환자의 진료정보와 통제권에 관한 小考

Abstract

Information is something intangible, not anything tangible or solid in a limited boundary of space and time, and it is an unsubstantial property under legal regulations, which is characterized by being distributed here and there at the same time. Due to these unprecedented legal aspects of information, it is not easy to seek any principle of appropriate and practical law. That is why we, human being, have not yet incorporated the information into the subjects of law. As a result, current law system has failed to draw full-fledged and appropriate thinking models or legal concepts for this kind of legal subjects. Till now, there have been not any complete legal regulations as enforced for this concern, either. Besides, legal theories are developed in a flexible manner and their principles still remain incomplete. Unfortunately, Korean Civil Code contains or covers no concept about information. But according to regulations over conclusion of agreement, it is just presumable that if content of information refers to human intents, information delivery can be treated as a declaration of intent. As mentioned above, at the time of civil code as initially enforced, the intangible things like information could not be considered as a property with asset-like values. But nowadays, information itself has a substantial value like tangible asset, so that it can be considered even as one of subjects under dealing. Personal information refers to the information on any living individual, which includes up-to-the-minute information like sign, character, voice, sound and video as inherently identifiable through name or residential registration number, etc. But medical information which is addressed as a topic herein has concepts other than them. That is, medical information indicates the information about patients' health conditions, corresponding assessment and their course under the supply of medical care, which all are obtained from medical care practices in order to determine necessity of supplying medical care or provide medical care services for them. Therefore, it is noted that medical information belongs to both personal and medical information. Thus, it is possible that medical information has more or less considerable influences even on vital and physical aspect of individual persons, as well as their own human respect in the course of medical treatment. So it is not too much to say that medical information is the most critical one of personal information items. This medical information, i.e. personal information related to individual health condition, may cover patient' own physical conditions and even their socio-psychological living environment as well. Accordingly, it is inevitable that medical information should be sufficiently protected as one of personal rights, while medical personnel including doctors are subject to the responsibility for keeping any privacy of patients in business from divulgence. One the contrary, it is necessary to get much information on patients concerned for the benefit of providing better medical service for them in our comtemporary society from the angle of quality. That is why we also need institutional instruments as easier accessible and available than now from the angle of medical administration. Medical care is directly related to patients' vital and physical condition, and is actually carried out by their own autonomous decision. Here, it is essential to take human respect into consideration behind medical care. In view of human respect, it is unreasonable that patients cannot be any object under medical care, while considerations concerned in medical care information may be maintained and available only on the foundation of reliable relationships between doctors and patients. Medical personnel including doctors get qualified for the medical care of patients according to Medical Act and other regulations that provide the qualification for related medical occupations, which also stipulated that all medical personnel have responsibility for keeping any private medical information of patients from delivery or disclosure to unauthorized third party. Unless it is fully assured to protect this medical information, it is possible that patients would reject formal medical care, which may cause a great threat against medical system and public hygiene, bringing about unprecedented conflicts in our modern society as well. Summing up, medical information can be regarded one of most critical information by patients. In particular, it becomes inevitably more serious, when future-oriented medical care system would be realized on the basis of up-to-date medical technology related to life science including genetic research, gnomic diagnosis and gene therapy. It is undeniable that the development of future medical science may depend on the protection of medical care, which becomes a historical demand. Meanwhile, it is also requisite to build up a streamlined and stable system to make good use of medical information for patients who need quality medical services. To meet their needs, it is paramount to keep reliable relationships between doctors and patients.