정신건강증진 및 정신질환자 복지서비스 지원에 관한 법률의 시행과 치료, 입원, 퇴원 절차에서의 정신장애인 지원 방안

초록

Since the Constitutional Court decides, on 26th September 2016, that the involuntary admission of persons with mental illness to psychiatric hospitals and psychiatric institutions in accordance Article 24 of the Mental Health Act, which was totally revised in May 2016 to the Mental Health Improvement and the Support of Social Welfare to Persons with Mental Illness Act(hereinafter the revised Act), was incompatible with Article 12 of the Korean Constitution, it is indispensable to review the Artcle 43 of the revised Act in the light of the Constitutional Court decision mentioned above. After confirming that the involuntary admission according to article 43 of the revised Act as well as that of the previous Act is of a public law confinement, resulting in the deprivation of liberty, this paper argues that the assistance measure with which to facilitate of the persons liable to be subject to involuntary admission should be provided for; that otherwise the incompatibility of involuntary admission can hardly be cleared off. In this regard, this paper argues that persons with maintenance duty and guardians, on whom the public duty to protect the persons with mental illness are imposed by Article 39 of the revised Act, can in many cases be unsuitable persons for discharging that duty, because in many respects persons with conflicts of interests can be deemed as the very persons to protect those persons with mental illness, due to the lack of selection and suprvision process. Therefore this paper suggests that independent persons or bodies with expertise on mental illness and the human rights of persons with mental illness should be engaged as assistants to persons with mental illness to help them exercise their rights to treatments, admission and discharge. These independent mental health assistants can engage all persons involved in the process of treatment, admission and discharge of the persons with mental illness to perform their own role properly.

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