정신건강증진 및 정신질환자 복지서비스 지원에 관한 법률 제43조 및 민법 제947조의2 제2항에 의한 비자의입원의 상호관계

Abstract

The revised Mental Health Act, which will come into force as from 30th May 2017, qualifies the involuntary admission to psychiatric hospitals and institutions more narrow than the current Mental Health Act. The involuntary admission will be allowed only where the patients suffer mental illness sufficient enough to be treated or cared in a confined environment and they are likely to harm themselves or others. With such a revision, it will become more clearly revealed that the involuntary admission to mental hospitals and institutions is a deprivation of liberty by law, which has been regarded as a family matter or as an admission by family members. The involuntary admission should, therefore, be strictly controlled in conformity with an exception to the right to liberty of persons and safety, meaning that it shall be allowed only if it is consistent with an exception to Article 12 of the Korean Constitution Act, the right to liberty. According to the revised Mental Health Act, the involuntary admission will be reviewed firstly by the Suitability of Admission Review Committee, which is an institution of administrative review. That being said, the judicial review has still been open to the in-patients in accordance with the Protection of Person Act 2007. Psychiatrists who involuntarily admit mentally ill persons to psychiatric hospitals and institutions can be exposed to criminal liabilities as well as civil liabilities if they violate the involuntary admission legal provisions. It is a by-product of the power to involuntarily admit persons with mental illness, with which the involuntary admission in the public law, the Mental Health Act, endows psychiatrists. On the other hand, the involuntary admission shall not be allowed to the persons who suffer mental illness sufficient enough to be treated or cared in a confined environment, but who are unlikely to harm themselves or others in accordance with the revised Mental Health Act. The involuntary admission will be examined only in accordance with Article 947-2 section 2 of the Civil Code in Korea. This kind of involuntary admission can be executed only by an informed consent of competent guardians. Therefore, it is a pure civil commit to psychiatric hospitals. That being said, the involuntary admission in accordance with Article 947-2 section 2 entails a deprivation of liberty of in-patients, and the article 947-2 section 2 of Civil Code requires the authorization by a competent family court of the informed consent by a competent guardian. The family court should consider the necessity and suitability of the suggested involuntary admission with the effect of a deprivation of liberty, the suggested length of stay at hospitals, the will and preference of the patients at the time od delibration for the approval of the informed consent by guardians. The patients can appeal to family court when they are under the civil commit to psychiatric hospitals. This kind of involuntary admission is on the different track from the public law involuntary admission. In the case of civil law involuntary admission, psychiatrists shall not be exposed to civil liabilities nor criminal liabilities only on the ground that guardians abuse their power to informed consent to involuntary admission.