무의미한 연명치료 중단을 위한 제 요건 - 서울고등법원 2009. 2. 10, 2008나116869판결을 중심으로 -

문성제 한국의료법학회 2009 한국의료법학회지 Vol.17 No.1

무의미한 연명의료의 중단과 존엄사의 제 문제

문성제 법조협회 2009 法曹 Vol.58 No.6

Modern medicine started from struggles for overcoming a variety of incurable diseases and has made steady and successful efforts to liberate human being from suffering of diseases, but involves unprecedented side effects as well, including those related to holistic medicine primarily for terminal diseases. On the one hand, the advancement of medical science and technologies has its own implications in a sense that it contributed to prolonging the life of patients. On the other hand, physical and mental pain patients feel has robbed terminal patients of even their own dignity. In this context, patients' self-determination right for death of dignity is to give a chance to terminal patients to opt for liberate themselves from overplus of pain. And this study focuses primarily on discussing how to resolve potential conflicts concerned with those issues of life. In order to respect the self-determination of patients, American judicial precedents and legislation has permitted patients' right to deny any medical treatment for prolonging life, i.e. passive euthanasia(easy death) since 1970's, to the certain extent allowable legally. In particular, Oregon Death with Dignity Act has acknowledged that terminal patients may commit physician-assisted suicide. Such a physician-assisted suicide of patients becomes a new way of death which has been never discussed in terms of active euthanasia since 1990's. Unlike passive euthanasia in which physician administers lethal dose of medicine to a patient for the purpose of his death, the active euthanasia is a mean for patients to use such lethal dose of medicine as prescribed by physician at their option for suicide. Crucial difference between active and passive euthanasia can be determined by whether ultimate behavior causing death of a patient is committed by physician or the patient himself. Thus, it is found that active euthanasia has faced relatively low objections against legitimation of physician-assisted suicide of patients in a sense that ultimate behavior to cause death of a patient is attributed to the patient himself, so it is easier for active euthanasia to attribute the death of a patient to his own responsibility than passive euthanasia, and the former also has relatively low risk of misuse or abuse in comparison with the latter. In reality, it is obvious that physician-assisted suicide of patients is an issue unacceptable among the public, since physician's behavior for active euthanasia may face other legal responsibilities such as aiding and abetting suicide as provided in criminal law. However, there have been proposed needs for exemption from any legal responsibility for physician-assisted suicide of terminal patients in respect of their self-determination right, as mentioned above. In order reflect such needs and perspectives on local legislation, the Oregon state(USA) has newly established and enforced the Oregon Death with Dignity Act. The ultimate purpose of this study is to address historical backgrounds concerned with legislation of the Oregon Death with Dignity Act as well as major legal contents in said act to examine the issues about death of dignity, which may be pointed out in terms of hospice medicine in the future, and thereby consider potential problems concerned with death of dignity. 서울서부지방법원 2008가합6977사건 판결에서 무의미한 연명의료장치의 제거를 청구한 원고들의 주장을 받아들임으로써 무의미한 연명의료와 관련된 소극적 안락사에 대한 사회적 논의를 야기하였다. 현대 의료기술의 발전은 치유 불가능한 말기환자들에게 있어 생명연장이 가능하게 되었다는 점에서는 큰 의미를 부여할 수 있으나, 연명만을 위한 무의미한 의료를 통하여 환자들이 받는 육체적·정신적인 고통은 생명연장의 기쁨보다 인간으로서 존엄마저 상실시킬 수 있음이 지적됨에 따라, 환자들에게 스스로 고통으로부터 해방할 수 있는 선택권을 부여해야 한다는 주장이 제기되기에 이르렀는데 이것이 바로 소극적 안락사와 존엄사의 제 문제이다. 제 외국의 경우 치유 불가능한 말기환자에 대하여 치료중단으로 인한 소극적 안락사를 인정하려는 추세이며, 존엄사는 유일하게 미국 오리건 주에서 존엄사법을 제정하여 시행하고 있다. 우리나라 2008가합6977 판결은 무의미하게 연명만을 위한 의료에서 나타나는 문제에 대한 해결의 대한 방향성을 제시하였다는 점에서 매우 의미 있는 판결이다. 그러나 본 판결이 우리 사회에서 보다 설득력을 갖기 위해서는 의료와 환자의 자기결정권의 갈등의 문제를 어떻게 조화시키느냐에 따라 그 방향성이 정해질 것으로 본다. 이 같은 문제의식을 가지고 본 연구는 치유 불가능한 환자와 의료상의 제 문제를 중심으로 무의미한 연명의료장치의 제거와 환자의 자기결정 및 의사표시에 관한 제반문제를 검토하고 미국 오리건 주의 존엄사법의 주요 내용과 그 이후의 동향을 살펴보았다.

무의미한 연명의료의 중단과 존엄사의 제 문제

문성체 ( Seong Jea Moon ) 법조협회 2009 法曹 Vol.58 No.6

Modern medicine started from struggles for overcoming a variety of incurable diseases and has made steady and successful efforts to liberate human being from suffering of diseases, but involves unprecedented side effects as well, including those related to holistic medicine primarily for terminal diseases. On the one hand, the advancement of medical science and technologies has its own implications in a sense that it contributed to prolonging the life of patients. On the other hand, physical and mental pain patients feel has robbed terminal patients of even their own dignity. In this context, patients` self-determination right for death of dignity is to give a chance to terminal patients to opt for liberate themselves from overplus of pain. And this study focuses primarily on discussing how to resolve potential conflicts concerned with those issues of life. In order to respect the self-determination of patients, American judicial precedents and legislation has permitted patients` right to deny any medical treatment for prolonging life, i.e. passive euthanasia(easy death) since 1970`s, to the certain extent allowable legally. In particular, Oregon Death with Dignity Act has acknowledged that terminal patients may commit physician-assisted suicide. Such a physician-assisted suicide of patients becomes a new way of death which has been never discussed in terms of active euthanasia since 1990`s. Unlike passive euthanasia in which physician administers lethal dose of medicine to a patient for the purpose of his death, the active euthanasia is a mean for patients to use such lethal dose of medicine as prescribed by physician at their option for suicide. Crucial difference between active and passive euthanasia can be determined by whether ultimate behavior causing death of a patient is committed by physician or the patient himself. Thus, it is found that active euthanasia has faced relatively low objections against legitimation of physician-assisted suicide of patients in a sense that ultimate behavior to cause death of a patient is attributed to the patient himself, so it is easier for active euthanasia to attribute the death of a patient to his own responsibility than passive euthanasia, and the former also has relatively low risk of misuse or abuse in comparison with the latter. In reality, it is obvious that physician-assisted suicide of patients is an issue unacceptable among the public, since physician`s behavior for active euthanasia may face other legal responsibilities such as aiding and abetting suicide as provided in criminal law. However, there have been proposed needs for exemption from any legal responsibility for physician-assisted suicide of terminal patients in respect of their self-determination right, as mentioned above. In order reflect such needs and perspectives on local legislation, the Oregon state(USA) has newly established and enforced the Oregon Death with Dignity Act. The ultimate purpose of this study is to address historical backgrounds concerned with legislation of the Oregon Death with Dignity Act as well as major legal contents in said act to examine the issues about death of dignity, which may be pointed out in terms of hospice medicine in the future, and thereby consider potential problems concerned with death of dignity.