Rights-based mental health legislation and the right to be treated

Following the United Nations Declaration on the Rights of Persons with Mental Illness (1991), the Australian Government released the National Mental Health Policy in 1992. Pointedly, the Report of the National Inquiry into the Rights of People with a Mental Illness in 1993 was critical of the failure of a number of Australian jurisdictions to adequately protect the rights of people with mental illness. A subsequent critique of the capacity of mental health law and policy to respond to current and future challenges of community-based care suggested that while Australian legislation and policies may pass human rights scrutiny in principle, there was insufficient focus on the monitoring processes to ensure implementation and adherence to those measures. The new Commonwealth Attorney-General has foreshadowed the development of a Charter of Rights to create a framework for legislators and regulators when drafting legislation to cover "aspirations" such as the recognition of fundamental human rights. However, it is argued that the dilemma of how best to care for and protect those afflicted with mental illness as well as the public who may be affected by violence or offending by those persons with untreated mental illness, will not be resolved by resort to a didactic Charter of Rights, however idealistic or well intentioned.     

Rape Without Consent

This article is a defence of a differentiated offence of rape.A differentiated offence is an offence which can be completedin a number of different ways that cannot be captured in a simpledefinition. It is argued that such an offence would meet severalconcerns that have been expressed in the feminist literatureabout the law of rape. It would assist certainty, it would reducethe extent to which the offence focuses on the conduct of thecomplainant, it would allow the law to express that violenceis central to the offence of rape where violence is present,but it would also allow convictions of rape where there is noviolence. The argument is developed through critical engagementwith the law of rape as set out in the Sexual Offences Act 2003.The Sexual Offences Act, it is argued, fails adequately to meetthe concerns outlined above.     

Medical diagnosis of legal culpability: the impact of early psychiatric testimony in the 19th century English criminal trial

Fast-paced developments in psychiatry, neuroscience and emerging neuroimaging technologies place continual pressure on the legal recognition of mental illness and disease across jurisdictional boundaries. Nevertheless, the Canadian legal definition of exculpatory mental disease in the context of criminal liability has remained largely static, sheltered from the immediate influence of medical theory and advancements. In order to effectively reflect on the intersection of mental health and criminal justice systems in this area, it is important to understand its historical development and the English common law origins of the current approach. Specifically turning to the early 19th century, documented history and accounts of early medical witness testimony on the mental state of the accused provide a unique opportunity to understand the initial collision between fundamental concepts of moral and legal culpability and new scientific understandings of mental function and disease. In this article, I suggest that early psychiatric testimony to the accused's mental state challenged the evolving criminal law of 19th century England to reconcile its restrictive definition of "insanity" with expanding scientific reasoning and accounts of mental disease. The trial of Edward Oxford, an attempted royal assassination case of 1840, is examined as a symbolic height in this conflict prior to the first common law pronouncement of the current approach in 1843. As debate continues on the role of medical advancement in the identification of exculpatory medical disorders in law, this historical perspective may serve as a touchstone in balancing the enforcement of legal culpability with our society's greater appreciation for mental illness.     

Police use of TASERs in the restraint and transport of persons with a mental illness

The mentally ill are overrepresented in the statistics of individuals killed or injured by police and it is understandable that police would seek a weapon, such as a TASER, that is less lethal than a firearm. However, it appears that use of TASERs is not without risk, especially in certain groups, including the mentally ill. The risk of injury to vulnerable people with a mental illness from TASER weapons must be weighed against the risk that escalation to lethal force may cause if a person with an acute mental illness requires restraint. When police officers are carrying out their duties under mental health legislation it is recommended that TASERs be used only when an individual is imminently likely to sustain or to cause grievous bodily harm. This article recommends changes to the Western Australian Police TASER training programs and proposes mandatory medical assessments after the use of TASER restraint.     

The Continuing Value of Relief for Directors' Breach of Duty

The nature and scope of relief for directors in breach of their duties did not figure prominently in the Steering Group's fundamental review of company law. Little is proposed beyond removing one of the two pre-conditions for relief laid down in section 727 of the Companies Act 1985; the requirement of reasonableness. This article seeks to subject the relieving discretion to a more radical re-appraisal. Drawing upon the views expressed by its architects together with the current judicial approach adopted towards the provision, it is argued that its underlying rationale would be better met if the test for relief was based solely upon the court's determination of fairness. It will be demonstrated that such a model would better serve to bolster the fundamental tenets of transparency, simplicity and accessibility that underpin the approach of the Government's White Paper towards company law reform while also reinforcing the continuing value of relief.     

Legal narratives as significant news sources about mental illness and violent crime

Media coverage about people affected by mental illness is an area of research that is extensively examined. Many scholars argue that the media depicts people with mental illness as inherently violent and dangerous within sensational narratives. These depictions are criticized for reinforcing the social stigma and disadvantages many of the mentally ill face. The media does, however, require news sources and, in the context of crime and mental illness, the courts are a significant source. Through qualitative content analysis of Australian newspaper articles, this research examines an under-researched and incompletely theorized area. In doing so, it demonstrates that media depictions of some mentally ill offenders reflect and heavily draw upon legal narratives and what is argued in court about these offenders in the context of criminal responsibility and legal insanity.     

Toward an integration of economic and sociological approaches?

This article answers the question whether sociology of law and law and economics can be unificd into one integrated science. First, it is argued that an integration process inside law and economics has taken place, integrating most schools and partial analyses into one mainstream law and economics. Second, it is argued that there are no natural barriers against an integration of sociology and economics. Purely economic theories cannot and do not exist. What is calledeconomic analysis of law is basically a mixture of, for instance, 70 percent economics, 10 percent sociology, 10 percent psychology, and 10 percent other sciences. In addition, there is no such a thing as a purely sociological concept; concepts are sociological only in the sense that they are invented by people who call themselves sociologists.Nevertheless one should not expect that such a richer social science will lead to fundamentally different predictions and policy recommendations than those derived from the current simplistic economic analysis of law. The aspects studied by sociologists but assumed away by legal economists to date have in most cases no influence on the determination of (optimal) legal rules or on the long-run effects of legal rules.     

论我国“精神卫生法”的称谓

我国2013年5月实施的《精神卫生法》以“精神卫生法”命名,这一称谓无法涵盖该法的全部规范、立法目的,容易将该法的社会法性质误解成行政法,还可能影响法的实施,与其他国家立法称谓的变化趋势相脱节.因此,基于明确立法目的,保护精神障碍者基本权利的社会法性质,顺应当今全体国民的精神健康追求,以及我国加入的国际人权公约等因素,我国现行“精神卫生法”宜正名为“精神健康法”.     

Family involvement, independence, and patient autonomy in practice

The legal debate about patient autonomy focuses mainly on mental capacity and provision of information. The influence of the family on the decisions of the competent adult patient has scarcely been discussed in English medical law. Dominated by the bioethical principle of individual autonomy, the law concentrates on the patient and takes an exclusionary stand regarding relatives. Hence, the aim of this article is to examine the attitude of English law towards the involvement of relatives when patients make decisions, and to investigate the views and experiences of patients and their relatives in reality. To fulfil this aim, a qualitative study was carried out in six NHS trusts in England. The study was based on in-depth interviews conducted with patients who suffer from long-term illnesses, and their relatives. In the interviews, patients stated that the relatives assisted them in making informed decisions about treatment. Patients said that relatives had an influence on the decision-making process and on the decision itself, but also reported that ultimately relatives left the final decision to the patient. The findings reflect a relational approach to patient autonomy. When making decisions about treatment, patients needed to know that their relatives would support them no matter what they decided. However, exceptional cases which demonstrated substantial familial influence suggest that the law should secure the patient's interest in making their own decisions. In light of these findings, it is argued that the current exclusionary attitude expressed in English medical law towards the role of relatives should be changed.     

Applications for release by Australians in Victoria found not guilty of offences of violence by reason of mental impairment

Much research in relation to mental illness and the law has concentrated upon when accused persons are entitled to avail themselves of the defence of not guilty by reason of insanity or mental impairment. However, the decision as to when persons found not guilty by such pleas should be released step by step back into the community involves difficult analyses of the risk of recidivism by persons who have committed serious acts of violence whilst mentally ill. This article analyses some 70 cases heard by the Supreme Court of Victoria in Australia since the jurisdiction to make such decisions has been transferred from the executive arm of government to the judiciary. The jurisprudence generated by the Victorian Supreme Court constitutes Australia's most developed law in relation to prediction of dangerousness. This article evaluates the different and subtle dynamics that have influenced the judges in an increasingly sophisticated way to grapple with the phenomenon of mental illness in deciding when persons who have already killed can safely be released from involuntary detention status within the confines of a forensic psychiatric institution back into the general community.     

The Mental-Mental Muddle and Work Comp in Oregon. II

To summarize, in the state of Oregon at this time, mental illness caused by employment is covered by workers' compensation insurance. There have recently been some legislative attempts to seriously restrict this and there probably will be some more in the future. As the law now stands, the job stress must be the major contributing cause as measured against any off the job stress. The on the job events producing the stress must exist in reality. A stress emanating primarily from a worker's misperception or paranoid thinking does not constitute an acceptable causative agent. Obviously it is not always that easy to distinguish between on the job causes and off the job causes and objective stresses and merely perceived stresses. And what about the individual who has faulty perceptions which lead to actions that provoke an objective response? As a psychiatrist, I am glad to see more recognition given to mental illness caused by the work place. I applaud the Oregon Supreme Court for pointing out that an organization has an obligation to somehow deal with stress-producing supervisors. I think we have to be on guard against those forces working through the legislature which try to minimize or deny the importance of mental illness. At the same time, though, we have to try to enlighten rather than confuse. Our expertise is in diagnosing and treating, not in constructing legal terminology. In my evaluation of the Leary case, I tried to explain to the best of my ability just what was going on.(ABSTRACT TRUNCATED AT 250 WORDS)     

Economic models of compensation for damage caused by nuclear accidents: Some lessons for the revision of the Paris and Vienna Conventions

In this paper the economic analysis of accident law is used to examine the liability for nuclear accidents. It is argued that the classic system of individual liability of a nuclear power plant operator with a financial cap on compensation and individual insurance by national pools is not effective. The current system leads to a too low compensation for victims and lacks an adequate internalization of the nuclear risk. Hence, it is argued that the economic analysis of law can provide useful insights for the revision of the Paris and Vienna Conventions on the liability for nuclear accidents. It is also argued that higher amounts of compensation can be generated only if the idea is accepted that all plants share the costs of an accident wherever it occurs. This could be realized through a mutual pooling system. Such a system could also be fitted into the revision of the Paris and Vienna Conventions.     

Maybe He's Depressed: Mental Illness as a Mitigating Factor for Drug Offender Accountability

Given the often perplexing relationship between mental illness and substance abuse among offenders, this article looks at how a juvenile drug court staff's presumptions of a youth's mental illness affect its decision-making process. Based on thirteen months of ethnographic fieldwork at a Southern California juvenile drug court, this article uses Manzo and Travers's "law in action" approach to analyze how the staff readjusts its application of normal remedies (a concept developed by Robert Emerson) designed to respond to a youth's noncompliance when it suspects mental illness may be influencing the youth's actions. In doing so, it highlights how court staff's considerations of youth mental disorders arise out of its everyday work practices. Furthermore, the article discusses how staff negotiations around a youth's mental illness create tensions for the juvenile drug court's accountability-based model of therapeutic jurisprudence, because assessments of mental illness tend to mitigate responsibility for a youth's behavior.     

Civil commitment in Turkey: reflections on a bill drafted by psychiatrists

Involuntary hospitalization of the mentally ill has been an issue that still remains outside the judicial system in Turkey. Despite the new Turkish Civil Code, which includes several articles relevant to involuntary psychiatric hospital admissions, there still appears to be a need for a comprehensive mental health law to address specific issues concerning civil commitment of the mentally ill. As a result of the lack of specific statutory regulation, an insufficient number of psychiatric hospital beds and limited appreciation of the safety risks involved in untreated mental illness, involuntary hospitalization remains an underutilized option by psychiatrists and the courts alike. In response to its concerned members, the Psychiatric Association of Turkey has appointed a task force to draft a proposed mental health law, entitled the "Psychiatric Patients' Bill of Rights." Although the draft suggests a model with emphasis on the right to psychiatric treatment, it also recommends close judicial oversight to prevent potential abuses of discretion by the system. However, this might present logistic problems in a country with already overburdened courts. Authors discuss the highlights of the draft within the context of Turkey's current cultural, social and judicial structure, and compare it to similar laws of other countries.     

Can international law improve mental health? Some thoughts on the proposed convention on the rights of people with disabilities

This paper examines the promise of the proposed Convention on the Rights of People with Disabilities to improve the position of people with mental illness. Proponents of the new Disability Convention argue that the state of human rights abuses experienced by people with disabilities is intolerable, that the existing international law is inadequate, that additional international law will increase the visibility of people with disabilities and will clarify the fundamental entitlement to equality, and that, as a result, the position of people with disabilities will be greatly enhanced. This paper questions the value of international law to achieve real change and warns against placing too much faith in the law. The potential of a new international law to rectify the wrongs experienced by people with psychiatric disabilities will depend on whether the new law specifically displaces the existing international law which undermines the rights of people with mental illness and on the final terms of the Convention with respect to recognition and enforcement. Ironically, it is the process of developing the Convention which has been empowering, and the utility of the new law will ultimately turn on the continuation of the momentum built through this process.     

We All Make Mistakes: A ‘Duty of Virtue’ Theory of Restitutionary Liability for Mistaken Payments

In contrast to the moral foundations of contract, tort, and the law of property, which are generally regarded as elements of Kantian ‘right’, the liability to return the value of mistaken payments is, it is argued, an example of the law's enforcing a duty of virtue, the legalisation of the duty of beneficence in a way similar (though not identical) to how the law might instantiate a duty of easy rescue. Accordingly, one of Birks's most cherished theses – that the law of unjust enrichment represents a distinctive element of private law – can be made out: it is distinctive in having an entirely different normative source: in virtue, not in right. But this result comes at a cost: (1) a legal system could function more or less justly without such a liability; (2) Birks's thesis that liability for mistaken payment is the archetype or paradigmatic case of liability for unjust enrichment would have to be abandoned; and (3) we would have to recognise that the ground of this liability is policy‐motivated.     

Memory for murder. A psychological perspective on dissociative amnesia in legal contexts

There is currently a complex and inconsistent state in the law relating to dissociation and dissociative amnesia (McSherry, 1998). Although dissociative amnesia in defendants is relevant to both competency to stand trial and criminal responsibility in principle, courts have typically assumed a skeptical stance toward such claims in practice. However, there is considerable evidence from both nonoffender and offender populations to support the validity of dissociative amnesia in defendants. Further, there is information available to aid in the evaluation of amnesia, such as the quality of the report itself and characteristics of the person reporting the amnesia (e.g., psychopathy). When consideration is given to the legal response to reports of dissociative amnesia by complainants, the situation becomes even more complex. While some courts have rejected recovered memory evidence, others have convicted defendants of historical offenses based on such evidence. In some cases, judges have argued that jurors should be left to decide on the validity of recovered memories based on their common sense and experience. The uncritical acceptance of the validity of repressed memories in complainants by many courts stands in stark contrast to the response to claims of amnesia from defendants. It seems apparent that the courts need better guidelines around the issue of dissociative amnesia in both populations. We think that the increasing scientific understanding of memory in the past decade (see Schacter, 1999) can meaningfully contribute to the development of such guidelines. Responsible, nonpartisan expert testimony from mental health professionals would be one step in the direction of rectifying the current state of law in regards to dissociation.     

On the Szaszian argument

The Szaszian argument claims that psychiatry is a rhetorical enterprise aimed at providing justification for involuntary treatment. Such treatment, the argument holds, is just when provided to those suffering from demonstrable brain lesions, but it is unjust in cases of "mental illness" because such "illnesses" lack objective histopathology and are therefore fictional. It is here argued that this distinction is irrelevant to the morality or immorality of involuntary treatment, since such treatment inevitably rests on a subjective determination of competency or dangerousness, which is not rendered substantially more objective by the criterion of histopathology. The Szaszian argument subscribes to a naturalistic fallacy in this regard, which leads it to inconsistencies in its philosophy of mind.     

Denationalization and the Very Idea of Democratic Constitutionalism: The Case of the European Community

Within the current debates about Euro‐constitutionalism, the conventional options are either to defend a vision of the European Union (EU) which separates global economic law from national sovereignty, and thus relies on the legitimizing powers of free markets, or to regard the legitimation problem (at least under current conditions) as beyond solution: This view argues that any further progress towards an ever closer Union would inevitably increase the legitimation deficit and that therefore the capacity for political action of the nation state should be protected or restored. This paper seeks to break the stranglehold of the, as is argued, false dichotomy (global markets vs. national democracy), and it argues that an extension of democracy beyond the nation state is possible.     

Choosing to limit choice: Self-binding directives in Dutch mental health care

In certain cases of chronic mental illness (for example bipolar disorder) a self-binding directive or Ulysses contract may be a helpful intervention to prevent harm to the person him- or herself and/or others. By choosing such an arrangement, the patient can indicate when and how mental health professionals may intervene against his or her will and provide indicated care which may lead to an improvement of the patient's mental condition. In the Netherlands, since 2008 the Compulsory Admissions Act has been amended and now includes a paragraph on self-binding. Starting from the Dutch debate and statutory regulation of self-binding in mental health care, a number of issues with broader relevance are discussed, particularly as these pertain to the legal regulation and juridification of self-binding. It is argued that too many detailed rules are a threat to increasing patient empowerment.