• The Journal of the Korea Contents Association
• /
• v.16 no.6
• /
• pp.334-344
• /
• 2016

The purpose of this research is to investigate usage related predictors to activate Adult Guardianship System of People with Developmental Disabilities. To achieve the purpose of this research, we have analyzed the survey of parents of People with Developmental Disabilities usage needs for Adult Guardianship System which is based on the Andersen's behavioral model. The study utilized data from 2011 Welfare Needs Assessment of Seoul middle and senior-aged Family with Developmental Disabilities, and the analysis method, the study applied used SPSS 22.0, frequency analysis, descriptive statistics analysis, logistic regression analysis. According to the result, the usage needs for Adult Guardianship System increases meaningfully if the parents does not have occupation, and the subject of Adult Guardianship System is male. In income and the social security system wise, the usage needs for Adult Guardianship System show remarkably large rating if the average income is high and the desire to be cared by others is high. But in case of People with Developmental Disabilities, communication skills, the degree of disability, burden of caring does not have effect on the usage needs for Adult Guardianship System. The conclusion for this research is, first, to activate vigorous usage of Adult Guardianship System, the government intervention is required. Second, the following study is needed to explain to the concept of the needs caring by others and the cultural factors relating to the usage needs for Adult Guardianship System.

• Korean Journal of Social Welfare Studies
• /
• v.41 no.3
• /
• pp.241-269
• /
• 2010

The purpose of this study is to examine the arguments about the conceptualization and the assessment of mental capacity and legal competence concerning the adult guardianship. Based on these literature reviews, the author analysed Mental Capacity Act 2005 of United Kingdom. The act conceptualizes legal competence as a concept dependent on a specific decision, time, and environmental support or convenience. According to the act, the assessment of the legal competence shall be made with ensuring the person all the viable supports and environmental conveniences. And it appears that the hierarchical assessment system of the act assures that the more the decision is important the more professional and more formal assessment shall be used. Based on these findings the author suggested several implications for the legislation of a new adult guardianship act in Korea.

• The Korean Society of Law and Medicine
• /
• v.23 no.4
• /
• pp.75-102
• /
• 2022

In this article, 「Act on the hospice and palliative care and decisions on life-sustaining treatment for patients at the end of life」, 「Act On The Improvement Of Mental Health And The Support For Welfare Services For Mental Patients」, 「Organs Transplant Act」, 「Safety And Management Of Human Tissue Act」, 「Pharmaceutical Affairs Act」, 「Prevention Of Acquired Immunodeficiency Syndrome Act」, 「Tuberculosis Prevention Act」, 「Infectious Disease Control And Prevention Act」 were reviewed. Patients' right to self-determination and consent in these laws are related to civil law. even though they are closely related to the civil law in relation to patients' right to self-determination and consent. In order to consistently operate medical administration, it is necessary to understand the principles of civil law decision-making.

• The Korean Society of Law and Medicine
• /
• v.13 no.1
• /
• pp.125-153
• /
• 2012

The adult guardianship system has been introduced through amendments of Korean Civil Code for the first time in the March 2011(Act No. 10429, 7. 1. 2013. enforcement). The adult guardianship system has the main purposes to provide a lot of help vulnerable adults and elderly, and protect them on the welfare related with property act, treatment, care, etc. There could be a controversy about whether the protection Legal Guardian's consent(formerly known as the Mental Health Act) or permission of the Family Court(revised Civil Code) are required to, or the Mental Health Act should be revised, when mental patient will be hospitalized forcibly. The author proposes that mental patient with Adult guardians should be determined by Legal Guardian's consent and approval of the Family Court, but mental patient without Adult guardians could be determined by Legal Guardian's consent. The issue of Withdrawing of life-sustaining treatment could be occurred due to the aging society and the development of modern medicine, and this has provided difficult, various problems to mankind in Legal, ethical, and social welfare aspects. The need of Death with dignity law or Natural death law has been reduced for a revision of the Civil Code. Therefore, on the issue of Withdrawing of life-sustaining treatment, in the future, intervention of the court is necessary in accordance with the revised Civil Code Section, and Organ Transplantation Act and the brain death criteria may serve as an important criterion.

• The Korean Society of Law and Medicine
• /
• v.24 no.2
• /
• pp.147-196
• /
• 2023

Advances in brain science have made it possible to stimulate the brain to treat brain disorder or to connect directly between the neuron activity and an external devices. Non-invasive neurotechnologies already exist, but invasive neurotechnologies can provide more precise stimulation or measure brainwaves more precisely. Nowadays deep brain stimulation (DBS) is recognized as an accepted treatment for Parkinson's disease and essential tremor. In addition DBS has shown a certain positive effect in patients with Alzheimer's disease and depression. Brain-computer interfaces (BCI) are in the clinical stage but help patients in vegetative state can communicate or support rehabilitation for nerve-damaged people. The issue is that the people who need these invasive neurotechnologies are those whose capacity to consent is impaired or who are unable to communicate due to disease or nerve damage, while DBS and BCI operations are highly invasive and require informed consent of patients. Especially in areas where neurotechnology is still in clinical trials, the risks are greater and the benefits are uncertain, so more explanation should be provided to let patients make an informed decision. If the patient is under guardianship, the guardian is able to substitute for the patient's consent, if necessary with the authorization of court. If the patient is not under guardianship and the patient's capacity to consent is impaired or he is unable to express the consent, korean healthcare institution tend to rely on the patient's near relative guardian(de facto guardian) to give consent. But the concept of a de facto guardian is not provided by our civil law system. In the long run, it would be more appropriate to provide that a patient's spouse or next of kin may be authorized to give consent for the patient, if he or she is neither under guardianship nor appointed enduring power of attorney. If the patient was not properly informed of the risks involved in the neurosurgery, he or she may be entitled to compensation of intangible damages. If there is a causal relation between the malpractice and the side effects, the patient may also be able to recover damages for those side effects. In addition, both BCI and DBS involve the implantation of electrodes or microchips in the brain, which are controlled by an external devices. Since implantable medical devices are subject to product liability laws, the patient may be able to sue the manufacturer for damages if the defect caused the adverse effects. Recently, Korea's medical device regulation mandated liability insurance system for implantable medical devices to strengthen consumer protection.

• The Korean Society of Law and Medicine
• /
• v.24 no.3
• /
• pp.155-206
• /
• 2023

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.

• The Korean Society of Law and Medicine
• /
• v.24 no.4
• /
• pp.103-128
• /
• 2023

According to the current act of Decision-Marking in Life-Sustaining Medicine, the decision to withhold or discontinue life-sustaining treatment is primarily based on the wishes of a patient in the dying process. Decision-making regarding life-sustaining treatment for these patients is made by the patient, if he or she is conscious, directly expressing his/her intention for life-sustaining treatment in writing or verbally or by writing an advance medical directive and physician orders for life-sustaining treatment. It can be exercised. On the other hand, if the patient has not written an advance medical directive or physician orders for life-sustaining treatment, the patient's intention can be confirmed with a statement from the patient's family, or a decision to discontinue life-sustaining treatment can be made with the consent of all members of the patient's family. However, in the case of an unrelated patient who has no family or whose family is unknown, if an advance medical directive or physician orders for life-sustaining treatment are not written before hospitalization and a medical condition prevents the patient from expressing his or her opinion, the patient's will cannot be known and the patient cannot be informed. A situation arises where a decision must be made as to whether to continue or discontinue life-sustaining treatment. This study reviewed discussions and measures for unbefriended patients under the current law in order to suggest policy measures for deciding on life-sustaining treatment in the case of unbefriended patients. First, we looked at the application of the adult guardian system, but although an adult guardian can replace consent for medical treatment that infringes on the body, permission from the family court is required in cases where death may occur as a direct result of medical treatment. It cannot be said to be an appropriate solution for patients in the process of dying. Second, in accordance with Article 14 of the Life-Sustaining Treatment Decision Act, we looked at the deliberation of medical institution ethics committees on decisions to discontinue life-sustaining treatment for patients without family ties.Under the current law, the medical institution ethics committee cannot make decisions on discontinuation of life-sustaining treatment for unbefriended patients, so through revision, matters regarding decisions on discontinuation of life-sustaining treatment for unbefriended patients are reflected in Article 14 of the same Act or separate provisions for unbefriended patients are made. It is necessary to establish and amend new provisions. In addition, the medical institution ethics committee must make a decision on unbefriended patients, but if the medical institution cannot make such a decision, there is a need to revise the law so that the public ethics committee can make decisions, such as discontinuing life-sustaining treatment for unbefriended patients.

• The Korean Society of Law and Medicine
• /
• v.10 no.2
• /
• pp.203-249
• /
• 2009

It is the so-called Shinchon Severance Hospital Case brought to an end by the decision of the Supreme Court that opened the real discourse of withholding or withdrawing of LST (Life-Sustaining Treatment) in the legal profession as well as medical profession in Korea. Everyone has sympathy with the validity and necessity of legal regulation on withdrawing-including withholding-of LST save the requirements & procedure of withdrawing of LST. In this situation, the legislative bill of amendment to the Korean Civil Law introducing of adult guardianship was pre-announced by the Ministry of Justice on September 18th 2009. The adult guardianship is a guardianship system that supports an mentally handicapped adult to deal with his affairs by support of a guardian. The object of adult guardianship includes affairs of body or well-being as well as property of adult wards. In particular, affairs of medical matters are of importance in the duty and authority of adult guardians. So, the introduction of adult guardianship is of much importance de lege lata as well as de lege ferena in the discussion of withdrawing of LST as a medical treatment. Since the legislation on withdrawing of LST intents to protect the right of death with dignity on the basis of patients' autonomy, the ratio legis of withdrawing of LST is variant from that of adult guardianship. In this context, it seems reasonable to legislate the withdrawing of LST separately from the adultguardianship. In the meantime, the adult guardianship of the legislative bill of amendment to the Korean Civil Law is related to the withdrawing of LST, since the main purpose of adult guardianship is to protect patients' quality of lives and to regulate guardianship contracts based on patients' autonomy. In that context, it seems reasonable to incorporate the legislation of withdrawing of LST into the adult guardianship system. In the latter case, it is not easy to adopt the withdrawing of LST into the legislative bill of the Korean Civil Law for the bill is pre-announced already as previously stated. However, the legislation of withdrawing of LST is not inferior to the legislation of adult guardianship as a matter of urgency. Moreover, it is likely that the legislative bill of Amendment to the Korean Civil Law generates discrepancies in interpretation of the requirements & procedure of withdrawing of LST as the amended German Civil Law did. In short, it is desirable for the legislator to revise the legislative bill despite delay.

• The Korean Society of Law and Medicine
• /
• v.10 no.2
• /
• pp.183-201
• /
• 2009

Im Allgemeinen auch psychische Patienten k$\ddot{o}$nnen sich daruber selbst entscheiden, $\ddot{a}$rztliche Behandlung zu nehmen und ins Krankenhaus aufgenommen zu werden. Im S$\ddot{u}$dkorea bei der zwangsweisen Unterbringung wird kein KBGB des privatlichen Rechts, sondern Gesetz $\ddot{u}$ber psychisch Gesundheitspflege des $\ddot{o}$ffentlichen Rechts vorz$\ddot{u}$glich verwandt. Aber das noch kann ein selbst Bestimmungsrecht von der psychischen Patient verletzen. Im Deutschland regelt BGB $\S$ 1906 Zwangsunterbringung der psychische Patienten, die Gef$\ddot{a}$hr des Selbstmord oder der Eigengef$\ddot{a}$hrdung haben. Au$\ss$erdemhat jedes Land eigen Gesetz $\ddot{u}$ber psychischen Kranken, das $\ddot{o}$ffentliche Vorschrift f$\ddot{u}$r Zwangsunterbringung regelt. Im Fall der Zwangsunterbringung im Deutschland BGB $\S$ 1906 wird prim$\ddot{a}$rer als $\ddot{o}$ffentlich Rechts verwandt, um die Selbstbestimmungsrecht der Patienten zu unterstutzen. Auch im Korea KBGB (koreanisches B$\ddot{u}$rgerliches Gesetzbuch) Ver$\ddot{a}$nderungen f$\ddot{u}$r die Einf$\ddot{u}$hrung des Betreuungsrechts, die sich mit der Zwangsunterbringung befassen, sollten diskutiert werden, damit die Selbstbestimmung sch$\ddot{a}$tzen.

• The Korean Society of Law and Medicine
• /
• v.15 no.1
• /
• pp.303-333
• /
• 2014

The right to self-determination in regard to one's body is a key element of human dignity, privacy and freedom. It is constitutionally enshrined in the guarantee of human dignity, in the general right of personality and, most concretely of all, in the right to physical integrity. In principle No-one may trespass another person's body against his will, whether this act improves his physical condition or not. This right of self-determination applies equally to healthy and to sick people. Hence everyone has the right either to permit or to refuse a medical treatment, unless he can not make a rational decision. If the person does not consent himself, for whatever reason, another one must do for him as guardian. Representation in consent to medical treatment is therefore the exception of self-determination rule. This article explored, 1. who can consent to the medical treatment in the case of the mentally incapacitated adult and the infant, 2. what kind of consent to the medical treatment can the deputy determinate for the mentally incapacitated adult and the infant, 3. when the deputy can not determinate without permission of the court, and 4. what can the doctor do in the case of conflict between minors and guardians.