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KMID : 0897520170220010001
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Journal of Korean Association of Social Psychiatry
2017 Volume.22 No. 1 p.1 ~ p.8
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Regulation of Seclusion and Restraint in Psychiatric Wards :Perspectives from Human Rights and Constitutional Law
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Hwang Tae-Young
Kim Sung-Wan
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Abstract
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Under the Korean Constitution of 1987, our society has achieved significant progress in the field of constitutionalism and human rights. Specifically, the Mental Health Act of 1995 represented great progress in the domain of psychiatry. Nevertheless, from the perspective of human rights, there is continuing debate regarding current psychiatric practices involving the involuntary admission of patients with mental illnesses ; such debate is reflected in the 'nonconforming to the constitution' decision of the Constitutional Court of Korea (Case Number : 2014Hun-Ka9) based on Article 24 of the Mental Health Act of 2008 and the passage of the amendment to the Mental Health Act of 2016 by the National Assembly. New approaches to the promotion of human rights are now necessary with regard to the use of seclusion and restraint-in addition to the practice of involuntary admission-s the former are related to secondary and tertiary spatial and physical restriction. This study examines the regulation of seclusion and restraint in psychiatric wards from the perspectives of human rights and constitutional law and seeks to identify ways to guarantee basic human rights related to seclusion and restraint. To this end, this study shows that the use of seclusion and restraint is related to many basic human rights, such as human worth and dignity, the right to pursue happiness, the right to be equal before the law, the right to enjoy personal liberty, and various constitutional principles ; it, therefore, requires legal regulation. Furthermore, to promote the human rights of patients with mental illness and facilitate the harmonious resolution of conflicts with medical mental institutions, it may be desirable to implement approaches to regulation that involve 'three-stage theory' and are based on the perspective of the constitutional restriction of the right to enjoy freedom of occupation.
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KEYWORD
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Seclusion, Restraint, Constitutional law, Human rights, Legal order, Stage theory
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