치매진단 고지와 설명 후 동의의 원칙

Notice of Dementia Diagnosis and Informed Consent - With Special Reference to the Discussions in Japan and the Implications in Korea -

This article reexamines a relationship between a doctor and a patient with special reference to the issues on notice of dementia illness and notice of cancer to family. Most discussions on the traditional medical practice recognize a relation between a doctor and a patient as a relation of the parties. However, in order to solve various problems which could occur to a doctor, a patient, or a family, traditional style discussions are not proper, but it needs to understand co-decision making among three parties, including patient, doctor, and authority(representative s governmental power for disciplining and controlling the treatment relation). Establishment of this relation exists by virtue of not being able to see them equal parties relation. Disciplining this unbalance, possibly occurred in the unequal relation, is authority, and this authority could be explained by legal principles for informed consent(legal principles for fiduciary relation). This legal principle would be established by the enlarged interpretation of trust and fiduciary relation between a doctor and a patient. Namely, because a patient trusts a doctor, and has a relation of delegating important and personal affairs like a body, the relation between the patient and the doctor could be interpreted as a relation of trust similarity. In that case, legal principles recognizing unbalanced relation between an expert, a doctor and a patient as trust or fiduciary relation, are logically available. Furthermore, a duty could be imposed on a trustee, doctor based on trust law. Therefore, a doctor is a person being trusted by a patient, namely, a fiduciary. The relation between a doctor and a patient is in a fiduciary relation, and if the relation is recognized as a fiduciary relation, in this relation, the doctor should ① protect the patient s medical information with the best of faith and diligence, and ② have a burden to open medical information to the patient appropriately. This legal principle appears on the relation with notice of dementia illness, and this burden of notice of illness is not only simply on a patient, but also a family and a representative in the precondition of special social contact relation.