成年後見과 醫療行爲의 決定

Guardianship and Medical Decision for Mentally Handicapped Adult

&nbsp;&nbsp;In this paper, the writer analysed the system of a guardianship for the mentally handicapped adults, especially a guardian’s authority to consent to or refuse a medical treatment for his ward. The medical treatment, analysed here, includes ‘the artificial abortion,’ ‘the donation of human organ,’ ‘the medical experiment on human body’ and ‘the suspension of medical treatment’. In order to analyse these issues, the writer consulted Prof. M？ller’s paper commenting Section 1904 of German Civil Code(§1904 BGB), which is contained in the Kommentar BGB(2003) edited by Bamberger/Roth. The writer introduced the German argument about the general and special issues relating with the guardian’s medical decision for his ward who is a mentally handicapped adult. And then he presented his opinion about each issue.<BR>&nbsp;&nbsp;The writer manifested his opinion different with German predominant opinion relating with some of the general issues.<BR>&nbsp;&nbsp;The writer supported the German Law’s legislative attitude and purpose that the guardianship court’s permission is necessary before the guardian consents to the medical treatment serious or dangerous to his ward.<BR>&nbsp;&nbsp;The writer’s attitude against the artificial abortion is very firm, so that he did not agree with the suggestion introduced or supported by Prof. M？ller.<BR>&nbsp;&nbsp;As far as the donation of human organ is concerned, the Korean legislation is superior to that of Germany. The writer suggested only that it is necessary to introduce into the relating Korean act a new clause prohibiting the guardian from consenting to an operation for tearing off any organ from his ward’s body.<BR>&nbsp;&nbsp;The consent to the medical experiment on human body needs more detailed and circumstantial information for the consent to be valid. It should be noted that the consent to the medical experiment on the ward’s body could not be executed vicariously by the guardian without any therapeutic effect for the ward’s disease.<BR>&nbsp;&nbsp;It is the writer’s opinion that any medical treatment on a patient could be suspended only according to his own consent or intent. His consent or intent could be manifested in advanced or inferred subjectively or objectively even after he falls in to a coma. However anyone including his guardian can not consent the suspension vicariously, but can only help a physician infer the patient’s consent or intent.<BR>&nbsp;&nbsp;According to §1904 BGB, the guardianship court’s permission is not necessary in such a case that the process of obtaining the permission delays the urgent treatment and therefore endangers unreasonably the patient, even for the guardian’s consent to the medical treatment serious or dangerous to his ward. When such a process of the court’s permission is enacted in any Korean act, such an exemption clause should be included. It would be necessary for prevention against any defensive medicine.<BR>&nbsp;&nbsp;On the whole, the writer supported the legislative attitude of the rest clauses relating with the process of the court’s decision for the permission.