공유의사결정 제도의 국내 도입 가능성에 대한 법제 및 법리적 고찰

초록

Shared Decision Making (SDM) is discussed in the modern medical field as a process that moves beyond the traditional doctrine of Informed Consent, which focused on one-way information transmission, to jointly seek the best treatment direction among multiple reasonable alternatives by equally combining the physician's medical expertise with the patient's individual values and preferences. In particular, SDM is evaluated as having the function of improving the quality of decision-making through Patient Decision Assistance (PtDA) in 'preference-sensitive situations,' where patients' value assessments regarding side effects or recovery periods vary. The Montgomery ruling in the UK is considered to have marked the starting point of discussions on the shared decision-making system, as it provided the impetus for incorporating the conversational model into the legal domain by imposing for the first time the duty of physicians to explain significant risks and reasonable alternatives from the patient's perspective. Meanwhile, Washington State law in the United States has explicitly introduced legislation regarding shared decision-making that grants legislative benefits to mitigate legal risks for medical professionals. This is achieved by recognizing certified PtDAs―where shared decision-making is faithfully implemented and a confirmation is drawn up―as clear and persuasive evidence in medical malpractice lawsuits. In South Korea, the physician's duty to inform, as defined by the current Medical Service Act and judicial precedents, is heavily focused on formalism. It is limited to specific surgeries and requires physicians to obtain patient consent after providing medical information regarding the procedure. Furthermore, because physicians determine the scope of their duty to inform based on cases where they have identified clinical indications, there is virtually no room for active patient intervention. Therefore, to stably establish the shared decision-making system in the domestic medical field, it is necessary to transform the structure of unilateral explanation from the physician to the patient into a bidirectional cooperative structure between the physician and the patient. At the same time, by accepting the standardization of explanation-related procedures and PtDA utilization records―characteristics of the shared decision-making system―it becomes easier for physicians to prove compliance with their duty to explain, thereby mitigating the legal risk of violations. Furthermore, the adoption of the shared decision-making system can function as a mechanism to prevent medical disputes by restoring relational trust between medical professionals and patients and realizing truly patient-centered care.

키워드