죽음을 대하는 현대의학의 태도 비판- 어네스트 베커의 실존주의 심리학의 관점에서

박중철 한국의철학회 2017 의철학연구 Vol.24 No.-

Since the solidarity of the traditional community has collapsed, deaths in modern society are proceeding with privatization, banalization, and medicalization. In particular, 75 percent of Koreans are dying in medical institutions today, so the death in hospitals has become a common occurrence. There is also a proliferation of medical futility in life-sustaining treatment, which is closely related to attitude of medicine toward death. Such attitude have several characteristics. First, the medical profession recognize death as a medical defeat, and they resist it through advanced technology. Second, such resistance is rationalizing through ‘Dogma’, such as ‘principles of ethics’ and ‘treatment guidelines’. This article analyze the medical futility relying on ‘technological possibility’ and ‘medical dogmas’ in perspective of ‘existentialist psychology’ which persist that Human beings overcome the fear of death through an attempt to be a hero. One of them, Ernest Becker, explained how human beings become heroes through the psychological mechanisms of ‘narcissism’ and ‘transference’. According to Becker, It is narcissism to regard one’s ability as basis of self-esteem, and transference is the identification by subjugate ones’ own self under superior groups or cultures. Modern medicine has depended on the technological narcissism, and subjugating under the dogmas(laws, principle of ethics, treatment guidelines) to preserve itself from the fear of death. Ultimately, these technicism and dogmatism have become the identity of modern medicine against inevitable death. This identity of medical practice ultimately justifies life-sustaining treatment by allowing it’s intervention to deprive patients’ sovereignty in their dying process. If the patient wants to refuse life-sustaining treatment, they should rely on the legal and ethical principles of the law. In this case, the death of a patient is because of its own abandonment, not because of medical failures. And medicine can preserve the identity which it have to struggle against death. Medicine now needs a new identity to protect its self-esteem without violating patients’ sovereignty over their dying process. In order to achieve this, it is necessary to move the goal of medical practice to helping the completion of life not artificial prolongation of life. Ultimately, this will serve as an opportunity for our society to renew the culture of death.

존엄사에 대한 미국의 법제

김장한 대한의료법학회 2008 의료법학 Vol.9 No.2

The end of life problem in the United States has been evolved from the development of concept of brain death over last 50 yr. The invention of ventilator and the development of emergency medicine also played a key role to elongate the end stage of life and which caused the American people to ask a question about the patients self determination and refusing the unwarranted medical treatment in the view of the death with dignity. With regard to the patient unable to self determination, surrogate decision was also considered. To guarantee the self determination, The patient self determination act also enacted on the level of Federal regulation in 1990s. But no law has effectively dealt with the situation when medical treatment became futile. Along with the significant debates on literature and court cases, The American Medical Association's Council on Medical and Judical Affairs presented formal opinion and the Texas was the first states to regulate the medical futile situation in 1999. Even though that definition was in controversy, the concept of medical futility mainly focused on the doctors' right to refuse the treatment.

생의 말기 의료의 중단 및 유보에 대한 윤리적 논란 과 임상 현실에 대한 윤리적, 법적 고찰

김명희,백수진 대한의사협회 2019 대한의사협회지 Vol.62 No.7

It is natural for all human beings to die; hence, death is an inevitable event. However, advances in medical technology are changing the meaning of natural death. These advanced treatments provide the capability to intervene at the time of death and to reshape the circumstances around natural death, by sustaining human life. However, it is extremely difficult to judge when treatment is futile for the patient’s best interests. It is therefore recommended to make time to discuss the concept of medical futility during the course of caring for a critically ill patient. Despite the expectations and efforts of the patient, the patient's family, and medical staff, the patient will eventually, have a 'hopeless' medical condition. Most discussions about decision-making in end-of-life treatment have neen ethical debates focused on the patient’s self-determination and best interest in the context of concepts such as euthanasia or death with dignity. However, such discussions are insufficient for resolving the wide variety of circumstances that occur in clinical settings. Instead, the various ethical dilemmas inherent to end-of-life care should be approached by educating medical teams, patients, and their families about how to recognize medical futility. Furthermore, it is important to optimize the balance between the rights of patients and the responsibility of physicians.

Evaluation of Prescribing Medications for Terminal Cancer Patients near Death: Essential or Futile

이혜란,이성윤,김도연 대한암학회 2013 Cancer Research and Treatment Vol.45 No.3

Purpose The purpose of this study is to evaluate the prescription of essential or futile medications for terminal cancer patients during their final admission. Materials and Methods We conducted a retrospective review of the medical charts of terminally ill cancer patients admitted to the Hemato-oncology Department of two teaching hospitals from March 1, 2007 to December 31, 2009. Essential medications were based on the drugs listed by the International Association for Hospice and Palliative Care, while futile medications were defined when short-term benefit to patients with respect to survival, quality of life, or symptom control was not anticipated. Results A total of 196 patients were included. Among essential medications, strong opioids were the most frequently prescribed drugs during the last admission (62.2% fentanyl,44.3% morphine), followed by megestrol (46.0%), and metoclopramide (37.2%); 51%of gastric protectors were prescribed with potential futility. Anti-hypertensive and antiglycemic agents were administered to those who experienced arterial blood pressure below 90 mm Hg (47.3%) or presented with a single measurement of fasting glucose below 50 mg/dL (10.7%), respectively. Statins were prescribed to 6.1% (12/196) of patients, and 75% of those prescriptions were regarded as futile. Conclusion Our data suggest that effective prescription of essential medications and withdrawal from futile medications should be actively reconciled for improvement of a patient’s end-of-life care.

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).

의학적 무의미함의 윤리적 판단기준의 숙고와 실천적 함의

조은진,김상희 한국생명윤리학회 2022 생명윤리 Vol.23 No.1

Currently, our medical field has developed medical knowledge and technology to prolong the life of patients, but it has limitations that are seen as conflicts for life-determination between healthcare providers and patients/surrogate. In this regard, there are differences in views on life extension between healthcare providers and patients/surrogate, and the concept of medical futility is often used to justify each other without narrowing. Medical futility means that medical treatment available to patients will no longer improve the patient's medical situation and that medically proposed treatment should not be performed, but medical futility is still ethically controversial because it is judged by differences in their positions. It is difficult to agree on medical futility in various medical situations, and there is often a serious discrepancy between healthcare providers, patients, and patient families about the benefits of continuous treatment to patients. However, rather than sticking to a sharp confrontation from their respective positions on medical futility, medical futility needs to move toward a strategy that optimizes decision-making between healthcare providers and patients/surrogate. In this paper, the definition and issues of medical futility up to now are discussed, and ethical criteria for medical futility are considered and discussed for a practical approach in the medical field.

거버넌스관점에서 무의미한 연명치료중단의 문제점과 합리화방안에 관한 고찰

전수영(JEON, Su-Young) 강원대학교 비교법학연구소 2015 江原法學 Vol.45 No.-

인간의 생명이 회생가능성이 없는 상태에서 별다른 인간성의 지표 없이 단지 기계장치에 의하여 무의미한 치료를 계속하고 있는 상황이라면 헌법이 보장하는 자기결정권에 근거하여 구체적인 사정에 따라 연명치료의 중단을 요구할 수 있고, 그 경우 연명치료를 행하는 의사는 환자의 자기결정권에 근거한 무의미한 연명치료의 중단 요구를 존중하여야 할 것이다. 하지만, 환자의 요청에 의한 의료인의 연명치료중단 행위가 현행 형법에 의하여 촉탁승낙의 살인에 해당하는 행위로 금지되어 있는 상황에서는 보라매 병원 사건 이후 일어난 현상처럼 중환자실에서 임종할 때까지 연명치료 장치를 부착하고 이를 떼어내지도 못하는 상태로 유지할 수밖에 없는 실정이다. 세브란스 김 할머니 사건과 같이 법원에 인공호흡기 제거 청구소송을 제기하여 법원에 의한 판결로서 매번 치료중단이 허용되는 상황을 지켜보는 수밖에 없다. 하지만, 개개의 사례들을 모두 소송사건화하여 일일이 법원의 판단을 받게 하는 것도 비현실적이라고 할 수 있다. 우리나라의 경우 2014년 만성질환으로 사망한 사람들 중 인공호흡기를 적용한 비율이 16.5%나 많으면서, 다른 한편에서는 인공호흡기 적용의 유보 혹은 중단이 법적 뒷받침 없이 83.5%의 말기환자에서 이루어지고 있다는 현실에 비추어 볼 때 연명치료중단은 철저하게 환자의 자기결정권이라는 기본권실현관점에서 법제화의 논의가 이루어져야 한다. 어떠한 경우에도 자살권이라는 죽을 권리가 인정될 수는 없지만, 한정된 범위 내에서 자연사할 권리, 존엄하게 죽음을 선택하고 결정할 권리라는 범주 내에서 연명치료의 중단을 요청할 권리는 헌법적 근거를 가진다고 볼수 있다. 인공호흡기 청구사건의 대법원 판결이 이를 인정하면서 기본권 차원에서의 헌법적 근거를 가지게 되었다. 헌법적 근거를 가졌다고 하여 문제해결이 전적으로 이루어진 것은 아니므로 그 다음의 단계로 절차와 방법론의 문제로서 법제화의 구체화 작업이 필요하다고 본다. 이에 본 논문은 2013.5.국가생명윤리위원회의 ‘연명의료 결정에 관한 권고안’과 신상진 의원이 발의한 2015.6.9. ‘존엄사법안’을 검토하여 거버넌스관점에서 문제되고 있는 무의미한 연명치료중단의 문제점과 합리화방안에 대해서 모색해보고자 한다. Medical Practice can be justified when there are medical indication and the consent of patient. According to the Medical Act Article 15 ①,the doctor can’t reject the practice when patient request, if there is no justifiable reason. Most scholars agree that some types of euthanasia can be justifiable. Some argue that the patient voluntarily request euthanasia, their is no treatment method, and the pain is unbearable, the nearness of death, etc. Others argue that the consent to euthanasia, is the major requirement. The concept of medical futility is similar to euthanasia, but it is different notion. When the medical treatment is futile is decided based on the medical indication. So the range of medical futility is broader than euthanasia. While doctors have an ethical and regal responsibility to respect an autonomous patient’s wish for life-prolonging treatment there is a consensus among the professionals that this imperative should be bounded by the medical indication. The concept of medical futility is premised on an idea that if there is no medical indication, the doctor has no duty to treatment. In other words, when further intervention to prolong the life of a patient becomes futile, physicians have an obligation to shift the intent of care toward comfort and closure. In that case, the doctor is not punished because of the non- treatment or stopping the life-prolonging treatment. Even Though we can agree the concept of the medical futility, it is necessary to consider the wish of the patient. So the doctor can stop the treatment when there is no medical indication(medically futile) and the consent of the patient to stop the life- prolonging treatment. If we agree the two element of medical futility, which is not punished, this concept of medical futility can satisfy the principle of respect to autonomy and principle of justice. If we cannot obtain the consent of patient because of the lack of the ability to consent, the third party should decide for the patient whether the treatment may stop or not. The court, the IRB(Institution Review Board)of the hospital or ethical committee of the hospital can be the third party which decide the stop of treatment. When they decide that, they should seriously consider the patient’s value system or wishes which were expressed when he has the ability to express.

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.

응급의료 윤리에 대한 인식 조사

차지훈,김미란,김양원,전병민 대한응급의학회 2007 대한응급의학회지 Vol.18 No.6

Purpose: Ethical problems are common in the emergency department (ED)- much more common than is usually recognized. However, the difficult ethical dilemmas and unique aspects of ethics in emergency medicine have not been thoroughly discussed in the context of Korean emergency medicine. The purpose of this study is to evaluate the degree of general recognition of emergency medical ethics, as well as attitude toward several difficult ethical dilemmas among emergency physicians. Methods: This is a qualitative study by survey. By using a questionnaire, we surveyed on emergency physicians working in teaching- hospitals in Korea in August 2007. Results: The survey response rate was 30%, and there were 192 total respondents to the questionnaire. The results are as follows. Eighty-one percent of respondents said that they had trouble with difficult ethical dilemmas, 74% of respondents said that they need to be educated or trained to improve ethical decision-making capacity, and 58% of respondents said that they will use emergency ethical guideline actively if they are established. The ethical values that emergency physicians must possess, according to the survey responses, are agility, a sense of vocation, and prudence. With respect to questions about ending a patient’s life, we found that emergency physicians have a tendency to ignore a patient’s desires not to start CPR. Finally, in relation to colleagues and other professionals, many respondents said that they will take action to correct their medical errors. Conclusion: Study and development of emergency medical ethics will be greatly helpful to many emergency physicians. Further study and discussion must be pursued in order to establish ethical guideline.

사전의료의향서

이영규 한양대학교 법학연구소 2017 법학논총 Vol.34 No.4

On February 3, 2016, by prescribing necessary matters for patient's life-prolonging medical treatment and interruption of synonym medicine such as interruption of medical treatment, and ensuring the necessary matters for its implementation, we respect patient's self-determination and respect as self 「Act on decisions on life-sustaining treatment for patients in hospice and palliative care or at the end of life」 was enacted 2017.8.4 for the purpose of protecting the dignity and value of human being. With the remarkable development of today's medical science, it became possible to survive life artificially even if severe or unconscious patients who could not have sustained life could not be treated to improve symptoms.As a matter of principle, it is difficult for a decision to stop these prolonged-life medical treatments justifying themselves apart from the self-determination rights of the patient himselfAdvanced Directive is noticed as a way to guarantee self-determination of patients who can not make their own decisions. In this paper, we examined the advance directives of the United States and Germany. In Ⅳ, we examined the content, problems, and remedies of the Advanced Directive under the 「Act on decisions on life-sustaining treatment for patients in hospice and palliative care or at the end of life」 In V, I examined whether it could be applied to emergency medical service, hospitalization by a person obliged to protect mental illness, transplantation of organs, adult guardianship, etc. In this paper, the medical instruction form in advance was designed to make it possible to exercise self-determination right of the patient even if the doctor's ability is absent and it becomes impossible to exercise self-determination right , We believe it is desirable to broaden the scope of its application. In the future revision, we believe that it is reasonable to prescribe in the Civil Code as in the case of Germany. 2016. 2. 3. 환자의 연명의료와 연명의료중단등결정 및 그 이행에 필요한 사항을 규정함으로써 환자의 최선의 이익을 보장하고 자기결정을 존중하여 인간으로서의 존엄과 가치를 보호하는 것을 목적으로 「호스피스·완화의료 및 임종과정에 있는 환자의 연명의료결정에 관한 법률」이 제정되어 2017. 8. 4. 시행되고 있다. 오늘날 의학의 눈부신 발전으로 이전이라면 생명을 유지하지 못했을 중증환자, 의식불명의 환자라도 증상을 개선하는 치료는 못하더라도 인공적으로 생명만을 연명하는 것은 가능하게 되었다. 이러한 연명의료를 중단하는 결정은 원칙적으로 환자 본인의 자기결정권을 떠나서는 정당화하기 어렵다. 자기결정을 할 수 없는 환자의 자기결정권을 보장해주는 한 방안으로 사전의료지시서가 주목된다. 본 논문에서는 미국과 독일의 사전의료지시서에 대해 살펴보고, Ⅳ에서는 연명의료법상의 사전연명의료의향서에 대해 그 내용, 문제점, 개선방안에 대해 살펴보았다. Ⅴ에서 연명의료 이외에 응급의료, 정신질환자의 보호의무자에 의한 입원, 장기이식, 성년후견 등에서 적용할 수 있는지를 검토하였다. 본 논문에서는 사전의료지시서가 환자 본인의 자기결정권을 의사능력이 없어서 자기결정권을 행사할 수 없게 된 경우에도 행사할 수 있게 하는 한 방안으로 고안된 것으로 그 적용범위를 가능하면 넓히는 것이 바람직하다고 생각한다. 앞으로 개정시에는 독일의 경우처럼 민법에서 규정하는 것이 타당하다고 생각한다.