• The Korean Society of Law and Medicine
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• v.20 no.2
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• pp.43-82
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• 2019

In Korea surrogate medical decision makings happen without legal grounds. The purpose of this article is to research the issues in preparing policies for decision-making on behalf of unrepresented patients. As aspects of comparative law, there are two approaches. One of them is to regulate default surrogate list. If no agent or guardian has been appointed, some legislatures provide that members of patient's family who is reasonably available, in descending order of priority of not, may act as surrogate: (1) the spouse, unless legally separated; (2) an adult child; (3) a parent; or (4) an adult brother or sister. If none of them is eligible to act as surrogate, some legislatures allow close friends to make health-care decisions for adult individuals who lack capacity. On the other hand there are other legislatures which provide no surrogate decision maker list but oblige the responsible authority to determine with advice of family members or friends of the patient. In the end the first approach can not guarantee that the surrogate decision maker like family members or friends will determine in the best interest of the patient.

• 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.

• The Korean Society of Law and Medicine
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• v.18 no.2
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• pp.3-46
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• 2017

Physician's Duty of Information is classified into three categories by legal function: 'Duty of Information to Report' to fulfill the patient's right to know; 'Duty of Information to Guide' patient's convalescing and staying healthy; 'Duty of Information to Contribute' to patient's self-determination. We classify the physician's duty of information because the legal effect from the breach of duty varies accordingly. The legal effect is focused on damage compensation responsibility for breach of duty. When a physician violates 'Duty of Information to Report', he subjects himself to liability of compensation for infringing on the patient's 'Right to Know'. When a physician violates 'Duty of Information to Guide', she subjects herself to liability for general medical malpractice. Finally, when a physician violates 'Duty of Information to Contribute', the physician is basically liable for violation of the patient's 'Right to Self- Determination' which refers to infringement on freedom of choice. However, in the case of situation that patient's refusal to the medical treatment would be presumed, the physician bears all liability for the patient's damage which includes both of property and mental damage.

• The Korean Society of Law and Medicine
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• v.16 no.1
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• pp.221-254
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• 2015

The amendment of the Korea Civil Code will take place July 1, 2013. One of the most import issues related to adult guardianship system is a part. Though more than 100 new provisions, the revised Civil Code fundamentally reformed the guardianship system to establish a system to meet the diverse and complex needs of those who need a guardian and ensure due process. The new adult guardianship system intended to respect dignity and human right of mentally incapacitated adults, to guaranee their autunomy and to minimize the public interventions for assisting them. The new guardianship system for vulnerable adult has three kinds of legal guardianship system (adult guardianship, limited guardianship and specific guardianship). Mental patients forced the hospitalization of the mental health code and will be treated as an agreement incapable person. In principle an agreement incapable person has capacity of consent. The consent of the mental patients are admitted first. It is advisable to medical care only by the consent of the guardian when the the mental patient do not agree ability. If the mental patient do not agree with the mentally ill, but there should be a supervisory capacity for a guardianship of the couple guardian supervision. In conclusion, it not lost the capacity to consent to inpatient mental illness called. Therefore, we must discuss in detail the scope of the agreement for the mental patients. Mental Health Act amendments are necessary in accordance with the amended Civil Code.

• The Korean Society of Law and Medicine
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• v.23 no.1
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• pp.37-80
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• 2022

By analyzing informed consent and the refusal of emergency medical treatment (called patient dumping) under the current Emergency Medical Service Act, this study suggests that an emergency medical professional is only liable for patient dumping if their duty to protect the patient's life takes precedence over the patient's right to self-determination. In emergency medical situations, as in general medical situations, medical treatment should be performed after the emergency medical professional informs the patient about the medical treatment, including its necessity and methods, and obtains consent from the patient. Refusing or evading the performance of emergency medical services on the excuse of the informed consent not considering a waiver or alteration of informed consent requirements without reasonable reasons violates the Emergency Medical Service Act and thus makes an emergency medical professional liable to administrative disposition or criminal penalty. In other words, depending on the existence of a waiver of alteration of the informed consent, patient dumping may be established. If the patient is a minor or has no decision-making ability, and their legal representative makes a decision against the patient's medical interests, the opinion of the legal representative is not unconditionally respected. A minor also has the right to decide over their body, and the decisions of their legal representatives should be in the patient's best interests. If the patient refuses treatment, in principle, the obligation of life protection of emergency medical professionals is the top priority. However, making these decisions in the aforementioned situations in the emergency medical field is difficult because of the absence of explicit regulations regarding these exceptional problems. This study aims to organize the following precedents of the Supreme Court of Korea. The court states that, when balancing the conflicting interests between the duty to provide emergency medical service and the duty to inform is unavoidable for emergency medical professionals, they should put the duty to protect the patient's life ahead of the duty to inform if the patient's life matters. Exceptionally, when a patient has seriously considered whether they should receive treatment before the emergency medical situation, their right to self-determination can be considered equal to the obligation of emergency medical professionals to provide emergency medical treatment. This research also suggests that an amendment of the Emergency Medical Service Act should include the following. First, the criteria for determining the decision-making ability of emergency patients should consist of medical content. Second, additional consent from a medical professional is unnecessary for first-aid treatment. Finally, new provisions for emergency medical obligations for minors, new provisions for the decision standard when there are conflicting opinions about the treatment of a patient, and new penalty provisions for professionals who suspend emergency medical examinations and treatments need to be established.

• The Korean Society of Law and Medicine
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• v.18 no.1
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• pp.3-35
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• 2017

The Supreme Court of Korea first admitted compensation for damages caused by breach of informed consent in 1979. From then on, specific details of informed consent are shaping up and developing through court precedents. The duty of informed consent of doctor is based on article 10 of the Constitution and medical contract, and is expressly prescribed Article 12 of Framework Act on Health and Medical Services and other acts and regulations. By the way, the regulations about duty of informed consent of doctor have been established in Medical Law revised on December 20, 2016, and the revised Medical Law will be implemented on June 21, 2017. According to the revised Medical Law, medical practices subject to description and consent are operation, blood transfusion and general anesthesia that threaten to cause serious harm to human life or to the body. When performing these medical activities, the written consent must be explained and agreed upon in advance. If a doctor violates the law, he will incur fines of less than 3 million won. Comparing and viewing the revised Medical Law and existing legal principles about the duty of informed consent, we can confirm that there is a substantial difference between the two parties. Accordingly, despite the implementation of the revised medical law, the existing legal principles are unlikely to be affected. However, from the perspective of legal uniformity and stability, it is undesirable that legal judgments on the same issues differ from each other. The revised Medical Law about informed consent needs to be reformed according to existing legal principles. And, as in the case of Germany, it is desirable to include the matters concerning informed consent in the civil code.

• The Korean Society of Law and Medicine
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• v.18 no.2
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• pp.105-138
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• 2017

This is case comments of several representative legal cases regarding self- determination right of patient. In a case in which an intoxicated patient attempted suicide refusing treatment, the Supreme Court ruled that the medical team's respect for the patient's decision was an act of malpractice, and that in particular medical situations (medical emergencies) the physician's duty to preserve life supersedes the patient's rights to autonomy. Afterwards, at the request of the patient's family, and considering the patient's condition (irrecoverable death stage, etc.) consistent with a persistent vegetative state, the Supreme Court deduced the patient's intention and decide to withdraw life-sustaining treatment. More recently, regarding patients who refuse blood transfusions or other necessary treatment due to religious beliefs, the Supreme Court established a standard of judgment that can be seen as conferring equal value to the physician's duty to respect patient autonomy and to preserve life. An empirical study of legal precedent with regard to cases in which the physician's duty to preserve life conflicts with the patient's autonomy, grounded in respect for human dignity, can reveal how the Court's perspective has reflected the role of the patient as a decision-making subject and ways of respecting autonomy in Korean society, and how the Court's stance has changed alongside changing societal beliefs. The Court has shifted from judging the right to life as the foremost value and prioritizing this over the patient's autonomy, to beginning to at least consider the patient's formally stated or deducible wishes when withholding or withdrawing treatment, and to considering exercises of self determination right based on religious belief or certain other justifications with informed refusal. This will have a substantial impact on medical community going forward, and provide implicit and explicit guidance for physicians who are practicing medicine within this environment.

• The Korean Society of Law and Medicine
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• v.22 no.4
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• pp.185-210
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• 2021

On September 24, 2021, the new provisions(Article 38-2 of the Medical Service Act) mandatory CCTV installation in operating rooms where the unconscious patient is operating such as general anesthesia. The revised medical law aims to effectively prevent illegal activities that may occur in the operating rooms and to promote appropriate resolution to medical dispute. According to the law, medical institutions operating unconscious patients, such as general anesthesia, must install CCTVs in the operating rooms by September 25, 2023, and film surgical scenes only at the request of patients and their guardians, regardless of the consent of the medical personnel. The bill delegated the legislative device to minimize infringement of fundamental rights to subordinate statutes without stipulating it in the law.(Article 38-2(10)) The most realistic policy plan to minimize the infringement of the fundamental rights of patients is to prepare specific regulations. Therefore, this study examines the legislative background and main contents of the amended CCTV installation bill, and suggests issues to be reviewed when preparing subordinate statutes by analyzing major issues. It was reviewed based on compliance with the principle of minimizing infringement of fundamental rights of information subjects in the operating rooms. The information subjects of CCTV are health professionals and patients. Suggesting issues should be considered when preparing subordinate statutes so that the purpose of the CCTV installation law can be achieved while minimizing infringement of right of self-determination of personal information, personality rights, and human rights. It is hoped that this paper will be referred when discussing subordinate statutes and regulations to contribute minimizing infringement of fundamental rights.

• 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.24 no.4
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• pp.37-63
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• 2023

In medical litigation, there are various cases where a doctor's 'explanation' of a patient becomes problematic. Medical explanations and guidance are required from the doctor, starting from the beginning of diagnosis, through treatment processes such as surgery, when hospitalization is necessary for treatment, during hospitalization, upon discharge, and after discharge. Furthermore, notification from the doctor or medical institution may be requested regarding the economic costs that will be incurred due to medical treatment. South Korea's judiciary has been developing legal principles regarding such doctor's explanations by distinguishing between explanations for obtaining consent for medical treatment and medical explanations related to guidance on patient treatment methods, taking into account related laws such as the stage of treatment and the Medical Service Act. Additionally, the Constitutional Court recently ruled on the non-benefit cost notification system linked to the explanation of economic costs. However, holding a doctor accountable solely because the doctor's explanation was insufficient has aspects that do not correspond to the actual situation in clinical reality, and may have a reflexive disadvantage that results in a decline in legal rights. Therefore, the doctor's explanation needs to be examined from both perspectives: guaranteeing the patient's right to self-determination and protecting his or her right to decision.