의료행위에 있어서 의사의 설명의무와 미성년자의 동의능력 판단기준

Physician's Duty to Explain in Medical Practice and How to Determine a Minor's Capacity to Consent

The physician's duty of explanation is a procedure that requires a physician to explain the necessity and side effects of a medical procedure in detail before performing the medical procedure, and to allow the patient to choose whether or not to receive the medical procedure based on the patient's right to self-determination. Even minors are not only subjects of fundamental rights under the Constitution, but they are also capable of exercising their own rights as long as their decision-making capacity is recognized. In a recent Supreme Court ruling dated March 9, 2023, the court ruled that the obligation to explain medical treatment to an existing parent or legal representative can be fulfilled in a way that allows the medical treatment to be delivered to the minor through an ‘indirect explanation’ and that special circumstances must be examined in consideration of whether the minor has the decision-making capacity to understand and consent to the meaning of the medical treatment and the minor's active refusal. This means that even if a minor is a minor, he or she is the ultimate owner of his or her life, body, and health, and if he or she has the capacity to consent to medical treatment, the doctor is obligated to explain the medical treatment. However, it is difficult to clearly determine whether a minor has the capacity to consent to medical treatment, and there are special circumstances in which a doctor must explain and obtain consent directly from the minor. If a doctor is obligated to explain to a patient who is a minor with decision-making capacity, it should be the principle to explain directly to the patient, but before that, it seems necessary to establish the criteria for estimating the decision-making capacity of minors institutionally, and it is also necessary to consider whether direct explanation or interference is the best way to meet the welfare or best interests of the minor patient.