신앙의 자유에 기초한 수혈거부행위를 둘러싼 관련 당사자의 법적 책임 문제

Refusal to transfuse blood in certain religions is based on religious beliefs, and their actions are not the refusal of treatment itself or the abandonment of life, but the choice of treatment based on the exercise of the right to self-determination guaranteed by the Constitution. In this regard, the issue of refusal of blood transfusion should not be viewed as a ‘confrontation’ or ‘conflict’ issue between the patient and the doctor, but as a ‘harmony’ between the patient's exercise of self-determination and the doctor's medical work. The capacity to consent to medical treatment requires a different judgment from the capacity to act and mental capacity under civil law. Adults have complete capacity to consent, except in special cases such as mental disorders. In this case, the intention to refuse blood transfusion based on the right to self-determination must be respected. In principle, medical personnel cannot be held legally responsible for the results of bloodless treatment with respect to the patient's intention. On the other hand, a doctor who administers a blood transfusion despite the patient's refusal of the transfusion may be held liable for tort or breach of contract(in cases where there is a special provision for bloodless surgery), and may be subject to criminal liability, except in cases where there are grounds for excluding illegality or liability, such as in the case of emergency patients How to determine a minor with the capacity to consent, also known as a quasi-adult, should be determined by considering the specific circumstances, but I considered minors under the age of 14 as minors without the capacity to consent, and minors between the ages of 14 and 18 as minors with the capacity to consent based on the age of 14, which is the age of criminal responsibility. However, in the case of minors with the capacity to consent, the decision on whether to receive a blood transfusion must be made by taking into consideration the wishes of the parents as well, but the minor is the primary subject of the heightened duty of explanation, and various measures at the level of the duty to protect life must be taken first. In the case of a patient who has lost the ability to make decisions, the wishes of the family, such as the spouse, will generally be taken into consideration, but if the surgery is beneficial to the patient and is consistent with his presumed will, ‘life-sustaining surgery’ can be justified through presumed consent. However, Jehovah’s Witnesses usually have a firm preliminary medical guidelines, and it can be said that refusing a blood transfusion is a presumptive intention according to the rule of thumb. The preliminary medical guidelines at this time should be considered to be binding, such as refusal of blood transfusion by a person with the ability to consent. In the case of adults or minors who do not have the ability to make decisions, the patient's guardian (a legal representative such as adult guardian, parental authority, etc.) is subject to the duty of explanation and has the right to consent or veto blood transfusions. In Korea, there is a precedent that addresses the issue of the scope of parental authority in relation to the refusal of blood transfusion by a minor who lacks decision-making capacity. When there is a conflict of opinion between the parents of a minor patient under the age of 14 and the medical staff, it is necessary to establish a system in which the court mediates the matter through ‘reasonable consideration.’ Obligations to prohibit doctors from refusing medical treatment as stipulated in the Emergency Medical Services Act should be understood as a regulation for the benefit of emergency patients if the intention to refuse medical treatment is not clearly indicated. Even if a patient is willing to refuse blood transfusion, a doctor shall bear the ethical and legal obligation to perform all emergency medical care except blood transfusions. Violation of these obligations may result in civil liability for damages as well as criminal liability(violation of emergency medical obligations). However, if an unforeseen situation occurs later, unlike when the treatment was initiated, the doctor's duty of care may be questioned. If a life is saved through blood transfusion treatment because the doctor judges that blood transfusion is the only way to save life, it is believed that the doctor cannot be held legally responsible. This should be viewed as a balanced decision that can protect the patient's life and also protect one's medical conscience.