• 의료법학
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• 제9권1호
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• pp.413-459
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• 2008

The Law has intervened to define rare circumstances in which a person should choose continuing life in United States. On the one hand, the law has traditionally acted to preservelife and to respect the sanctity of life. On the other hand, one's control over one's own body, and the right to determine what kind of medical care one will receive, is equally well respected and historically grounded. The competent patients have the right to forgo life-sustaining treatment, courts in United States have left many unanswered questions about the nature of that right. The right to choose to forgo life-sustaining treatment is a manifestation of a patient's autonomy interest. In United States, The Karen Quilan case gave rise to legislative activity in the host of state capitals, and several states had adopted statutes that formally recognized some forms of written directives describing some circumstances in which certain kinds of medical care could be terminated. These statues were sometimes dominated 'living will' acts, sometimes 'right to die' acts and ocasionally 'natural death' acts. Today virtually every state has produced a living will statue. In Korea, courts do not permit a terminally ill person to withhold or withdraw life-sustaining treatment. Living wills apply in case of terminal illness owing to a defect in legislation. Now In Korea, these lively dispute of legal policy on the preconditions and concrete procedure of living will act and natural death act. Through the legislation of living will act and natural death act, we should prepare some circumstances to respect patient's autonomy on the right to die. We should frame the cultural standard to make a decision of forgoing life-sustainin1g treatment under the discreet procedure.

• 의료법학
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• 제11권2호
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• pp.239-274
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• 2010

Advance directive refers to a description of the treatment method a patient wants to be provided with in case where the person is unconscious or lacks an ability to decision making in a future period or a declaration of intention that delegates and appoints another person who makes a decision regarding a treatment method on behalf of the person. Advance directive is usually a document form, but oral statement is acceptable as well. Advance directive may have a variety of forms though, it basically consists of two basic forms. That is, one is a living will, and the other is a surrogate decision making. Though the importance of advance directive has been emphasized, and the necessity of adopting the system has been strongly argued for so far, the debates on criteria, method, and procedure alike have not yet reached an agreement. It is because even the concept of advance directive is more or less ambiguous, and each specific method has its own theoretical limitations and practical constraints. Thus the inquiries on advance directive raised in the study are summarized as the meaning, practicability, and philosophical foundation of the advance directive. Firstly, the theoretical limitations of Advance directive may be categorized into conceptual and moral limitations. In case of conceptual limitations, authors of advance directives may not be well aware, in advance, of the particular situation in which he or her will experience in the future, and patients may experience the change in his or her values and lack the understanding and information about the future situation due to the changes in treatment methods. In case of moral limitations, a patient has a limited moral autonomy right and self identity that have an impact on his or her preference. Secondly, in case of practical constraints for advance directive, there exist cultural features, low ratio of documentation, as patients themselves admit, and low predictability and stability of patient's own preference regarding life-sustaining care. And the problem of validity and accuracy in proxy's decision making is also raised. Those who administer a living will, especially, may have a difficulty in understanding the directive by a patient, so that the accuracy of execution cannot be secured. In the sense, it is needed to implement a legal device in order to solve such problems. In summary, it is urgently required to understand the limitations and explore desired alternatives to overcome the relevant problems in advance, which must contribute to successfully adopting and effectively operating the advance directive system in Korea.

• 의료법학
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• 제14권1호
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• pp.355-401
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• 2013

The first legislation for terminal health-care decision was California's Natural Death Act (NDA) of 1976 that permitted any adult person to execute a directive directing the withholding or withdrawal of life-sustaining procedures. Advance directive legislation has subsequently progressed on a state-by-state basis. By 1992, all 50 states, as well as the District of Columbia, had passed legislation to legalize some form of advance directive. This state legislation, however, has resulted in an often fragmented, incomplete, and sometimes inconsistent set of rules. Statutes enacted within a state often conflict and conflicts between statutes of different states are common. In an increasingly mobile society where an advance health-care directive given in one state must frequently be implemented in another, there is a need for greater uniformity. In 1993, the Uniform Law Commissioners approved the Uniform Health-Care Decisions Act (UHCDA) in order to bring order to the existing chaos. Unfortunately, the Commissioners waited too long to act. By the time the UHCDA was approved, nearly all states had passed legislation governing advance directives. Consequently, the UHCDA has achieved only a limited success, picking up but one or two enactments a year. The UHCDA is currently in effect in around 10 states: Alabama, Alaska, California, Delaware, Hawaii, Kansas, Maine, Mississippi, New Mexico, Tennessee, Wyoming. In these states the previous laws related to the subjects have been all repealed. The overall objective of the UHCDA is to encourage the making and enforcement of advance health care directives including living will or individual instruction, power of health-care attorney and to provide a means for making health care decisions for those who have failed to plan. The U. S. House of Representatives in 1991 enacted the Patient Self-Determination Act (PSDA). The Act stipulates that all hospitals receiving Medicaid or Medicare reimbursement must ascertain whether patients have or wish to have advance directives. The Patient Self- Determination Act does not create or legalize advance directives; rather it validates their existence in each of the states. Now in America, terminal health-care decision or advance directive for health care is common and universal system. The problem, however, is how to let more people use these good tools to make their lives more beautiful and honorable.

• 한국노년학
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• 제30권4호
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• pp.1197-1211
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• 2010

본 연구는 미래의 불확실한 상황이 발생했을 때를 대비하여 의식이 있을 때 임종기의 치료에 대한 선호도를 밝혀두는 사전의료지시서(Advance Directives) 모형 개발에 필요한 실증적 자료를 제공하기 위해 시도되었다. 6개 시·도에 거주하는 의료인(의사/간호사)과 일반성인 383명을 대상으로 AD 관련 실태와 무의미한 연명 치료에 대한 태도, AD 모형에 대한 인식과 선호도를 조사하였으며, 연구도구는 구조화된 설문지를 사용하였다. 수집한 자료는 SPSS 14.0을 이용하여 빈도분석과 백분율, χ² test, 평균과 표준편차를 구하였다. 연구결과 대부분의 의료인들은 심폐소생거부권(DNR order)과 AD에 대해서 알고 있었으며, 소수이기는 하지만 병원 내규나 서식을 통해 활용하고 있었다. 무의미한 연명치료에 대해서는 전체적으로 부정적인 인식을 가지고 있었으며, 대다수의 응답자들이 우리나라에 AD를 도입하는 것과 AD를 작성하는 것에 동의하였고, AD가 법적 효력을 갖는 것에 찬성하였다. AD를 작성하는 방법으로는 생전유언과 대리인 지정을 혼합하는 유형을 희망했고, 문서로 작성하는 것을 희망했다. 또한 AD를 작성하는 시기로는 말기질환으로 진단받았을 때를 가장 선호하는 것으로 나타났다. 본 연구결과를 토대로 우리나라 문화와 실정에 맞는 AD 모형을 제시하였다. 향후 연구에서는 AD 도입을 위해 사회적 합의를 이끌어 내기 위한 구체적인 방안이 논의 되어야 할 것이다.

• 기록학연구
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• 제72호
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• pp.165-203
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• 2022

많은 사람들이 디지털 공간에서 기록물을 생산하며, 개인이 사망한 뒤 남는 디지털 기록물의 양도 늘어났다. 그런데 고인이 남긴 디지털 기록은 물리적 실체를 가진 기록유산과 다르다. 고인의 기록이 고인만의 것이 아닌 경우도 많고, 고인이 생전에 온라인 계정과 디지털 기록 처리 방식을 밝히지 않는 경우도 많아, 이런 문제는 유족 등에 대한 상속의 문제로 이어지게 될 수도 있다. 또한 소프트웨어 문제, 특정 플랫폼의 이용약관, 유족에 의한 계정 삭제 등의 사유로 개인 사후 디지털 기록이 방치 또는 삭제될 수 있다. 이는 당시 사회상을 알 수 있는 중요한 단서가 되는 일상 기록이 쉽게 소실되는 문제로도 이어진다. 개인들이 본인의 디지털 기록 보존에 관심이 있지만 마땅한 방법을 몰라 소극적인 방임(benign neglect)을 하고 있음이 몇몇 연구를 통해 드러났다. 이 때문에 개인 디지털 기록과 개인 사후 디지털 기록에 관심을 기울이고, 관련 정책과 계획을 마련할 필요가 있다. 이에, 본 연구는 개인 사후 디지털 기록의 관리와 관련하여 법과 제도, 플랫폼과 산업의 현황 및 정책, 개인 기록관리 현황 등과 관련하여 문제점을 분석하고, 법의 제정 및 플랫폼 약관의 명시 필요성, 기록관리기관의 디지털 개인 기록 관리 방안, 개인의 사후 기록에 대한 선제적 관리방안 및 디지털 계정 정보 관련 유언장 작성 방법 등 다양한 해결방안을 제안하였다.

• 의료법학
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• 제10권2호
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• pp.309-341
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• 2009

According to a case of Supreme Court's Sentence No. 2009DA17417 (May 21, 2009), the Supreme Court judges that 'the right to life is the ultimate one of basic human rights stipulated in the Constitution, so it is required to very limitedly and conservatively determine whether to discontinue any medical practice on which patient's life depends directly.' In addition, the Supreme Court admits that 'only if a patient who comes to a fatal phase before death due to attack of any irreversible disease may execute his or her right of self-determination based on human respect and values and human right to pursue happiness, it is permissible to discontinue life-sustaining treatment for him or her, unless there is any special circumstance.' Furthermore, the Supreme Court finds that 'if a patient who is attacked by any irreversible disease informs medical personnel of his or her intention to agree on the refusal or discontinuance of life-sustaining treatment in advance of his or her potential irreversible loss of consciousness, it is justifiable that he or she already executes the right of self-determination according to prior medical instructions, unless there is any special circumstance where it is reasonably concluded that his or her physician is changed after prior medical instructions for him or her.' The Supreme Court also finds that 'if a patient remains at irreversible loss of consciousness without any prior medical instruction, he or she cannot express his or her intentions at all, so it is rational and complying with social norms to admit possibility of estimating his or her own intentions on withdrawal of life-sustaining treatment, provided that such a withdrawal of life-sustaining treatment meets his or her interests in view of his or her usual sense of values or beliefs and it is reasonably concluded that he or she could likely choose to discontinue life-sustaining treatment, even if he or she were given any chance to execute his or her right of self-determination.' This judgment is very significant in a sense that it suggests the reasonable orientation of solutions for issues posed concerning withdrawal of meaningless life-sustaining medical efforts. The issues concerning removal of medical instruments for meaningless life-sustaining treatment and discontinuance of such treatment in regard to medical treatment for terminal cases don't seem to be so much big deal when a patient has clear consciousness enough to express his or her intentions, but it counts that there is any issue regarding a patient who comes to irreversible loss of consciousness and cannot express his or her intentions. Therefore, it is required to develop an institutional instrument that allows relevant authority to estimate the scope of physician's medical duties for terminal patients as well as a patient's intentions to withdraw any meaningless treatment during his or her terminal phase involving loss of consciousness. However, Korean judicial authority has yet to clarify detailed cases where it is permissible to discontinue any life-sustaining treatment for a patient in accordance with his or her right of self-determination. In this context, it is inevitable and challenging to make better legislation to improve relevant systems concerning withdrawal of life-sustaining treatment. The State must assure the human basic rights for its citizens and needs to prepare a system to assure such basic rights through legislative efforts. In this sense, simply entrusting physician, patient or his or her family with any critical issue like the withdrawal of meaningless life-sustaining treatment, even without any reasonable standard established for such entrustment, means the neglect of official duties by the State. Nevertheless, this issue is not a matter that can be resolved simply by legislative efforts. In order for our society to accept judicial system for withdrawal of life-sustaining treatment, it is important to form a social consensus about this issue and also make proactive discussions on it from a variety of standpoints.