정신보건법상 보호의무자에 의한 입원

Abstract

Legal Guardian laws established by the Mental Health Act derive from the Japanese Care & Custody of the Mentally Ill Act of 1900 that gave the welfare responsibility of the mentally-ill to the next-of-kin. This policy delegated the duty of care of the mentally-ill by an extension of the duty of care under civil laws since social and economic foundations to take care of such mentally-ill persons were non-existent. There are various opinions on what we should do about this duty of care going forward. From a social welfare standpoint, it is better to have a public system serve the medical issues of mental illness, and thus, some boldly suggest to abolish the duty of care in its entirety. On the other hand, others point to the fact that since it is difficult to find an alternative support system that can substitute the duty of care of the next-of-kin, we should try to improve the current system rather than replace it. Yet, before any kind of serious discussion has been made by social welfare or legal experts on the issue of Hospitalization by Legal Guardians, the Korean Civil Law has been revised on March 7, 2011 and shall be in effect by July 1, 2013. This revised Civil Law abolishes the previous incompetency and partial incompetency laws and introduces the concepts of adult guardianship, limited guardianship and specific guardianship. Also, adult guardianship is appointed directly by Family Courts in lieu of the previous sequential appointments of guardianship. In addition, adult guardians need to obtain permission from the Family Court to hospitalize an underage person in his custody. But according to current Mental Health laws, persons with Duty of Care have first priority as Legal Guardians, and then court-appointed Guardians thereafter. This means that until Mental Health laws are revised to reflect the changes in the Civil Law, even if a Family Court appoints an suitable guardian to protect a mentally-ill person, persons with Duty of care, i.e. the next-of-kin, will still remain in priority. In my opinion, we should revise Mental Health laws to distinguish between persons with parental rights and guardians for underage persons in custody and leave only the concept of guardians for adults in custody. In addition, we should revise Mental Health laws to require Family Court permission when a Legal Guardian hospitalizes a mentally-ill person in his custody.