On January 8, 2016, a bill entitled the 「Act on Hospice and Palliative Care and Decision Making regarding Life-Sustaining Treatment by a Patient in the Final Stages of Life」(hereinafter referred to as the "Act on Life-Sustaining Treatment" passed the Parliament and is expected to take effect in 2018. This legislation is significant in that it establishes a standard by which a decision concerning life-sustaining medical treatment is to be made by the patient him/herself, differently from the existing medical practice that such decision is made jointly by the patient's family and the hospital. Hospice and palliative care under the Act on Life-Sustaining Treatment is beyond the scope of the present study. Instead, the present study aims to examine the discourse surrounding decision-making of life-sustaining treatment as it is a subject area of criminal policy and thus to make a policy suggestion on the matter.
First, in Chapter 2 I reviewed the legislative process of the Act on Life-Sustaining Treatment in depth and identified the purposes and key contents of the law, as well as critical mind behind the legislation. The Act on Life-Sustaining Treatment was passed through social discussion and speculation on the matter. With a monumental case called the "Case of Ms. Kim" in 2009 in which the Supreme Court of Korea allowed withdrawal of life-sustaining treatment for the first time in its history, discussion about life-sustaining treatment started publicly in earnest. After this judgment, medical professionals set a voluntary guidelines concerning the decision-making re life-sustaining treatment, and the Ministry of Health and Welfare organized “Social Consultative Group re Institutionalization of Withdrawal of Life-Sustaining Treatment”. In 2013, National Bioethics Committee presented an institutionalization approach by a form of special act through its “Recommendations for Decision-Making concerning Life-Sustaining Treatment”. Various researches and open public hearings were carried out to prepare a bill, resulting in a widespread understanding that drafting it would required a social consensus about the process involving the opinions of both medical professionals and the interested party. In this atmosphere, the bill was passed first through the Legislation and Judiciary Committee in the Parliament, then the plenary session of the Assembly (January 8, 2016), and became an Act as the Cabinet Meeting approved it to be enacted and promulgated (February 3, 2016). The key contents of the law include the range of the subject patients of decision-making regarding life-sustaining treatment, the principal agent of decision-making, life-sustaining medical treatment to be applied to the patients in such decision-making process, method to confirm the patient’s intent, and method to presume the patient’s intent. The Act on Life-Sustaining Treatment has provided physicians with a legal basis to act in case of withholding life-sustaining treatment; nevertheless, a concrete legal basis in criminal law aspect concerning the act of withholding life-sustaining treatment has not been prepared. Moreover, a heated debate is still on-going surrounding how to determine that a patient is dying, the medical conditions required to withhold the treatment, and most importantly whether the patient’s family has a right to make a decision to cease the treatment on behalf of the patient if the patient’s intent can be only presumed.
In Chapter 3, I examined the US and Taiwanese laws on decision-making regarding life-sustaining treatment. First, in the US, the legislative process is similar to ours in that the court made a precedent, which caused social discussion and then the preparation of new medical convention and guidelines, to ultimately result in the legalization of the matter. The difference is, however, that in the US the federal government participated in the process of forming a social consensus in a more active manner, based on which the states have prepared relevant life-sustaining treatment laws in various titles, such as Natural Death Act and Death with Dignity Act. In addition, Advance Health Care Directives is practiced and specified in the name of patient’s right to self determination and therefore becomes the basis for medical professionals to act in the best interest of a patient once he or she loses ability to express the mind. Also in the case of the US, the legislation was realized on the basis of legal discussion concerning constitutional grounds of life-sustaining treatment, principal agent of decision-making and confirmation of the patient’s intent, and the criteria for vicarious decision throughout almost 15 year-long process of debate. What is characteristic in the US law is going through the legalization of the matter, the scope of subject matter, which used to be limited to the early stage of life-sustaining treatment, was extended to develop into a comprehensive law which defines the standard and process of decisionmaking across the health care system. Within the ambit of medical decision-making included are supply of artificial nutrition and hydration, order not to resuscitate, and all types of treatment practice and withholding/withdrawing of such treatment.
Taiwan’s hospice care act, Anning Huahe Yiliao Tiaoli, had a strong influence on Korean law. The main contents of the Taiwanese law are as follows. First, this law prescribes that a medical agenda called Physician’s Order of Life-Sustaining can be prepared for a terminal patient. For this agenda to be effective, no less than two persons of legal capacity should be present to witness the validity of the order except a person linked to the relevant medical institution. According to the law, whether a patient is at the terminal stage of life is determined by three criteria, that is, ‘serious injury or illness’, ‘ho hope of recovery’, and ‘expected death in a short period of time given the patient’s condition’, and two medical specialists should attended the judgment process. The direct family of the patient may request the physician in charge not to perform cardiopulmonary resuscitation in case the patient is unconscious; nevertheless, they cannot request to withhold or withdraw life-sustaining treatment. Such requirement is based on the idea that once life-sustaining treatment commences, withholding it by the patient’s family infringes the patient’s right to life. In this regards, there is some discussion that the family members of the terminal patient should be allowed to request to withhold cardiopulmonary resuscitation on the patient. Also, this law allows a legal agent to make a decision regarding life-sustaining treatment when the terminal patient cannot deliver his will clearly and unequivocally or is in capable of expressing his will. However, the agent’s decision-making on the issue must not be against the patient’s will delivered to the physician in charge previously. In Taiwan too, the discussion on the scope of terminal patients as a subject of decision-making regarding life-sustaining treatment, and the contents and extent of the family’s participation right in decision-making is still in progress.
In Chapter 4, I examined the legal issues concerning the key points of the Act on Life-Sustaining Treatment and analyzed them in constitutional, criminal and criminal policy perspectives respectively. The Act on Life Sustaining Treatment is a law regulating decision-making regarding life-sustaining treatment and other relevant issues, which directly concern ending a person’s life. Constitutional justification of the body of this legislation includes appealing to one’s right to life, dignity of a person, and right to self-determination. The majority opinion of the Supreme Court, the Constitutional Court and the constitutional academia is that in case of terminal patient, the patient has a constitutional right to self-determination on how to end one’s own life. Although the right to self-determination can conflict with protection of life, also guaranteed by the constitution, since the right is based on the dignity of a person it is justified. Yet, there is still no agreement about decision-making regarding the issue by the consensus of patient’s family, a process prescribed by the Act. A decision by the family members cannot be placed under the category of the patient’s right to self-determination. Then whether it is justifiable as it satisfies the patient’s dignity and value as a person becomes an issue. In case where a patient’s intent is unable to be identified and it is judged that any continuing the life-sustaining treatment would rather conflict with the patient’s dignity and value as a person, withholding life-sustaining treatment may be desirable. The difficulty is that the Article 18 of the current Act on Life-Sustaining Treatment does not have an element of judging the best interest of the patient. Therefore, it should be necessary in a legislative point of view to revise the law so that a normative judgment concerning the best interest of the patient can be available by the guidelines of Hospital Ethics Committee, even if there exists a complete consensus of the family members subject to the Article 18.
In criminal law theory, decision concerning withholding life-sustaining treatment has been debated for a long time with the name of euthanasia and death with dignity. The criminal law scholars try to solve the problem by seeing euthanasia as an element to constitute a murder in general, except that where there is circumstance precluding wrongfulness (in particular, justifiable act prescribed by Art. 20 of the Criminal Law) the offence is not established. Euthanasia is categorized by the standards of ‘nature or non-natural death’, ‘active or passive’, ‘direct or indirect’, and ‘voluntary or involuntary’. The academia has viewed decision-making regarding life-sustaining treatment to have a similar structure to ‘passive euthanasia’ and discussed the matter in that context. However, since the majority of cases discussed in the concept of euthanasia concern the physicians in charge or family members or persons related to the patient, who have a duty to prevent the patient’s death as a ‘legal guardian’ in general, it is almost meaningless to apply the ‘active or passive’ standard, which implies artificial or natural action. Further, by the enactment of the Act on Life-Sustaining Treatment, it can be interpreted that decision to withhold life-sustaining treatment has even no relevant component, or is applicable to ‘action by law’ as a justifiable act or circumstances precluding wrongfulness. In conclusion, by the enactment of the Act on Life-Sustaining Treatment, decision to withhold life-sustaining treatment is no longer a legal offence. The Act on Life-Sustaining Treatment provides a legal justification for involuntary decision to withhold life-sustaining treatment decided by the patient’s family.
From the criminal policy perspective, the Act on Life-Sustaining Treatment appears to require some complementation. First, in case where a decision is made by the family to withhold life-sustaining treatment over the patient, there is certainly a point to be judged as a legal offence and this should be reflected to the law in revision. The Act on Life-Sustaining Treatment prescribes penal provisions in Articles 39 and 40; however, there is no measure provided concerning the circumstances in which withholding life-sustaining treatment is decided by the family members. Given the social concern about the legal agent of the patient, mostly the patient’s direct family members, it is of utmost importance to establish penal provisions concerning decisions made by the patient’s family. It is worth noting that in Taiwan, a discussion is in progress about the legal significance and effect in case that the patient’s family decide to withhold the treatment. Secondly, a discussion about punishment is necessary for the cases where a decision to withhold life-sustaining treatment has been made and executed without proper or flawed procedures. The person to whom the punishment prescribed in Article 39, Section 1 of the Act is applied is the one who executes the decision of withholding life-sustaining treatment. That said, if a physician in charge made such a decision without proper authorization, that is, without following the appropriate procedures pursuant to the Articles 17 and 18 of the Act, his/her action should be condemned as an illegal one. Further, about the issue whether, in case a physician in charge has followed the procedures of the Articles 17 and 18 but the procedures were flawed, the physician should be punished for that, the application of penalty should be based on the determination whether the action was a result of willfulness or negligence. Thirdly, in cases where at the time of decision-making to withhold life-sustaining treatment there were some unanimous statements of the family members but such statements have turned out to be false and through the collusion of the family and thus are against the patient’s true will, or in cases where pursuant to the Article 18, Section 1 of the Act, a medical specialist in the relevant area confirms the patient’s will not to withhold life-sustaining treatment, but the family ignores the patient’s will intentionally, the illegality of their action is deemed more serious than that of the person who carries out the decision to withhold life-sustaining treatment over the patient. As for those cases, a thorough review on the illegality of their action should be done from the criminal law viewpoint.
Finally, in Chapter 5 I made a suggestion about legislative review on the Act on Life-Sustaining Treatment and a direction of future study in criminal law policy aspect. Making a decision regarding life-sustaining treatment is one single step among many medical decision-makings taking place in the entire medical process, and setting a clear boundary among those steps is not easy at all. Given that, regulating decision-making regarding life-sustaining treatment within the limit of general legislation of medical decision-making is most likely to guarantee terminal patients more time and opportunity for life. Just as the unified legislation concerning medical decisions of the US., the Act on Life-Sustaining Treatment should be able to be classified as a general law that regulates the standard and process of medical decision-making taking place in the entire process of medical care. To materialize it, legislative effort should be put further on this issue. Some side effects from the operation of the system and lack of empirical evidence, as well as lack of social consensus about life-sustaining treatment thus far, imply a long way to go in future. Canvassing and listening to the various groups of our society and gathering their opinions and wisdom are required.