행정법적 관점에서 본 비자의입원의 법적 성격과 절차

초록

Mental Health and Welfare Act provides 3 types of involuntary hospitalization: hospitalization upon request from family members(Type 1), hospitalization by mayor(Type 2), and emergency hospitalization. The former two have 3 stages each: hospitalization for diagnosis, hospitalization for treatment, and renewal of hospitalization. One of the 5 Screening Committees for Hospital Admission reviews the regularity and necessity of hospitalization. Mayors are responsible for the renewal of hospitalization, but it is not until a preliminary examination is carried out by a Mental Health Examination Committee that the decisions are made. Admission of patients by medical institution(Type 1) or by mayor(Type 2) and renewal of each hospitalization are deemed administrative decisions subject to the Administrative Procedure Act. They are also deemed compulsory measures subject to the warrant requirement principle stipulated in the Art. 12 of the Constitution, or at least, the procedural guarantees equivalent to the requirement. The review of the Screening Committee and the decision on the renewal of the Type 1 hospitalization are not compulsory measures but, as they fall into the category of administrative decisions, they also are subject to the Administrative Procedure Act. Although Mental Health and Welfare Act provides some procedural guarantees to the patients, at some stages they fall short of the standard set up by the Administrative Procedure Act and the Constitution. This is even more the case with the following: There should be an advance notice and hearing procedure for hospitalizations for treatment and for renewal of hospitalization, but neither the Mental Health and Welfare Act provides such a procedure nor is the relevant provision of the Administrative Procedure Act applied in administrative practices. Screening Committees for Hospital Admission work as reviewing bodies and mayors, with the help of Mental Health Examination Committees, play a role of deciding bodies concerning the renewal of hospitalization, but they do not guarantee the kind of fairness and promptness that is the essence of the warrant requirement. In short, the present involuntary hospitalization system still needs procedural improvement as some parts of the system do not take into account the fact that each stage of the procedure can be analysed as an administrative decision or a compulsory measure or both. We need to be aware of the fact that the procedural guarantees of the patients under involuntary hospitalization are not just for enhancing social welfare to the people with disabilities; it is to ensure that they exercise their constitutional and legal rights on an equal basis.

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