[1] In a case where the director of a mental medical institution fails to discharge a hospitalized person in spite of a failure to meet the requirements for continuous hospitalization within the period under the Mental Health Act, whether the act of unlawful confinement constitutes a tort (affirmative), and whether such unlawful confinement is permitted to meet the requirements for continuous hospitalization as soon as possible (negative)

[2] In a case where a mental medical institution fails to notify in writing the procedure of a request for examination of discharge as a result of hospitalization or extension of the period of hospitalization of a mentally ill person, or fails to take the procedure under the Mental Health Act despite a request for discharge of a mentally ill person, whether the entire period of hospitalization constitutes a tort (affirmative)

[1] The director of a mental medical institution shall immediately discharge a hospitalized person who fails to meet the requirements necessary for continuous hospitalization within 72 hours. In a case where a person who requested emergency hospitalization fails to discharge a hospitalized person against his/her will even after 72 hours have elapsed since he/she violated this provision, tort is established as an unlawful confinement. Since the procedure is unlawful during which such unlawful confinement continues, the procedure shall not be met immediately since it is unlawful. In addition, where a mentally ill person is hospitalized for more than 6 months pursuant to Article 24 of the Mental Health Act, the director of the mental medical institution shall complete all procedures such as diagnosis, consent by a medical specialist, request for examination, etc. before 6 months have passed from the first date of hospitalization, and where the procedure has not been completed even after 6 months have passed from the first date of hospitalization, the director of the mental medical institution shall immediately discharge the hospitalized person, and even in a case where the above procedure has

[2] In a case where a mental medical institution, while hospitalized a mentally ill person or extending the period of hospitalization, fails to notify without delay in writing the procedure of a request for examination of discharge, etc. under the Mental Health Act, or where the mental patient is neglected without taking the procedure as prescribed under the Mental Health Act despite the request for discharge, it constitutes illegal confinement against the entire period of hospitalization.

[1] Article 750 of the Civil Act, Articles 24 and 26 of the Mental Health Act / [2] Article 750 of the Civil Act, Articles 24, 29, 30, and 31 of the Mental Health Act

Plaintiff (Attorney Lee Young-chul et al., Counsel for plaintiff-appellant)

Korea

Busan District Court Decision 2005Na142 delivered on February 10, 2006

The part of the judgment below against the plaintiff is reversed, and that part of the case is remanded to Busan District Court Panel Division.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

Those who discover a person presumed to have mental illness and has a big risk to harm himself or other persons, may request the hospitalization of the person concerned to a mental medical institution with the consent of a doctor and a police officer, when the situation is very urgent, and the hospitalization cannot be conducted as prescribed in Articles 23 through 25 of the Mental Health Act. The director of the mental medical institution may, as above, make the person requested to be hospitalized in the mental medical institution within the limit of 72 hours. In a case where continuous hospitalization is necessary with respect to the person whose hospitalization is requested as a result of the diagnosis by a psychiatrist, hospitalization shall be conducted pursuant to Articles 23 through 25 of the Mental Health Act (Article 26 of the Mental Health Act). Therefore, when the person requested to be hospitalized fails to meet the requirements necessary for continuous hospitalization within 72 hours, the person in the mental medical institution shall be immediately discharged from the hospital, and if the person fails to discharge the person against his own will, it constitutes an unlawful confinement, and since such unlawful confinement procedure may continue to be continued, the procedure of hospitalization may not be delayed.

Where the legal guardian of a mentally ill person gives consent, the director of the mental medical institution may hospitalization the mentally ill person for a period of not more than 6 months only where the diagnosis is conducted by a psychiatrist who needs continuous hospitalization after the lapse of 6 months: Provided, That where the diagnosis by a psychiatrist that continuous hospitalization treatment is needed, and the legal guardian submits a written consent of hospitalization, the director of the mental medical institution shall request the Mayor/Do governor to review the continuous hospitalization treatment every six months, and where the order of discharge is issued according to the result of the examination, the patient concerned shall be immediately discharged (Article 24(1), (3), and (4) of the Mental Health Act). Therefore, where the mental patient is hospitalized for more than 6 months, the director of the mental medical institution shall complete all the procedures, such as diagnosis by a medical specialist, the legal guardian, the request for examination, etc. before the lapse of 6 months from the first date of hospitalization, and where the procedure has not been completed even after the lapse of 6 months, it shall be immediately discharged from the hospital, and in case of violation, the unlawful confinement procedure is established.

In the meantime, when the hospitalization or extension of the period of hospitalization of a mentally ill person is made, the director of the mental medical institution shall, without delay, notify the person in writing of the grounds for the extension of the period of hospitalization or the request for examination of discharge, and when a hospitalized patient requests the discharge from the hospitalized patient, he/she shall immediately discharge the patient concerned if it is possible to discharge the patient according to the opinion of a psychiatrist (Article 24(5) and (7) of the Mental Health Act). In addition, upon receipt of such a request, the person hospitalized in the mental medical institution may request the Mayor/Do governor to discharge the patient. Upon receipt of the request, the Mayor/Do governor shall immediately refer the contents of the request to the Local Mental Health Deliberative Committee. Upon receipt of such request, the local Mental Health Deliberative Committee shall immediately review the contents of the request and report the result thereof to the Mayor/Do governor, and when conducting the examination, he/she shall hear the opinion of the requester (Articles 29 through 31 of the Mental Health Act). Therefore, if a mental medical institution without delay notifies in writing the procedure of discharge and fails to provide guidance.

According to the facts established by the court below and the records, the head of ○○ Hospital did not discharge the plaintiff within 72 hours after the police officer requested emergency hospitalization of the plaintiff from the police officer on November 22, 2000, even though he did not meet the necessary requirements for continuous hospitalization, the head of ○○ Hospital did not discharge the plaintiff. On November 25, 2000, exceeding 17 days from November 25, 2000 and December 11, 2000, after obtaining the consent of the head of the Si/Gun/Gu which is the legal guardian, and later completed the hospitalization procedure under Article 24 of the Mental Health Act. ② The head of △△ Hospital did not discharge the plaintiff without undergoing the procedure of diagnosis, consent of the legal guardian, request for examination, etc. under the Mental Health Act even after the lapse of six months from November 22, 200, which was the date of initial hospitalization of the plaintiff, and the plaintiff did not clearly wish to discharge the plaintiff from the hospital to the extent that he/she did not wish to complete the procedure of hospitalization.

According to the reasoning of the judgment below, while recognizing the fact that the head of ○○ Hospital and the head of △△ Hospital illegally hospitalized the Plaintiff in violation of the Mental Health Act, the court below determined that the period of illegal hospitalization is limited to 17 days from the expiration of 72 hours from the date of requesting emergency hospitalization and 115 days from the date of initial hospitalization until the lawful requirements are met.

However, in light of the above legal principles, since the total of 615 days from November 22, 2000 after the time when the emergency hospitalization was allowed from November 22, 2000 to August 1, 2002, which was the date of discharge, all 72 hours after the date of the Plaintiff’s initial hospitalization constituted illegal confinement as a period of hospitalization in violation of the procedure under the Mental Health Act. Thus, the judgment of the court below contrary thereto is erroneous in the misapprehension of legal principles as to the procedure and requirements for hospitalization under the Mental Health Act, which affected the conclusion of the judgment, and the ground of appeal pointing this out has merit.

2. Regarding ground of appeal No. 2

In principle, the amount of loss of income that can be earned by a person who dies or has a physical disability due to a tort shall be calculated on the basis of the amount of profit earned by the victim from the occupation he/she had engaged in as at the time the damage was caused by the tort. The amount of loss of future income by a victim who did not have certain income at the time of the tort shall be based on the ordinary labor wages that anyone can earn by engaging in the tort if he/she is an ordinary person (see Supreme Court Decision 86Meu646, Feb. 24, 197, etc.

According to the reasoning of the judgment below, the court below rejected the Plaintiff’s claim for damages arising from actual income, on the ground that it is difficult to recognize that the Plaintiff had a labor ability to continuously obtain certain income at the time of initial hospitalization, as well as that it is not enough to recognize that the Plaintiff had a labor ability to continuously obtain certain income during the Plaintiff’s hospitalization period, as long as the necessity of hospitalization was recognized through the diagnosis of a psychiatrist.

However, in addition to the above legal principles, the following circumstances revealed in the records: (a) the Plaintiff did not have any particular mental disorder other than alcohol-related symptoms during the initial hospitalization or during the period of hospitalization; and (b) the Plaintiff was at the level of pointed out to be directly engaged in the trial of the first instance court; (c) the Plaintiff was at the age of 46 years of age at the time of initial hospitalization and did not have any physical disability other than the above medical history; and (d) even if it is difficult for the Plaintiff to recognize the career of his/her employee in other workplace, he/she could have been engaged in general labor that can be engaged in; and (e) as seen earlier, the determination of continuous hospitalization by a psychiatrist conducted during the illegal hospitalization period against the Plaintiff may be deemed to have somewhat lost labor ability compared to normal person (see Supreme Court Decision 94Da21566, Oct. 25, 1994); and (e) the lower court acknowledged that the Plaintiff did not have any labor ability at all as to the Plaintiff, contrary to the empirical rule, has merit.

3. Conclusion

Therefore, the part of the lower judgment against the Plaintiff is reversed, and that part of the case is remanded to the lower court for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Chang-soo (Presiding Justice)