신상보호 영역에서의 지원의사결정 제도 - 영국 정신능력법상의 제도를 중심으로

초록

This study aims to understand the decision making system and supportive policies for people who lacks capabilities under the England and Wales Mental Capacity Act in order to find implications for developing institutional devices for respecting self-determination rights in personal care. Relating to medical care, health care, and welfare services, the features of decision-making principles, scopes, structures, procedures and the application of law in decision-making support and the deprivation of physical freedom are analyzed. Under the Mental Capacity Act, the mental capacity means the ability to make decisions, and all individuals are assumed that they have these capabilities. It means that the law guarantees self-determination rights for people who lack capabilities and the past decision-making can be effective in the present even if a person currently lack capabilities for decision-making. Moreover, the best interest for a person is sought from the law in the process of decision making on the basis of their rights, wishes and preferences. This is a principle that applies regardless of the degree of individual decision making ability, and it also serves as a top priority for everyone involved in decision making process. Furthermore, it is important that the ‘best interest’ rule should be applied when limiting individual freedom or providing medical, medical and welfare services that deprive the individual of physical freedom, and safety devices is accompanied for these measures by the law. While person-centered approach is getting more important in Korean service areas than the past, there are no solid legal and institutional environments at the moment. In this situation, the decision-making support system of Mental Capability Act in England and Wales including the exercise of self-determination rights and the application of ‘best interest’ rule for people who lacks capabilities gives implications to the institutionalization of support decision-making in Korea.

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