lasted 30~90 minutes and were conducted 2~3 times per participant. Data were analyzed using Giorgi’s phenomenological research methodology. Results: The following factors constituted experiences of nurses working in pediatric wards when life-sustaining treatment was withdrawn from children: “agony and conflict in the aspects of care”, “heavy mind and regret for exhausting care”, “intentionally avoiding parents’ sadness”, “comforting sadness in the heart” and “orientation in the role of caring for children undergoing withdrawal of life-sustaining treatment.” Conclusion: Findings indicate that support systems and intervention programs need to be developed so that nurses can understand and wisely deal with experiences of withdrawal of life-sustaining treatment from children who receive care from nurses.

노인의 자아통합감, 사전연명의료의향서 지식이 연명치료중단 태도에 미치는 영향

염은이,서금숙 한국노인간호학회 2019 노인간호학회지 Vol.21 No.3

Purpose: This descriptive correlation study was done to investigate the influence of older person's ego integrity and knowledge of advance directives on their attitude toward withdrawal from life-sustaining treatment. Methods: The participants were 155 older persons residing in B city. Data were collected from February 11 to March 8, 2019. Data analysis was performed using descriptive statistics, t-test, one-way ANOVA, Pearson correlation coefficient, and stepwise multiple regression analysis. Results: Ego integrity was positively correlated with knowledge of advance directives and attitude toward withdrawal from life-sustaining treatment. Knowledge of advance directives was positively correlated with attitude toward withdrawal from life-sustaining treatment. The factors influencing attitude toward withdrawal from life-sustaining treatment were participants' economic status, ego-integrity and knowledge of advance directives. These variables explained 17.1% of older person's attitude toward withdrawal from life-sustaining treatment. Conclusion: The findings indicate that ego integrity and knowledge of advance directives are important factors in changing older people's attitude toward withdrawal from life-sustaining treatment. Therefore, systematic programs to enhance the older person's ego integrity level and improve their knowledge of advance directives should be developed.