영국법에서 의사결정무능력 성인의 보호제도의 역사적 전개와 2005년의 정신능력법의 특징

Abstract

Reform discussions surrounding Korean legal protection regime for the mentally incapacitated adult and which started nearly a decade ago have eventually resulted in the government draft bill in December 2009, which has since been under legislative scrutiny. Taking account of the experience of other advanced countries who have recently revised their legal framework for the protection of the mentally incapacitated adult, the suggested government draft seems short of the realization of such adults’ human right as well as proper protection for them. For the purpose of putting the academic discussion and practical attention on the right way to such goals as non-discrimination and normalization of such adults, this paper introduces the historical development in English law for the legal protection of the mentally incapacitated adult and the features of the Mental Capacity Act 2005, which fully came into force as of October 2007. This paper sketches such historical development as a tedious way so as to normalize the mentally incapacitated adult to the extent that they are entitled to the same treatment as the other citizen within the community, rather than being insulated from the community. From the legal perspective, it is, this paper argues,important that the mental capacity to make a decision on a specific subject matter should be determined on a case by case basis, rather than being approached on an all-or-nothing basis; even though the latter tends to be beautifully painted on the pretext of protecting them, it would result in discrimination and even humiliation of the mentally incapacitated adult. England’s experience, even though it holds true for the UK as a whole, shows that a functional approach toward the mental capacity issue itself cannot provoke any legal problem at all; in other words, common law sufficiently enables could-be pitfalls to be filled, such that the mentally incapacitated adult cannot be discriminated against, what this paper seeks to prove. What is more important to learn something from England’s experience is that there are many players who support the mentally incapacitated adult, whose roles are institutionalized by way of the Mental Capacity Act 2005. Among such supportive players acting based on the 2005, the Court of Protection and the Public Guardian can contribute to the protection of such adults, with aid from the Office of the Public Guardian and the Court of Protection Visitors. This paper suggests that in order to realize enhanced protection of the mentally incapacitated adult, Korean legislators learn from England’s experience in that the appropriate players to do protective and supervisory function with legal power to sanction abuses and neglects of the mentally incapacitated adult and with responsibility to propose further legal and systematic reform for the purpose of such adults’ proper protection are to be institutionalized, which is no less crucial in Korean legal environment than the introduction of a functional approach toward the mental capacity.