Constitutional Complaint against Legislative Omission regarding Withdrawal of Life Sustaining Treatment

[21-2(B) KCCR 647, 2008Hun-Ma385, November 26, 2009]

In this case, a constitutional complaint was filed by a patient herself and her son and daughters, asking for constitutional review of legislative omission of not providing an Act regarding withdrawal of life sustaining treatment, etc. Regarding the filing by the patient herself, the Constitutional Court rendered a decision of dismissal on the ground that "the constitutional complaint is not justiciable because the legislative omission does not fall under the 'non-exercise of governmental power' stipulated in Article 68 (1) of the Constitutional Court Act. Although the right of self determination on withdrawal of life sustaining treatment is one of the basic rights guaranteed by the Constitution, it is difficult to conclude that the state is obligated to legislate the 'Act on withdrawal of life sustaining treatment, etc.' to protect the right". Also, regarding the filing by the son and daughters of the patient, the Constitutional Court rendered a decision of dismissal on the ground that "there is no self-relatedness to the infringement of the fundamental right by the legislative omission, and therefore, the filing is not justiciable".

Background of the Case

Complainant Kim Ok-kyung is a patient who has been in a permanent vegetative state since suffering brain damage caused by hypoxia and has received medical treatment such as administration of antibiotics, artificial feeding and hydration solution, etc. (hereinafter,"life sustaining treatment"). Other complaints are her son and daughters.

Kim's son and daughters demanded the medical staff to halt any medical treatment for her, refusing to receive meaningless treatment of life extension, but the demand was refused by the hospital. Upon this, the complainants (including the special representative on behalf of Complainant Kim Ok-kyung) filed this constitutional complaint on May 11, 2008, arguing that "in case where it is possible to confirm the

intent of a dying patient, such as Complainant Kim in this case, to refuse to receive meaningless life sustaining treatment, a basic right to die a natural death should be acknowledged, and the complainants' human value, right to pursue happiness, property right, etc. are infringed by the legislature's omission to enact a related law to protect this right".

Summary of the Decision

In a unanimous vote (one concurring opinion), the Constitutional Court dismissed the constitutional complaint. The summary of decision is as follows:

1. Court Opinion

A. Whether the self-relatedness of comatose patient's children who filed the constitutional complaint can be acknowledged

In this case, the 'non-exercise of governmental power', which is the subject matter of review in this case, is the omission to legislate the 'Act on withdrawal of life sustaining treatment, etc.' The subject that is directly affected by the aforementioned legislative omission or legislation of the Act as fulfillment of the duty to legislate is a patient who would die if the life sustaining treatment is withdrawn or withheld. The children of such a patient have interests in the aforementioned legislative omission in that they have to endure emotional distress as watching 'the patient helplessly lying down on the bed and waiting for death without having a chance to die a natural death due to the futile life sustaining treatment' and possibly bear the economic burden to pay the medical bill as a person under duty to support the patient. It seems reasonable, however, that such emotional distress or economic burden should be deemed as only an indirect and factual interest. Therefore, the constitutional complaint filed by the children of the patient under life sustaining treatment is not justiciable as it is not directly related to the infringement on their own basic right.

B. Whether the legislative omission presented by the patient herself falls under the non-exercise of government power

Only when the legislature does not carry out the delegated legislation to make laws which is clearly stipulated in the Constitution in order to protect basic rights, or only when the legislature does not take any legislative action even in the case where the state becomes obligated to take action or protect certain category of people's basic rights which are created through the interpretation of the Constitution, the legislative omission can be a subject matter of a constitutional complaint as 'non-exercise of government power' under Article 68 (1) of the Constitutional Court Act. It seems that, however, there is no constitutional provision that explicitly delegates the legislation of the 'Act on withdrawal of life sustaining treatment, etc.' for the dying patients. Therefore, the issue in this case is whether the state is evidently obligated to legislate the 'Act on withdrawal of life sustaining treatment, etc.' under the interpretation of the Constitution. In relation to this, it is also required to review the question as to whether the dying patient's right of self-determination on withdrawal of life sustaining treatment is one of the constitutionally guaranteed basic rights. Further, on the basis of the premise that such a basic right is acknowledged, it is also needed to review the question as to whether the State has the duty to legislate 'Act on withdrawal of life sustaining treatment, etc.' to protect the right.

(1) Whether the dying patient's right of self-determination on withdrawal of life sustaining treatment is one of the constitutionally guaranteed basic rights

'Withdrawal of life sustaining treatment, or in other words, the self determination to shorten one's own lifespan' conflicts with the constitutional value of protecting the 'right to life'. Here, the 'dying patient' whose self-determination on withdrawal of life sustaining treatment is at issue means a patient who 'is medically unable to regain his/her consciousness, to recover the loss of function of important organs related to life and therefore it is evident that the

patient will end his/her life within short time considering the patient's physical condition', or namely, who is 'in a irrecoverable stage of death'. As the 'dying patient' can only extend his/her life with the help of medical equipments and probably become unable to extend his/her life even with the help of medical equipments as finally being in the irrecoverable stage due to the loss of other functions of body, the life sustaining treatment for the 'dying patient' is, medically speaking, a mere continuation of meaningless intrusion upon a person's body without any possibility of effective cure of disease. Moreover, such treatment can be regarded not as preventing the process of death from starting, but as artificially extending the final stage of death during the process of death which has already been started in natural condition. Therefore, although the decision and actual practice of withdrawing life sustaining treatment shorten patient's lifespan, this cannot be deemed a suicide as arbitrary disposal of life. Rather, this corresponds to the human value and dignity in that such practice is to leave one's life at the hand of the nature, freeing the dying patient from non-natural intrusion on body.

Therefore, a patient can be regarded as being able to make a decision to deny or cease life sustaining treatment to keep one's dignity and value as human being when facing death and inform the medical staff of his/her decision or wishes in advance before being unable to communicate, and such a decision should be protected as one of the aspects of the self-determination right guaranteed by the Constitution.

(2) Whether the legislature is obligated to enact the 'Act on withdrawal of life sustaining treatment, etc.' under the interpretation of the Constitution

Disputes over withdrawal of life sustaining treatment can be resolved by a court trial and the right of self-determination on withdrawal of life sustaining treatment can be effectively protected by the requirements and procedures for allowing the withdrawal set by the court trial, although not perfect. Also, since the issue of choosing to cease life sustaining treatment and die a natural death through exercising the right to self determination is related to the constitutional

value system of protecting the right to life and it is a matter of grave importance in connection with not only law and medical science but also religion, ethics and further, philosophical discussion of human existence, it requires a sufficient social consensus. Therefore, the legislation of an Act related to this issue should be possible only after the social discussion on this becomes mature, yields a public consensus and then the legislature recognizes such necessity as a result. Also, the National Assembly has discretion to decide which of the options including 'presenting norms and standard through a court trial' or 'legislation' would be desirable as a means to guarantee the 'right of self-determination on withdrawal of life sustaining treatment', which is an issue of legislative policy.

Therefore, under the interpretation of the Constitution, it is difficult to conclude that the state has an obligation to legislate the 'Act on withdrawal of life sustaining treatment, etc.'

(3) Conclusion

After all, since the constitutional complaint by the patient herself against the legislative omission to provide the 'Act on withdrawal of life sustaining treatment, etc.' is considered to be filed against a matter for which the state does not have the duty to legislate, not falling under the 'non-exercise of governmental power' stipulated in Article 68 (1) of the Constitutional Court Act, it is non justiciable.

2. Concurring Opinion of One Justice

The core element of the right of self determination derived from Article 10 of the Constitution is autonomy and the autonomy is premised on the fact that an individual can make an informed decision among many possible alternatives, sufficiently understanding the meanings of each alternative.

When a patient is finally in the irrecoverable stage waiting for upcoming death, however, it is hard or impossible to identify the patient's decision on withdrawal of life sustaining treatment. It is also doubtable that, at the point of withdrawal of life sustaining treatment, patients can make a choice between life and death by themselves with

sufficient understanding of the meanings of the two alternatives, or can make an autonomous decision to pull the plug. In this case, the issue is whether withdrawal of life sustaining treatment objectively corresponds to the patient's best interest in light of the patient's set of values and beliefs in general. After all, in the case of a dying patient, since it is hard to connect withdrawal of life sustaining treatment with the existence of a prior medical instruction by the patient, the right of self-autonomy under the Constitution may not be an issue to be considered here.

An issue of ceasing life sustaining treatment for a dying patient in the irrecoverable stage requires a social consensus, considering not only the patient's intent but also the medical care system and social insurance system to relieve economic and emotional burden of patient's family members and the standard and procedures for preventing withdrawal of life sustaining treatment from being misused or abused in order to protect our precious life as the very source of human existence. Namely, this issue should be solved not by considering the patient's right to self determination on one's own life, which is not even guaranteed by the Constitution, as an absolute standard but by the legislature's enactment of a relevant law on the basis of a public consensus formed through discussion and deliberation by the community members.

Therefore, the constitutional complaint filed by the patient herself should be dismissed on the ground that there is no possibility of infringement on the basic rights.