미성년자의 의사결정능력과 동의

In order to consent to medical treatment, patients must be capable of making voluntary decisions. Patients with decision-making competence must be able to understand the information their physician offers them, evaluate the potential benefits and risks of any treatment the physician proposes, and make their own decisions without the influence of others. Prior to asking for a patient's consent, a physician must first decide whether or not the patient has the competence to make an adequate decision. If the patient is fit for making voluntary decisions, his/her decisions must be respected. If the patient is unfit for making such decisions, then family members or agents stipulated by the law will have the right to make decisions on behalf of the patient.

However, it is not easy to determine whether a patient has the proper competence to give voluntary informed consent. This determination is difficult especially in the case of minors, the mentally ill, and senior citizens. Attitudes toward judging the competence of minors are vague. This is well revealed in legislation on the rights of minors to give voluntary informed consent. However, recent studies on the mental development of minors show that minors do in fact have decisionmaking competence similar to that of adults. These studies emphasize the importance of first checking the competence of minors to give voluntary informed consent and then getting their approval. Answers are sought on what would be most suitable means to obtain the consent of minors.

First, patients must be given the proper information of the kind of treatment they will receive; minors should not be exempted from this process. However, minors have been legally regarded as persons without competence to give appropriate and voluntary informed consent, and it is usually the parents that have the right to make decisions on behalf of their children. Therefore, it has been common practice to obtain consent for treatment from parents. In order for this practice to be justifiable, minors must not have any competence to make decisions. In reality, however, legal regulations state that minors do have the competence to make decisions for themselves. This recognition is reflected in recent ethical guidelines for physicians. We need to examine how the law interprets the decision-making competence of children and how the decision-making competence of children has actually developed.

Second, though it may be true that minors do not have as much decision-making competence as adults, we can see in the cognitive development of minors that the older they become, the more competence they have to make adequate decisions for themselves. Hence, excluding the opinion of minors cannot be justified. I believe that though the competence of minors to make decisions?may not be perfect, a suitable method should be used to gain consent from minors who are in the process of developing their own autonomy. In addition, I suggest that a cooperative model among minors, parents, and physicians should be followed in order to get the“ assent”of minors.

Third, while it is ideal to obtain the assent of minors through this cooperative model, in reality there are ethical limits to this model. Because there are no standards for evaluating the decisionmaking competence of minors, it is difficult to determine who can give assent and who can give consent. There is also no accurate answer to the question of when to give minors the right to refuse treatment. Nor are there devices to mediate when conflicts arise between the choices of minors and parents. These limitations must ultimately be overcome during the process of promoting this cooperative model. It is important to create guidelines to overcome these limitations.