Welfare law facilitates aims to enable people with mental disabilities to participate in society but can have inadvertent, reverse effects. South Korean disability welfare law has historically treated mental (psychosocial) disability differently from ...
Welfare law facilitates aims to enable people with mental disabilities to participate in society but can have inadvertent, reverse effects. South Korean disability welfare law has historically treated mental (psychosocial) disability differently from other disabilities, which inadvertently caused segregation, stigmatization, and neglect. This study calls this problem disenablement. Disenablement is problematic because it frustrates the very goals welfare law tries to achieve and risks non-compliance with international obligations like the UN Disability Rights Convention. However, both the disenabling potential of welfare law in particular and South Korean welfare law in general have received limited attention in international legal research. Therefore, this research asks how South Korean mental disability welfare law has historically (1940s-present) approached key issues like eligibility criteria, income support, and (de)institutionalization, and how its chosen approach disenabled. For methodology, this work relies on a document study of legal texts in conjunction with other historical sources like newspapers, complemented with semi-structured interviews with mental disability rights activists. Furthermore, it analyzes comparable Dutch law as a case study to formulate legal and policy recommendations. This work started with a brief, general narrative of the history of Korean welfare law to which each subsequent chapter added the particular narrative of the issue it discussed (eligibility, income support, and institutionalization). It found that, firstly, disability in Korean law is primarily conceived as physical and that this limited access to welfare through mental disability-unfriendly assessment methods and exclusionary provisions. Secondly, disability income support law reinforced a hierarchy of disabilities that disproportionately directed people with mental disabilities to conditional schemes with low benefits and a weak rights-basis. Thirdly, welfare law facilitated the institutionalization of people with mental disabilities but the lack of coordination with other laws frustrated deinstitutionalization. It concludes with a comparative chapter and recommends reforming assessment and income support law to improve the inclusion of mental disability and strengthening procedural rights to facilitate involvement and rights-claiming.