강제입원의 위법과 손해배상책임

Abstract

Recently, civil and criminal suits involved in illegal involuntary admission are increasing though involuntary admission should be based on civil commitment law. These days, more and more the mentally ill who are hospitalized involuntarily file a civil or criminal suit against family who consent to admission or director of mental hospital for violation of Mental Health Act. Illegal admission suit is different from malpractice suit. malpractice suit is about doctor’s professional negligence or medical malpractice, but illegal admission suit is about the violation of human rights, dignity and Mental Health Act. In 2016, Korean Constitutional Court decided to suspend the Article 24 in Mental Health Act which provides that nearest relatives have right to consent of the mentally ill’s admission on account of its unconstitutionality. The revised Mental Health Act passed the National Assembly in May last year. The revised Mental Act provides that nearest relatives have right to apply for the mentally ill’s admission for two weeks and director of mental hospital decide to hospitalize. Unlike western european countries, Korean Mental Health Act does not have the involuntary admission review body which is composed of judge or legal tribunal. In Korean Mental Health Act, the review body of involuntary admission is the medical review board and the board reviews a written documents without the attendance of the mentally ill. The mentally ill who is hospitalized without his or her consent in fact don’t have right to be heard. A civil suit by the mentally ill who insist on human rights abuses and breach of the Mental Health Act in mental hospital is increasing, This article analyzes the judicial decisions of the National Human Rights Commission and the Supreme Court and lower court about the illegality of involuntary admission. Illegal involuntary admission infringe on the mentally ill’s dignity and fundamental right in constitutional law and the mentally ill is entitled to compensation for pain, suffering and losing social relation.