• The Korean Society of Law and Medicine
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• v.15 no.1
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• pp.303-333
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• 2014

The right to self-determination in regard to one's body is a key element of human dignity, privacy and freedom. It is constitutionally enshrined in the guarantee of human dignity, in the general right of personality and, most concretely of all, in the right to physical integrity. In principle No-one may trespass another person's body against his will, whether this act improves his physical condition or not. This right of self-determination applies equally to healthy and to sick people. Hence everyone has the right either to permit or to refuse a medical treatment, unless he can not make a rational decision. If the person does not consent himself, for whatever reason, another one must do for him as guardian. Representation in consent to medical treatment is therefore the exception of self-determination rule. This article explored, 1. who can consent to the medical treatment in the case of the mentally incapacitated adult and the infant, 2. what kind of consent to the medical treatment can the deputy determinate for the mentally incapacitated adult and the infant, 3. when the deputy can not determinate without permission of the court, and 4. what can the doctor do in the case of conflict between minors and guardians.

• The Korean Society of Law and Medicine
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• v.23 no.1
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• pp.37-80
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• 2022

By analyzing informed consent and the refusal of emergency medical treatment (called patient dumping) under the current Emergency Medical Service Act, this study suggests that an emergency medical professional is only liable for patient dumping if their duty to protect the patient's life takes precedence over the patient's right to self-determination. In emergency medical situations, as in general medical situations, medical treatment should be performed after the emergency medical professional informs the patient about the medical treatment, including its necessity and methods, and obtains consent from the patient. Refusing or evading the performance of emergency medical services on the excuse of the informed consent not considering a waiver or alteration of informed consent requirements without reasonable reasons violates the Emergency Medical Service Act and thus makes an emergency medical professional liable to administrative disposition or criminal penalty. In other words, depending on the existence of a waiver of alteration of the informed consent, patient dumping may be established. If the patient is a minor or has no decision-making ability, and their legal representative makes a decision against the patient's medical interests, the opinion of the legal representative is not unconditionally respected. A minor also has the right to decide over their body, and the decisions of their legal representatives should be in the patient's best interests. If the patient refuses treatment, in principle, the obligation of life protection of emergency medical professionals is the top priority. However, making these decisions in the aforementioned situations in the emergency medical field is difficult because of the absence of explicit regulations regarding these exceptional problems. This study aims to organize the following precedents of the Supreme Court of Korea. The court states that, when balancing the conflicting interests between the duty to provide emergency medical service and the duty to inform is unavoidable for emergency medical professionals, they should put the duty to protect the patient's life ahead of the duty to inform if the patient's life matters. Exceptionally, when a patient has seriously considered whether they should receive treatment before the emergency medical situation, their right to self-determination can be considered equal to the obligation of emergency medical professionals to provide emergency medical treatment. This research also suggests that an amendment of the Emergency Medical Service Act should include the following. First, the criteria for determining the decision-making ability of emergency patients should consist of medical content. Second, additional consent from a medical professional is unnecessary for first-aid treatment. Finally, new provisions for emergency medical obligations for minors, new provisions for the decision standard when there are conflicting opinions about the treatment of a patient, and new penalty provisions for professionals who suspend emergency medical examinations and treatments need to be established.

• The Korean Society of Law and Medicine
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• v.13 no.1
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• pp.249-293
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• 2012

Inter-hospital transfer, depending on its medical and legal appropriateness, affect the prognosis of patients and can even lead to legal disputes. As Emergency Medical Service Act, any physician shall, in case where deemed that pertinent medical service is unavailable for such patient with the capacities of the relevant medical institution, transfer without delay such patient to another medical institution where a pertinent medical service is available. For medico-legally appropriate inter-hospital transfer, the head of a medical institution shall, in case where he transfers an emergency patient provide medical instruments and manpower required for a safe transfer of the emergency patient, and furnish the medical records necessary for a medical examination at the medical institution in receipt of such patient. And transfer process must comply with the requirements prescribed by executive rule such as attachment of the referral, provision of ambulance, fellow riders and informed consent of transfer. Those engaged in emergency medical service shall explain an emergency medical service to an emergency patient and secure his consent. In addition to the duty to inform about emergency medical service to the patient and his or her legally representative, there is also a duty for doctors to sufficiently explain to the patient and his or her legally representative during inter-hospital transfer that the need for the transfer, the medical conditions of the patient to be transferred and emergency treatment that will be provided by the hospital from which the patient is going to transferred. Likewise, the hospital to which the patient is transferred must be thoroughly informed about matters such as the patient's conditions, the treatment the patient was given and reasons for transfer by transferring doctors.

• The Korean Society of Law and Medicine
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• v.16 no.2
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• pp.3-26
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• 2015

Recently, Practicing of ghost surgery and duty of informed consent of doctors have become a big issue in the medical dispute and lawsuits. The ground of admitting the informed consent and the agreement(self-determination of patients) can be based on the dignity of man and the right to pursue his happiness guaranteed under Article 10 of the constitution in theory. However there are no explicit legal regulations on the duty of the informed consent and there is no substantive legal enactment on the informed consent, but there is a collision between self-determination of patients and the discretionary power of doctors. If the discretionary power on the duty of the informed consent was extended it may result in the infringement of the right of surgical patients, so called arbitrary medical treatment. Relating to this issue, New Jersey Supreme Court held that a patient has the right to determine not only whether surgery is to be performed on him, but also who shall perform it. Moreover it held that a surgeon who operates without the patient's consent engages in the unauthorized touching of another and, thus, commits a battery'. But there are no ghost surgery cases adopting battery theory in Korea, and professional negligence has been considered rather than the battery, regarding an absence of hostile intent to injure patient. Supreme Court of Korea held that a doctor who operates a medical procedure without the patient's valid prior consent based on wrong diagnosis commits professional negligence resulting in injury, and the patient's invalid consent do not preclude wrongfulness'. However, if a health care provider conducts a completely non-consensual treatment or substitute surgeon without consent, the action should be plead in battery, not negligence, but if a health care provider violate his duty of care in obtaining the consent of the patient by failing to disclosure all relevant information (risks) that a reasonable person would deem significant in making a decision to have the procedure, the action should be plead in negligence, not battery. Therefore, the scope of patients' self-determination can be protected by stating clearly the scope of the duty of the informed consent and the exemption of the informed consent legislatively, it is considered that it is valid to legislate the limitation of the discretionary power.

• Journal of Korean society of Dental Hygiene
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• v.15 no.5
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• pp.881-887
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• 2015

Objectives: The purpose of the study was to investigate the awareness toward the informed consent in the dental hygienists and the patients before treatment. Methods: A self-reported questionnaire was completed by 200 dental hygienists and 200 dental patients in Changwon after explaining the purpose of the study from June 15 to September 15, 2014. The questionnaire was developed as two types for the dental hygienists and the patients. The questionnaire consisted of general characteristics of the subjects, awareness toward the informed consent before treatment, and experience before the treatment. Results: In the necessity of informed consent, 49.5% of dental hygienists and 72.0% of the patients answered that informed consent is very necessary. In the written informed consent, 33.3% of dental hygienists and 54.9% of the patients answered that the dispute can always happen during treatment. Conclusions: The informed consent is recognized as a defensive means for medical malpractice. For the sake of the dental hygienists and the patients, mutual respect and compromise is the very important factor.

• Journal of Korean Neurosurgical Society
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• v.60 no.4
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• pp.385-390
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• 2017

The doctrine of informed consent, as opposed to medical paternalism, is intended to facilitate patient autonomy by allowing patient participation in the medical decision-making process. However, regrettably, the surgical informed consent (SIC) process is invariably underestimated and reduced to a documentary procedure to protect physicians from legal liability. Moreover, residents are rarely trained in the clinical and communicative skills required for the SIC process. Accordingly, to increase professional awareness of the SIC process, a brief history and introduction to the current elements of SIC, the obstacles to patient autonomy and SIC, benefits and drawbacks of SIC, planning of an optimal SIC process, and its application to cases of an unruptured intracranial aneurysm are all presented. Optimal informed consent process can provide patients with a good comprehension of their disease and treatment, augmented autonomy, a strong therapeutic alliance with their doctors, and psychological defenses for coping with stressful surgical circumstances.

• The Korean Society of Law and Medicine
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• v.5 no.2
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• pp.294-319
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• 2004

Because the treatment of a physician generally pertains to the intrusion into body of a patient, his/her consent is a must in order for such conduct to be justifiable. To ensure effective consent of a patient, the physician should fully inform him/her of kind and details of the disease and way of treatment and risks associated with it. The patient can, then, make a decision whether he/she should accept any treatment or operation, if necessary, on the basis of such information. The obligation of physicians to explain has since long been recognized as important in view of guaranteeing the rights of patients for self-decision and protecting them from arbitrary assessment of physicians for treatment. Progress has been made in this respect even to the extent that physicians treat patients on equal terms and think first of all much of establishing trustworthy relationships with patients. Lots of studies in Korea and foreign countries have tried to explore the issues concerning the obligation of physicians to explain in the meantime but seem to have failed to make concrete and versatile approaches from the standpoint of protecting the rights of patients. Wouldn't it be really possible for patients to perceive their own rights and cope actively with the medical treatments? If physicians have full understanding to the rights of patients, they will be put in a better situation to protect themselves and patients, in turn, can identify their own responsibility correctly, which will eventually contribute to fulfilling the goal of treatment. With this background, the present paper examines briefly the obligations of physicians for explanation based mainly on the preceding theories and judicial precedents in the first place and then deals with the status quo and contents of the German medical laws, with a focus on the treaty of European Law 1997 and its working document on the applications of genetics for health purposes that stipulate the detailed criteria on the medical treatment and rights of patients and Germany's $\ulcorner$Charter of Rights for Patients$\lrcorner$ promulgated in 2003.

• The Korean Society of Law and Medicine
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• v.10 no.1
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• pp.389-420
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• 2009

Main Issue of Supreme Court Decision 2005Da16713 Delivered on June 24, 2005 is about the duty of medical care in the interhospital transfer of patients. According to the above Supreme Court Decision, in the interhospital transfer of patients, the decision to transfer should make from the aspect of medical treatment. The hospitals and doctors keep the duty of medical care. In addition to the duty for hospitals/doctors to check the capacity and availability of the hospital to which the patient is transferred, there are also duties to inform about emergency medical service and to sufficiently explain the need for the transfer, the medical conditions of the patient to be transferred and the hospital from which the patient is transferred. The hospital to which the patient is transferred must be thoroughly informed about matters such as the patient's conditions, the treatment the patient was given and reasons for transfer. including information upon referral, completeness of medical records, patient monitoring and so on. The interhospital transfer requires the consent of doctor belonging to the hospital to which the patient is transferred after the consideration of capacity and availability of the hospital and the informed consent of patients or legal representatives.

• The Korean Society of Law and Medicine
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• v.21 no.1
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• pp.3-32
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• 2020

Under the Korean case law, physicians are obliged to disclose or inform the risk associated with a specific treatment to their patients before they perform the treatment. If they fail to do this, they are liable to compensate pain and sufferings. If the patient can establish that he or she would not have consented at all to the treatment had he or she been informed, the physicians are liable to compensate all the loss incurred by the treatment. In this article, the author examines the legitimacy of this case law from the perspective of legal doctrine as well as its practical affect on the medical practice and the furtherance of self-determination of the patient. The fundamental findings are as follows: The case law that has physicians who failed to inform treatment risk compensate pain and sufferings for the infringement of the right of self-determination seems to be a disguised and reduced compensation of all the loss based on the possible malpractice, which cannot be justified in view of the general principles of tort liability. It is necessary to adhere to the requirements of causation and imputation between the failure to inform treatment risk and the specific patient's consent to the treatment. If this causation and imputation is established, all the loss should be compensated. Otherwise, there shall be no liability. The so-called hypothetical consent defence shall be regarded as a part of causation between the failure to inform and the consent. The suggested approach can preserve the essence of physician-patient relationship and fit for the very logic of informed consent better.

• KSII Transactions on Internet and Information Systems (TIIS)
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• v.15 no.12
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• pp.4400-4419
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• 2021

In the 4th Industrial Revolution, the healthcare industry is undergoing a paradigm shift from post-care and management systems based on diagnosis and treatment to disease prevention and management based on personal precision medicine. To optimize medical services for individual patients, an open ecosystem for the healthcare industry that allows the exchange and utilization of personal health records (PHRs) is required. However, under the current system of hospital-centered data management, it is difficult to implement the linking and sharing of PHRs in practice. To address this problem, in this study, we present the design and implementation of a patient-centered PHR platform using blockchain technology. This platform achieved transparency and reliability in information management by eliminating the risk of leakage and tampering/altering personal information, which could occur when using a PHR. In addition, the patient-consent system was applied to a PHR; thus, the patient acted as the user with ownership. The proposed blockchain-based PHR platform enables the integration of personal medical information with scattered distribution across multiple hospitals, and allows patients to freely use their health records in their daily lives and emergencies. The proposed platform is expected to serve as a stepping stone for patient-centered healthcare data management and utilization.