Since the launch of the National Human Rights Commission of Korea (NHRCK), social perception and awareness of human rights have been improved, and institutions have been changed for the better. However, institutional arrangements for improvements for persons with mental disabilities are still highly unsatisfactory. In particular, the human rights of the mentally challenged should be given more attention and care as persons with mental challenges are among the most vulnerable groups in society as they face social prejudice and are less able than other groups to speak out on violations of their human rights.
The commission views it as imperative to improve, produce and put in place related laws, policies and institutional arrangements in order to protect the human rights of persons with mental disabilities. In this context, the commission has carried out a study with experts in related fields on how to improve relevant laws and policies. The study focused mainly on the exploration of ways to make legal improvements regarding key issues exposed in the process of revising Mental Health Law, which is currently underway. More specifically, the study examinedthe current involuntary outpatient commitment and forced hospitalization by guardians. It also discussed methods for systematically managing local community cases to improve the human rights of children with mental disabilities along with related contentious matters. These examinations and discussions were aimed at finding solutions to existing problems and formulating ways to put in place legal mechanisms to promote the human rights of persons with mental disabilities.
1. Constitutionalist Approach to "Hospitalization by Guardians"
The current Mental Health Law details two types of hospitalization: voluntary vs. involuntary. Involuntary hospitalization is further divided into hospitalization by a guardian, hospitalization by a mayor or governor, and emergency hospitalization. Involuntary hospitalization and treatment restrict one's right to physical movement and one's right to be protected from physical harm. For this reason, the general principles regarding the restriction of basic rights and the principle of the prohibition of excessive legislation indicated in Article 37, Paragraph 2 of the Constitution should be observed in the process of any involuntary hospitalization. However, only 7.7% of inpatients in the nation's mental health facilities are voluntary inpatients (as of 2004), while most were hospitalized against their will by a family member or by the head of the relevant local government. Consent by a guardian should, in principle, be required for treatment only when it benefits the patient. Any attempt to use such an administrative measure for the purpose of general prevention in the interest of society should not be permitted. Thus, concerning attempts at treatment or hospitalization that are not based on the patients' genuine willingness, immediate solutions and action should be sought from a legalistic point of view. For example, the conditions and duration for involuntary treatment and hospitalization should be further limited so that when only outpatient treatment is necessary, the patient will not be hospitalized against his or her will and any misuse of the involuntary treatment/hospitalization system can be thwarted.
Issue of Defining Scope and Order of Guardians: This may be the most critical part of the whole issue. The optimal way to determine guardianship should be identified taking into consideration any possible conflict of interest between the patient and guardian as well as the ultimate benefit of the patient.
① In the case there is no natural guardian or if such an individual cannot fulfil his or her obligation as a guardian: Review the feasibility of a system of legal guardianship;
② Strict and distinct conditions should be applied for involuntary treatment and hospitalization upon a guardian's request. In particular, in deciding to treat a patient in long-term custody when there is no need for emergency treatment, the consent of a guardian should be limited to the submission of a request for a decision by a judicial authority. The validity of introducing the "requirement of an immediate and evident serious danger" for involuntary hospitalization should be reviewed;
③ Ways to reduce room for guardian intervention but increase experts' participation in determining the duration of hospitalization and the discharge of a patient should be explored; and
④ Ways to use the protection obligation of a guardian as a means to control forced treatment and/or forced hospitalization orders should be explored.
2. Institutionalization of Involuntary Outpatient Commitment
Involuntary outpatient commitment is a kind of civil commitment that legally orders that people with mental disorders participate in certain outpatient treatment programs. The law typically applies to people with psychiatric problems such as schizophrenia and manic-depressive psychosis and is aimed to improve the quality of life of patients with severe and chronic mental disorders by preventing long-term hospitalization and helping them receive stable psychiatric treatment in their local community.
In this vein, the study examined cases of the enactment of involuntary outpatient commitment in other nations, presented a set of desirable provisions to be included in the involuntary outpatient commitment law if enacted in Korea, and proposed measures to forestall human rights violations that could potentially be incurred by the law.
3. Systemization of Local Community Case Management to Improve the Human Rights of the Mentally Challenged
With the purpose of the promotion of the quality of life for people with psychiatric disorders, the mental health service system not only needs to provide services related to the treatment of mental disorders, but also must comprehensively involve various aspects for the rehabilitation of and local community protection services for persons with mental disabilities. In other words, since individuals with mental disabilities have difficulty adapting in the community as well as a range of needs in relationships with their family, local community and society, a holistic approach should be taken to deal with a variety of areas of their lives.
The study, in order to identify ways to improve local communities' mental health services: first, examined Korea's legal and institutional foundation for the provision of mental health services; second, proposed an exemplar for a comprehensive public management system for mental health services; third, specifically delineated the boundaries between private sector services and public sector services, as the latter involve management functions such as planning, adjustment and deployment of local communities' mental health resources; and fourth, proposed a method for the management of mental health cases based on local communities in order to connect private agencies with different functions in different service areas as an organic mental health system with internal efficiency and adaptations.
The National Human Rights Commission of Korea was established in 2001, offering investigation and remedy services for Korean citizens and foreigners residing in Korea against human rights violations and discrimination. The Commission provides policy recommendations and remedial action against human rights infringements, collaborates with international human rights organizations and implements educational programs to improve the human rights culture.
