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KMID : 1234820230240030155
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Korean Society of Law and Medicine
2023 Volume.24 No. 3 p.155 ~ p.206
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Fusion of the Guardianship System and Mental Health Law Based on Mental Capacity－Focusing on the Enactment and the Application of the Mental Capacity Act (Northern Ireland) 2016－
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You Ki-Hoon
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Abstract
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When a person with diminished mental capacity refuses necessary medical care, normative judgments about when paternalistic intervention can be justified come into question. A typical example is involuntary hospitalization for people with mental disabilities, traditionally governed by mental health law.
However, Korean civil law reform in 2011 introduced a new form of involuntary hospitalization through guardianship legislation, leading to a dualized system to involuntary hospitalization. Consequently, a conflict has arisen between the ‘best interest and surrogate decision-making’ paradigm of civil law and the ‘social defense and preventive detention’ paradigm of mental health law. Many countries have criticized this dualized system as not only inefficient but also unfair. Moreover, the requirement for the presence of ‘mental illness’ for involuntary hospitalization under mental health law has faced criticism for unfairly discriminating against people with mental disabilities.
In response, attempts have been made to integrate guardianship legislation and mental health law based on mental capacity. This study examines the legislative process and framework of the Mental Capacity Act (Northern Ireland) 2016, which reorganized the mental health care system by fusing guardianship legislation with mental health law based on mental capacity. By analyzing the case of Northern Ireland, which has grappled with conflicts between guardianship legislation and mental health law since the 1990s and recently proposed mental capacity as a single, non-discriminatory standard, we aimed to offer insights for the Korean guardianship and mental health systems.
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KEYWORD
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Adult guardianship, Decision-making capacity, Mental Capacity Act, Mental Health Act, Supported-decision making, UN CRPD, Self-determination, Incapacity, Mental disability, Mental disorder
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