• The Korean Society of Law and Medicine
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• v.17 no.2
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• pp.145-173
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• 2016

A patient's Right to Self-Determination or his/her Right of Autonomy in the Republic of Korea has traditionally been understood as being composed of two elements. The first, is the patient's Right to Know as it pertains to the physician's Duty to Report [the Medical Situation] to the patient; the second, is the patient's Right to Consent and Right of Refusal as it pertains to the physician's Duty to Inform [for Patient's Consent]. The legal and ethical positions pertaining to the patient's autonomous decision, particularly those in the interest of the patient's not wanting to know about his/her own body or medical condition, were therefore acknowledged as passively expressed entities borne from the patient's forfeiture of the Right to Know and Right to Consent, and exempting the physician from the Duty to Inform. The potential risk of adverse effects rising as a result of applying the Informed Consent Dogma to situations described above were only passively recognized, seen merely as a preclusion of the Informed Consent Dogma or a denial of liability on part of the physician. In short, the legal measures that guarantee a patient's 'Wish for Ignorance' are not currently being understood and acknowledged under the active positions of the patient's 'Right Not to Know' and the physician's 'Duty to Consideration' (such as the duty not to inform). Practical and theoretical issues arise absent the recognition of these active positions of the involved parties. The question of normative evaluation of cases where a sizable amount of harm has come up on the patient as a result of the physician explaining to or informing the patient of his/her medical condition despite the patient previously waiving the Right to Consent or exempting the physician from the Duty to Inform, is one that is yet to be addressed; that of ascertaining direct evidence/legal basis that can cement legality to situations where the physician foregoes the informing process under consideration that doing so may cause harm to the patient, is another. Therefore it is the position of this paper that the Right [Not to Know] and the Duty [to Consideration] play critical roles both in meeting the legal normative requirements pertaining to the enrichment of the patient's Right to Self-Determination and the prevention of adverse effects as it pertains to the provision of [unwanted] medical information.

• The Korean Society of Law and Medicine
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• v.21 no.2
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• pp.37-73
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• 2020

Medical practice with medical adaptability is not illegal. Consent to medical practice is also not intended to exclude causes of Illegality. The patient's consent to medical practice is the exercise of the right to self-determination, and the patient's right to self-determination is take shape through the doctor's information. If a doctor violates his duty to inform, failure to inform or lack of inform constitutes an act of illegality of omission in itself. As a result, the legal interest of self-determination is violated. The patient has the right to know and make decisions on his or her own, even when it is not connected to the benefit of life and body as the subject of the body. If that infringed and lost, the non-property damage shall be recognized and the immaterial damage must be compensated. On the other hand, the violation of the duty of information does not belong to deny the compensation for physical damage. Which the legal interest violated by violation of the obligation to inform is the self-determination, and loss of opportunity of choice is recognized as ordinary damage. However, if the opportunity of choice was lost because of the infringement of the right to self-determination and the patient could not choice the better way, that dose not occur plainly bad results, under the prove of these causal relationship, that bad results could be compensated. But the unexpectable damage could not be compensated, because the physical damage is considered as the special damage due to the violation of the right of the self-determination.