The 1997 indictment of a doctor was the turning point of how the medical fraternity and hospitals treat patients who are terminally ill and in coma with no prospect of recovery.

The doctor involved agreed to release a patient from the hospital at the request of family members wishing for a peaceful final moment. When the patient subsequently died, the doctor was indicted and found guilty of aiding murder. 

What followed (naturally) was a strictly defensive reaction from doctors and hospitals. They refused to release patients even in their dying hours and continued to treat them in hospitals until the final moment came. It would clear them of any legal problem, and the medical cost will be covered by the well-funded national medical insurance and the patients’ families anyway. The choice of patients and family members was no longer a prime determinant.

Then came a 2008 case where family members of a terminally ill patient brought legal action against one of the major hospitals in Seoul that had refused to disconnect life-prolonging equipment despite the family’s request. In a legal suit leading all the way to the Supreme Court, the family members prevailed and the life-sustaining equipment was taken off. The 1997 and 2008 incidents have since galvanized national debates over the need to legislate a law that regulates this sensitive issue. 

Another factor that has played a part here is the deeply rooted Confucian culture in the country where filial duty to parents has been taught as being of utmost importance. Traditionally, filial sons and daughters are supposed to do whatever it takes to ensure that their parents live longer. What the traditional teaching did not envision was the technological innovation that can prolong life even if there is no chance of getting cured or recovering.

So, the fuzzy legal parameters and the cultural tradition have apparently forced family members and doctors to apply the palliative treatment even if it may be presumed that the patients themselves might think otherwise. In the meantime, according to 2014 statistics, 81 percent of Koreans aged 65 years or over end dying at hospitals while 57 percent of the adults actually wish to stay at home in their final moments.

One of the new laws that passed the legislature in early January aims to address this uneasy situation. The new legislation, colloquially called the Well-Dying Law, aims to address this uncertainty of 18 years. Now, with a prior written statement from a patient, life-extending treatment for a patient with a terminal, incurable illness can be terminated. Written consent can be provided by a patient before hospitalization, or in the absence of such consent, all family members can attest to the patient’s statement to that effect based on prior discussion in the family followed by certification from two doctors that the patient has entered the dying process. So, once this law goes into effect in January 2018 after a two-year grace period, terminally-ill patients and their family members can choose to discontinue life-sustaining treatment for incurable diseases.

This law is the first attempt in the country to define the outer legal parameters of death with dignity. What is concerning is that the two-year grace period will likely see confusion on the part of hospitals and families, since it is not clear how hospitals and medical staff will (or will have to) respond in the interim until the law finally enters effect two years from now. Also, under the law only four types of treatment are to be covered by a patient’s own choice: CPR, mechanical ventilation, hemodialysis and anti-cancer drug administration. So, when a new medical treatment is developed, which is quite likely, the law apparently will not apply to it. That is another question mark.

How you live is important. But how you die is becoming equally important in this fast-aging society.

By Lee Jae-min

Lee Jae-min is an associate professor of law at Seoul National University. -- Ed.