• The Korean Society of Law and Medicine
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• v.16 no.2
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• pp.55-84
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• 2015

The tuberculosis is the infectious disease. Generally, the active tuberculosis patient can infect the 10 persons for one year within the daily activities like casual conversation and singing together. The infectivity of tuberculosis can continue for a life time, and infected persons can remain at risk for developing active tuberculosis. To control this contagious disease, along with the active tuberculosis patients, non-infectious but non-compliant patients who can be infectious if their immune systems become impaired have to be managed. To control the non-complaint patients, medical treatment order should be combined with the public order. Because tuberculosis is the risk of community health, the human rights like liberty and freedom of movement can be restricted for public welfare under the article 37(2) of constitution. Even when such restriction is imposed, no essential aspect of the freedom or right shall be violated. The degree of restriction on the rights of citizens is different what methods are chosen to non-complaint patients. For example, under the directly observed therapy program, the patients and medical staffs make an appointment and meet to confirm the drug intakes according to the schedule, which is the medical treatment combined with the mildest public order. If the patients break the appointments or have the history of disobedient, the involuntary detention can obtain the legitimate cause. The Tuberculosis Prevention Act has the two step programs on this involuntary detention, The admission order (Article 15) is issued when the patients are infectious. The quarantine order (Artle 15-2) is issued when the patients are infectious and non-complaint. The legal criteria for involuntary detention are discussed and published through the international conventions and covenants. For example, World Health Organization had made guidance on human rights and involuntary detention for tuberculosis control. The restrictions should be carried out in accordance with the our law and in the legitimate objective of public interest. And the restriction should be based on scientific evidence and not imposed in an unreasonable or discriminatory manner. We define and adopt these international criteria under our constitution and legal system. Least restrictive alternative principle, proportionality principle and the individual evaluation methods are explained through the reviews of United States court decisions. Habeas Corpus Act is reviewed and adopted as the procedural due process to protect the patient rights as a citizen. Along with that, what conditions and facilities which are needed to performed quarantine order are discussed.