Proper

Abstract

Korean Constitutional Court decided that the protective hospitalization under the former Mental Health Act Article 24 is against the constitution, as it violates the principle of proportionality by not preparing any proper measures to minimize the mentally ill person’s personal liberty while restricting it coming close to the degree of detention. Therefore, the Mental Health and Welfare Act was enacted in Korea to replace the former law and enhance the requirements for involuntary hospitalization, especially the protective hospitalization demanded by the patient’s family. In America, the U.S. Supreme Court has made the possibility of harming oneself and others the fundamental requirement for involuntary hospitalization. Meanwhile, most states regulate that the judge should decide, according to the judicial procedure for examination, whether to put a person under involuntary hospitalization. Especially, it is noticeable that the U.S. has ensured the mentally ill’s human rights, treatments, and welfare by improving the legal clarity by defining the requirements, procedures, supervision and examination of the involuntary hospitalization under each state’s state law.