Euthanasia

Euthanasia (안락사/安樂死) refers to the practice of intentionally ending a life in order to relieve pain and suffering.

According to Wikipedia, there are different euthanasia laws in each country. The British House of Lords Select Committee on Medical Ethics defines euthanasia as "a deliberate intervention undertaken with the express intention of ending a life, to relieve intractable suffering". In the Netherlands, euthanasia is understood as "termination of life by a doctor at the request of a patient".

Euthanasia is categorized in different ways, which include voluntary, non-voluntary, or involuntary. Voluntary euthanasia is legal in some countries and U.S. states. Non-voluntary euthanasia is illegal in all countries. However, in the Netherlands, physicians can avoid prosecution by following well described and strict conditions when non-voluntary euthanasia is performed on infants. Involuntary euthanasia is usually considered murder.

Key words
euthanasia, life-extending treatment, death with dignity, medical service contract

Death with Dignity case in Korea
In Korea, a 77-year-old woman identified by her surname Kim who had been hospitalized in a coma for 459 days was allowed to die with dignity by a court decision in May 2009. The Supreme Court held Kim's case satisfied four conditions to die with dignity:
 * The patient must be examined by a third medical party to prove that he or she has no chance of recovery;
 * The patient should have expressed a strong desire to halt life-sustaining treatment;
 * The only means of death is to remove life-sustaining treatment; and
 * Only medical doctors have the right to stop treatment.

With the decision, all medical treatment to prolong her life was stopped a month later. At last, Kim died 201 days later.

Kim visited a hospital for a bronchial endoscopy in February 2008 for suspected lung cancer. During the biopsy, Kim suffered unexpected profuse bleeding and lapsed into a coma. Kim's family sued for permission to let Kim die in peace on the grounds that living on a respirator would not be what Kim wants. The core question was how to confirm Kim’s opinion when she was in coma.

In the second appeal brought by Severance Hospital, the Supreme Court ruled that considering testimonies from the family and Kim's personal motto, Kim would have wanted to stop relying on life support. The Supreme Court held that, if a patient has reached a state of near-death where no recovery is possible and is deemed to have a desire to remove life support machines, the hospital can halt treatment without having to go through legal proceedings.

Korean case law
As mentioned above, the Supreme Court held that
 * If a patient asks for treatment to practitioner or medical facilities (hereinafter "medical practitioner") and medical practitioner begins treatment, then, a medical service contract is formed between medical practitioner and patient.
 * Under the medical service contract, a medical practitioner bears a duty to treat patient with medical knowledge and medical technology for treatment of disease and a patient bears a duty to pay medical charges. Due to flexible medical nature of progress of disease and change in patient condition, contents and scope of treatment are comprehensive and abstract.
 * Since the contents of treatment are specified according to disease diagnosis, patient's condition and natural change, and bio-reaction to treatment, etc.(hereinafter "patient's  health condition, etc."), a medical practitioner has discretionary power of considerable scope to select proper treatment methods according to patient's health condition, current medical level, and his own knowledge and experience.
 * However, where a treatment invading patient's body like operation was done, disease symptom, treatment method and necessity, occurrence of foreseeable risk, etc. in light of current medical level should be explained, and the pertinent patient should compare necessity or risky nature sufficiently and select treatment.
 * Thus, consent for treatment act must be secured. The patient's consent aims at guarantee of self-decision right protected by rights to personality and pursuit of happiness under Article 10 of the Constitution. Since the patient decides by himself how to maintain a life and body function and select treatment, contents of treatment offered by medical service contract are specified by medical practitioner's explanation and patient's consent.

Majority Opinion on whether to discontinue life-extending treatment
A. A treatment act (hereinafter "life-extending treatment") in the clear case where a patient medically has no possibility of recovering consciousness, or lost life-related important bio-function, and patient's body condition is near death in short time (hereinafter "irrecoverable death stage") does not aim at betterment of disease.

It is merely for keeping the current condition, and criteria different from other cases should apply in deciding whether to permit discontinuance of treatment. Where a possibility of recovering consciousness is lost and no more activity as a person is expected, and irrecoverable death stage is reached where the natural death stage had already begun, if a life-extending treatment as the medically meaningless body invasion is forced, then human dignity and value are rather harmed and so, in the above exceptional circumstance, a patient's decision to face death should be respected and to protect of the patient's dignity, value and right to pursuit of happiness as a human being corresponds to social norms and it does not violate the spirits of Constitution.

Therefore, in case where it is acknowledged that, upon reaching the irrecoverable death stage, the patient exercises a right to self decision based on dignity, value and the right to pursuit of happiness as human being, discontinuance of life-extending treatment can be allowed, barring special circumstance.

B. In the case where a patient, preparing for his reaching the irrecoverable death stage, expressed his opinion as to life-extending treatment rejection or discontinuance to a medical practitioner, although a right to self decision is not exercised at the time of treatment discontinuance, barring special circumstance where a patient's intention was changed after prior medical instruction, an exercise of right to self decision can be acknowledged. However, such prior medical instruction should satisfy elements for genuine exercise of a self decision right. Thus, after a patient capable of decision-making is offered with medical information from a medical practitioner directly and, based on the medical information and according to his own sense of value. he must decide soberly as to specific treatment act.

The above decision making process can be acknowledged as valid as prior medical instruction, if it is clearly proved at the time of treatment discontinuance that the patient himself either prepared a writing to the medical practitioner, or the treatment records, etc. exist revealing the contents of decision-making made during treatment process by medical practitioner. On the other hand, the irrecoverable death stage should be seriously decided by considering an attending physician's medical opinion and that of other expert doctors revealed by fact inquiry, treatment records determination, etc. as a whole.

C. On the other hand, in the case entering the irrecoverable death stage without a patient's prior medical instruction, the patient cannot be expected to express intention to demand change in treatment acts or discontinuance by exercising a right to self decision since he has no possibility of regaining consciousness. However, in case where, under the patient's usual sense of value or belief, etc., it can be acknowledged that since discontinuance of life-extending treatment objectively corresponds to patient's best interests, a patient would choose discontinuance of life-extending treatment, if a patient were given an opportunity of exercising a right to self decision, then his intention for discontinuance of life-extending treatment can be inferred. Such reasoning is rational and corresponds to social norms.

Such inference of patient's intention must be done objectively. Thus, objective resources to verify patient's intention must be referred to, and upon considering objective circumstances such as patient's expression of intention to family, friends, and etc., patient's reaction to the others' treatment, patient's religion, usual life style, etc., patient's age, treatment side effect, patient's possibility of suffering, treatment process to irrecoverable death stage,  degree of disease, current patient condition, etc., as a whole, his intention can be inferred only in the case where he would have chosen discontinuance of life-extending treatment, if he was offered medically sufficient information in the patient's present body condition.

D. Unless the patient files a lawsuit directly to the court of law, it is desirable that a committee composed of expert doctors, etc. makes a decision as to whether the patient reached irrecoverable death stage.

Dissenting Opinion

 * By Justices Lee Hong-hoon and Kim Nung-hwan

In case of the treatment directly connected to the life, a patient's "right to self decision" can be exercised in a passive way such as rejecting the treatment, but it cannot be permitted that such right is exercised in a positive way like discontinuing the treatment through removal of life maintaining device, e.g., artificial respiratory which is inserted and installed into patient's body. In a case where the patient rejects the insertion or installation of life maintaining devices to artificially maintain and extend his life, the medical practitioner shall comply with the patient's decision unless there exist special circumstances even if such decision seems to be unreasonable from the viewpoint of general persons, and shall not intrude or interfere the patient's expressed selection based on his own decision, solely on the ground of the general value evaluation. However, unlike this, to remove life maintaining devices which have already been inserted or installed into the patient's body and to discontinue treatment through such devices, would artificially change the patient's current condition, thereby causing his death or advancing the date of death.

Thus, the patient's request to remove life maintaining devices which have already been inserted or installed into his body or to discontinue treatment through such devices, shall be deemed to be a suicide unless there exist special circumstances. In addition, to remove life maintaining devices and to discontinue such treatment in response to the above patient's demand are not permitted in principle because the person doing such action engages in suicide. However, even under the condition that life maintaining devices are inserted and installed, if it is predicted or decided that the patient will die within relatively very short time such as several times or days, then the patient has already approached the process of irreversible death; the treatment through life maintaining devices is meaningless in the matter of medical science; and it is not helpful in maintaining and preserving the life. Thus, at this time it is permitted to remove life maintaining devices and to discontinue the treatment act.

Separate Opinion

 * By Justices Kim Ji-hyung and Park Ill-hoan

In the event a patient has already approached the stage of irrecoverable death without the patient's prior medical instruction, the patient shall be deemed to be a person in a habitual condition of mental unsoundness. A person in a habitual condition of mental unsoundness may be adjudged incompetent by a court pursuant to the Civil Code. And in that case, the guardian is appointed as his legal agent and the guardian of the incompetent shall not neglect his duty of care in the medical treatment, care and custody of his ward, in addition to managing the incompetent's affairs relating to property. Thus, for the incompetent's medical treatment, it is natural that the guardian can enter into a medical contract with a doctor as the incompetent's legal agent.

Additionally, the guardian may express his intention whether he would consent, for the incompetent, the acts of invading the body like operation, etc. as performed in the process of medical contract after a doctor's explanation was told. Likewise, even after the beginning of medical treatment, it is reasonable to see that the guardian may seek to modify the contents of medical contract, such as the discontinuance of medical treatment, within the scope necessary to preserve the incompetent's best interest. Moreover, if the treatment act is directly related to the incompetent's life, then the guardian's action as to the discontinuance shall be limited, as the patient's right to self decision concerning this matter is limited. In addition, even in case where the discontinuance of the life-extending treatment by the patient's right to self decision can be permitted, the guardian cannot exercise the incompetent's right to self decision about his life as his legal agent.

Thus, it cannot be said that the discontinuance of the life-extending treatment is permitted solely based on the guardian's intention. So then, even though the continuance of life-extending treatment in the event the patient approached the stage of irrecoverable death is useless for the patient who is an incompetent, and such continuance of treatment is likely to cause harm his dignity and value as human being, thereby to discontinue the treatment is to protect the interest of the patient himself, there is a concern that this will always lead to the problem of restraint on legal interest of the patient himself who is an incompetent.

Thus, applying by analogy Article 947 (2) of the Civil Code, it is reasonable to see that the court's permission shall be required to determine whether the guardian's request to discontinue life-extending treatment to medical practitioner is the best decision to preserve the incompetent's right to self decision practically. Those cases can be tried and decided under the family non-contentious procedure, according to the provisions as stipulated in the Family Litigation Act, the Rules on the Family Litigation, and Non-Contentious Case Litigation Procedure Act, etc. Meanwhile, although it is possible to obtain the court's permission as to the discontinuance of life-extending treatment according to non-contentious litigation procedures, it is not necessary that the side of the patient must obtain the permission according to non-contentious litigation procedures, and undoubtedly, it is possible for them to seek judgment having res judicata.

Majority Opinion on Respecting Patient's Intention
The opinion of the attending physician, evaluating doctors as to the treatment records and the patient's body condition revealed that the patient is without self breathing in the vegetative human being condition and her life is kept by artificial respirator, entering into irrecoverable death stage. In light of the conversation at normal life time and current condition, intention to discontinue life-extending treatment can be inferred if she was offered enough informations.

Dissenting Opinion

 * By Justices Ahn Dai-hee and Yang Chang Soo

The attending physician opinion must be weighed more heavily as he continues to treat the patient and knows patient's condition by direct resources, compared with expert opinion who approaches patient's condition only through medical records. Under the attending physician's opinion, the patient can not be said to enter into the irrecoverable death stage and if discontinuance of life-extending treatment is justified by right to self-decision, the "inferred intention" can be recognized only when the patient's intention can be inferred from objective circumstances. It can not be recognized by "assumptive intention" in majority opinion. Thus, there is no sufficient basis for the patient's inferred intention as to discontinuance of life-extending treatment to be recognized.

Dissenting Opinion

 * By Justices Lee Hong-hoon and Kim Nung-hwan

The request of removal of such device under the condition that artificial respiratory which is a life maintaining device has already been installed into the patient's body, is justified under the premise that even under such condition, the patient has already reached the stage of irrecoverable death at which it is predicted and decided that he will die within relatively short times. However, the patient of this case is in the persistent vegetative state not yet reaching brain death, and her life expectancy would be a minimum of 4 months or more. Thus, it cannot be deemed that the patient has already reached the stage of irrecoverable death.

Reference Provisions
Article 10 of the Constitution
 * All citizens shall be assured of human worth and dignity and have the right to pursue happiness. It shall be the duty of the State to confirm and guarantee the fundamental and inviolable human rights of individuals.

Article 12 (Adjudication of Incompetency) of the Civil Act
 * A person in a habitual condition of mental unsoundness may be adjudged incompetent by a court on the application of any of the persons mentioned in Article 9.

Article 680 (Definition of Mandate) of the Civil Act
 * A mandate shall become effective when one of the parties has entrusted the other party with the management of affairs and the other party has consented thereto

Article 689 (Right to Terminate Mandate by either Party at Will) of the Civil Act
 * (1) Either party may at any time rescind a contract of a mandate for the future.

Article 947 (Medical Treatment and Care, and Custody for Incompetent) of the Civil Act
 * (1) The guardian of an incompetent shall not neglect his duty of care in the medical treatment, care and custody of his ward.
 * (2) In order to place an incompetent under restraint in a private residence or to confine such person in a mental institution or any other place to undergo medical treatment, a guardian shall obtain permission from the court: Provided, that in an urgent situation, he may apply to the court for an ex post facto permission.

Article 2 (Definitions) of the Emergency Medical Service Act
 * For the purpose of this Act,
 * 1. The term "emergency patient" means a patient incapable of preserving lives or facing with possibility to incur a grave mental or physical harm unless he or she undergoes a required first-aid treatment, or a person under corresponding case, due to disease, childbirth, injuries or other emergency conditions caused by accidents and disasters, and who is prescribed by the Ordinance of the Ministry of Health and Welfare;
 * 2. The term "emergency medical service" means such measures as counsel, rescue, transfer, first-aid treatment and medical examination and treatment, etc. which are performed for emergency patients during the process from the outbreak of emergency cases to the recovery from the risk of lives or to the removal of grave mental or physical harms;
 * 3. The term "first-aid treatment" means an urgently required treatment for the purpose of preventing life risks or significant aggravation of symptoms including the securing of airway, recovery of heartbeat, etc. which are applied to the emergency patients as a kind of emergency medical activities;
 * 4. The term "person engaged in emergency medical service" means a physician or paramedic who provides an emergency medical service within the scope of license or qualification obtained under the conditions as determined by the related Acts and subordinate statutes;
 * 5. The term "emergency medical institution" means the central emergency medical center, regional emergency medical center, specialized emergency medical center, local emergency medical center and local emergency medical institution, which are designated by this Act, from among the medical institutions under Article 3 of the Medical Service Act;
 * 6. The term "ambulances, etc." means such means of transportation as the automobile, ship and aircraft which are used for the purpose of emergency medical service including the transfer of emergency patients;
 * 7. The term "emergency medical institutions, etc." means the emergency medical institutions, operators of ambulance, etc. and emergency medical service information centers; and
 * 8. The term "transfer business for emergency patients" means the business of transferring emergency patients, etc. by using ambulances, etc.

Article 3 of the Emergency Medical Service Act (Rights to Receive Emergency Medical Service)
 * All citizens shall have rights to receive emergency medical service without being discriminated on account of sex, age, race, religion, social status or economic conditions, etc.

Article 6 of the Emergency Medical Service Act (Prohibitions, etc. on Refusal of Emergency Medical Service)
 * (2) Persons engaged in emergency medical service shall, upon receipt of a request for emergency medical service while on duty or when they find any emergency cases, immediately render an emergency medical service, and shall not refuse or avoid it without any justifiable grounds.

Article 9 (Explaining Emergency Medical Service and Securing Consent) of the Emergency Medical Service Act
 * (2) In case where a legal agent accompanies the emergency patient because he has no mental capacity, those engaged in emergency medical service shall explain to the said agent about the emergency medical service and secure his consent thereto, and where no legal agent accompanies, those engaged in emergency medical service shall render the first-aid treatment after making explanation to the accompanying person, and may perform emergency medical examinations according to the medical judgment of a physician.

Article 3 (Definition) of the Act on Transplantation of Organs, etc.
 * The terms under this Act is defined as follows.
 * 4. "Living person" refers to persons except the brain dead person among human beings, and "the brain dead person" is the person determined as whose brain function as a whole irrecoverable comes to a stop under the legal test of its determination according to its determination procedure.

Article 39 (Punishment) of the Act on Transplantation of Organs, etc.
 * (a) The person constituting one of the followings is sentenced to life imprisonment or imprisonment of more than 2 years.
 * 1. One who extracts or transplants organs infected with such disease, or invaded with cancerous organs, or organs that may harm life and body of transplantation target patient against Article 10 (1)
 * 2. One who extracts organs, etc. without transplantation target decided against Article 10 (2)
 * 3. One who extracts organs, etc. under each subparagraph against Article 10 (3)
 * 4. One who extracts organs, etc. from minor under 6 years old against Article 10 (4)
 * 5. One who extracts organs, etc. from which cannot be extracted from the living person against Article 10 (5)
 * 6. One who extracts organs, etc. from brain death determination target not yet receiving brain death determination against Article 16
 * 7. On who determine brain death against Article 16 (2)
 * 8. One who extracts organs, etc. without consent of the party, etc. against Article 18 (1) or (2)
 * 9. One who extracts organs, etc. from the brain dead against Article 18 (3)
 * (b) One who cause death of human being against provision of each subparagraph of paragraph (1) shall be subject to death penalty, life imprisonment or imprisonment of more than 5 years

Article 2 (Emergency Patient) of the Execution Regulation of Emergency Medical Service Act
 * A person who is designated under Ministry Order of Health, Welfare, and Family" in Article 2 subparagraph 1 of the Act on emergency service (hereinafter "the Act") refers to person who has symptom like one of the following subparagraph:
 * 1. Emergency symptom and equivalent one as in the separate table 1
 * 2. Symptom determined by emergency medical employees that can be developed into symptom of subparagraph 1.