精神病人刑事责任能力相关问题研究

受“有病无罪”观念的错误影响,长期以来法学领域很少开展对精神病人“犯罪”的研究,致使形成“精神病学鉴定专家裁判精神病人是否犯罪”的态势,忽视了对社会公共安全的保护。笔者简明扼要地介绍了美国司法精神病学近几十年的变迁,以此为参照,发表了对精神病人犯罪研究的一些看法。     

Forensic psychiatry in China

This article reviews the legal basis for the development of forensic psychiatry in China, the organization of clinical assessments, and training of forensic psychiatrists. Regulations for the management of patients in Ankang hospitals and the role of forensic psychiatrists within the Criminal Justice system are described. The primary role of forensic psychiatrists is to provide expert opinions on competence to stand trial and criminal responsibility in criminal cases. They are increasingly involved in civil court proceedings and tribunals at the request of a range of official agencies. The clinical cases assessed by Chinese forensic psychiatrists are very similar to those of their counterparts in Western countries, but the organizational and legal framework for these assessments reflects a very different system that has evolved independently.     

The patient who refuses medical treatment: a dilemma for hospitals and physicians

This article reviews recent case and statutory law concerning patients who refuse medical treatment. Among the special cases considered are: the competent adult patient who refuses treatment on religious or privacy grounds; the incompetent patient whose own wishes were never expressed, but whose family refuses treatment; the incompetent patient who expressed the wish not to be treated before becoming incompetent; and parents who refuse treatment on behalf of their child. It is pointed out that recent court decisions have blurred the distinctions between "extraordinary" care and "ordinary" care and between withholding and withdrawing life-sustaining treatment. Reference is made to the recent trend toward allowing the family of an incompetent patient to assert the patient's rights without court intervention either in the form of direct court order or through guardianship proceedings. Finally, the implications of these legal developments for health care institutions are discussed. A protocol pertaining to incompetent patients is proposed. Health care institutions are encouraged to develop formal policies for dealing with patients who refuse treatment, and to work with their professional associations in lobbying for legislation which will clarify the law in this area.     

The impact of the right to refuse treatment in a forensic patient population: six-month review

In December of 1987, the Wisconsin supreme court held that all involuntarily committed mental patients in the state had the right to refuse psychotropic medication unless a court held that they were incompetent to make treatment decisions. The authors studied the effects of this decision in a 165-bed forensic hospital over the first six months after implementation of the decision. They found that 29 percent of patients already on psychotropic medication initially refused further treatment as opposed to 75 percent of newly admitted patients. Of refusers, 32 percent eventually resumed taking medication voluntarily; courts overturned the refusals of all the 51 percent who maintained their refusals, after an average delay of over a month. The length of procedural delays actually increased over the six months of the study as the courts learned of the decision. The authors compare their findings with other reported studies of implementation of right to refuse treatment decisions and discuss differences between the right to refuse treatment for civilly and criminally committed patients.     

The role of the defense psychiatrist in workmen's compensation cases

Tomorrow's psychiatrist should be more cognizant, competent, and comfortable in forensic science matters. Psychiatric cases are increasingly the subjects of litigation, but justice in the court depends on able advocacy by all parties. Advocacy for patient-plaintiffs is more similar to customary clinical roles than is advocacy for defendant insurance companies, which nevertheless are as needful of competent psychiatric experts as patient-plaintiffs if justice is to be done. Ironically, defense psychiatrist can do much to help patient-plaintiffs if they understand their roles correctly. Since legal systems are designed to produce justice, not therapy, the forensic competence of future psychiatrists will help to make litigation more therapeutic and just for patients. This paper describes the peculiarities of psychiatric work in litigated workmen's compensation cases, focusing on the role of the defense psychiatrist. We will highlight the constructive and therapeutically gratifying potentials of this work. Greater familiarity with the process will help to enlist the interest and participation of psychiatrist in workmen's compensation cases for the ultimate benefit of the patients and improvement of the legal system.     

信号检测论视角下法医精神病鉴定意见的评判

鉴定意见准确是高质量法医精神病鉴定的必然要求。然而,法医精神病鉴定是由鉴定人来实施的,在鉴定过程中,鉴定人需要进行一系列判断和识别,鉴定意见是鉴定人一系列识别和判断的结果。探讨法医精神病鉴定中鉴定人识别和判断活动的特征,并结合信号检测论所揭示的人进行识别和判断活动的心理学规律,探讨法医精神病鉴定意见准确性的影响因素,以及由信号检测论所揭示的规律对于正确认识法医精神病鉴定的准确性、提高法医精神病鉴定质量的指导价值和意义。     

Training of legal professionals in DNA evidence

The South African Criminal Legal System is based on Roman Dutch law. Court proceedings are led by a single presiding officer of the court. Prosecutors and defence advocates present the court with evidence in an adversarial manner. This system has inherent advantages and disadvantages and therefore the training of legal professionals in handling DNA evidence in court is important. The prosecutors resort under the National Prosecuting Authority and the defence advocates act independently or e.g. under the auspices of Legal Aid South Africa.Education curricula of legal professional do not include forensic science evidence. Principles such as evidential value in the forensic context are not addressed. Training of legal professionals with our Essential DNA Evidence™ Course has been a multiplier of forensic science knowledge in the legal profession in South Africa. We present prosecution and defence perspectives in an unbiased manner, compensating for the possible subjective interpretations of evidence that may be presented in court. Forensic evidence is subsequently carefully evaluated prior to being court presentation thus improving court efficiency, and allowing for a more focussed approach to the presentation of evidence. Approaches to the customisation of course content that adds value has been identified via evaluation of training programmes.Experience has shown that legal professionals have the ability to incorporate relatively complex scientific concepts into their legal arguments if provided with the appropriate training opportunity. Appropriate training in DNA evidence has made the court process more effective, both in terms of time and costs, and ultimately serves justice.     

Ethical analysis of a curious event of a forensic case becoming an involuntarily hospitalized psychiatric patient

It is not uncommon in forensic psychiatry that the duty to care for the patient conflicts with the responsibility to the court, or the duty to protect the public from harm from the potentially dangerous patient-offender. This paper exemplifies the scenario of what happens when the line between forensic and clinical psychiatry is crossed and whether crossing that boundary can be justified. Ethical discussion also embodies and clarifies the issues of unjustified violation of the patients’ autonomy and an undue infringement on their right to liberty on the arbitrary basis of existing or perceived mental illness. The paper provides an in-depth analysis of the issues of physicians’ conflicting duties, vulnerability of patient-offenders, and their human rights in the light of court orders and involuntary hospitalizations.

I argue that in order to promote ethical decision-making we must establish clear rules and guidelines for psychiatric practice, separate conflicting roles, and provide sufficient training of health-care professionals regarding topics of human rights and legislation governing clinical and forensic psychiatric practice. Empowering patients and enhancing their rights to autonomy and liberty can also be potent tools of promotion and protection of their human rights and prevention of ethical breaches in practice.     

What constitutes a psychiatric emergency: clinical and legal dimensions

In true medical emergencies, informed consent is presumed or implied without application of the usual standard. In the litigation over the right to refuse treatment in psychiatry, a limited right for involuntarily committed patients to refuse treatment has been upheld, absent a finding of a psychiatric emergency. Increasingly, clinicians may find that their sole extrajudicial option in instituting treatment over the patient's objection is in invoking a psychiatric emergency. The purpose of this communication is to discuss the clinical and legal issues in defining and invoking a psychiatric emergency in treatment refusal. The substantive and procedural issues in the use of the emergency exception in treatment refusal are discussed with recommendations for their use in clinical practice.     

英美两国对精神病人刑事责任能力评判的演变

司法精神病学是法学的一个分支学科,其诞生和演变与法学的主旋律始终保持一致。精神障碍者刑事责任能力问题是司法精神病学的主要构成部分,英国1843年的麦克·纳顿条例是专门就精神障碍者刑事责任能力问题的法律规定,它对英美法系和大陆法系国家的相关立法都产生了巨大深远的影响。美国最近20多年处理违法精神病人的法律改革对现代诸国的司法精神病学完善具有相当大的影响力,所以研究英美两个国家这一方面的司法精神病学的历史和现状对推动我国司法精神病学的进步意义重大。     

Jones v. Gerhardstein: the involuntarily committed mental patient's right to refuse treatment with psychotropic drugs

The question of whether an involuntary committed mental patient has a fundamental right to refuse treatment with psychotropic drugs continues to be a subject of much debate. Over the past twenty-five years, psychotropic drugs have become the most common form of treatment for the mentally ill. For many patients, these drugs provide substantial benefits; for others, however, they produce severe, sometimes debilitating, side effects. Because of the possibility of serious harm to the patient and because of the potential for abuse of drug treatment by psychiatric staffs, the mental health bar generally has argued for increased procedural protection for mental patients. In Jones v. Gerhardstein, the Wisconsin Supreme Court responded to these concerns by requiring that a judicial hearing be held on the issue of a patient's competency to refuse treatment before the attending physician may administer medication without the patient's consent. This Note discusses the controversy between the legal and medical communities over treatment refusal by mentally ill patients in light of the impact of the Jones decision on institutional practice and on refusing patients. The author argues that the strictly rights-based analysis used by the Jones court has done little to benefit involuntarily committed mental patients. The author suggests alternative ways of approaching treatment refusal that might be more responsive to the distinctive needs of the mentally ill.     

"Just say no!": the right to refuse psychotropic medication in long-term care facilities

This article examines the rights of patients, particularly incompetent patients, in long-term care facilities to refuse psychotropic medication. In exploring this topic, the author focuses on the provisions of the Omnibus Budget Reconciliation Act of 1987 which was part of a Congressional solution to afford greater protection to residents of long-term care facilities. Because the legislation has not lived up to expectations, the author advocates for further legislative action to protect the dwindling bundle of rights of the elderly.     

Ethical issues in child and adolescent forensic psychiatry: a review

Ethical challenges in child and adolescent forensic psychiatry arise, on the one hand, from the dilemmas commonly faced in forensic psychiatry with adult patients, such as the dual role of the forensic psychiatrist, questions of criminal responsibility, autonomy and competence and involuntary treatment, and, on the other, from the immaturity and dependent position of the minor. Child and adolescent forensic psychiatry deals with minors involved in crime, not only as offenders, but also as victims. In this review, we attempt to describe ethical challenges in child and adolescent psychiatry using as a frame of reference the principles of biomedical ethics according to Beauchamp and Childress.     

Litigious paranoids and the legal system: the role of the forensic psychiatrist

Forensic psychiatrists should be aware of the many ways that paranoid individuals may present within the legal system. Litigious paranoids often utilize the legal system as a vehicle to act out their fantasies and delusional preoccupations. Imaginary grievances, accusations based on delusional ideation, and irrational vindictiveness toward imagined persecutors may find full expression in any number of legal contexts. They can defeat the rational and legitimate objectives of the legal system, enmesh innocent and unsuspecting victims in nightmarish legal entanglements, and subvert the process of justice. The forensic psychiatrist can assist the court by alerting it to the presence of paranoid illness in parties or witnesses and by clarifying what the effects of such psychopathology are and what the most favorable response should be. Three legal contexts wherein paranoid individuals may present within the legal system are discussed: the "hypercompetent" defendant, the paranoid party in a divorce proceeding, and the paranoid complaining witness. Case illustrations are presented for each legal context. Two issues are discussed: the dividing line between paranoid ideation (and its impact on the legal process) and so-called "normal" thinking (and its objective to use the legal process to obtain certain ends); and the degree to which psychiatric opinions in this area should influence the way an individual's case is handled by the legal system. The author concludes that, despite the costs involved, it is preferable that even paranoids have their "day in court."     

The relationship between the court and the doctor on the issue of an inpatient's refusal of psychotropic medication

New procedures, tailored after such court decisions as Rogers v. Commissioner of the Department of Mental Health, have restricted the doctor's ability to treat psychiatric inpatients with psychotropic medication and have increased the protection of a competent patient's right to refuse. This study investigates how the relationship between the doctor and the court has adapted to these new procedures. All 40 court cases of a maximum security forensic hospital over a two-year period were reviewed. Results suggest that the new procedures have had no dramatic effect upon either the treatment patients receive or the doctor-court relationship. While abstract arguments both in favor of and against these new procedures can be drawn from the same data, the concrete relationship still remains poorly understood.     

Sexual assault,irresistible impulses,and forensic psychiatry in Sweden

After forensic psychiatry was firmly established in Sweden in the 1930s, many rapists and individuals charged with assaulting children underwent a forensic psychiatric examination. The physicians found that most of them had not been “in control” of their senses or not “in complete control” of their senses at the time of the crime. If the court ordered a forensic psychiatric examination, the defendant had a very good chance of either being discharged or having his sentence reduced considerably. By the 1950s psychological perspectives began to dominate in forensic psychiatry. In the forensic records of the 1950s we can notice a shift from a biomedical to a socio-psychological perspective, and crime was increasingly related to conditions that were not seen as mental derangement from a legal point of view. As a result, it became less and less common, from the 1950s onwards, for sentences to be commuted or defendants discharged.     

Doing justice to justice

Adshead's recognition that only when taken together can the many different conceptions of justice accommodate what is called for in the particularly demanding setting of forensic mental health care, is to be applauded. Each must be honoured and built into the systems of assessment and treatment that are the tasks of the forensic psychiatrist, she demonstrates. Adshead's far‐reaching revisions could resolve much that is troubling about the present practice of forensic psychiatry. Yet how much these revisions can overcome the moral dilemmas associated with dual roles in forensic psychiatry, is not so clear.     

The concept of free will and forensic psychiatry

This text examines how conceptions of free will impact on legal systems and forensic psychiatry: free will is generally regarded as a prerequisite for responsibility, criminal responsibility included, while forensic psychiatry to a large extent deals with the limits imposed on responsibility by mental disorder. First we discuss the question of whether there is and has been such an impact. The answer is yes: different conceptions of free will have inspired different systems of law and forensic psychiatry, as becomes clear when looking at the accountability doctrine as compared to the unique Swedish system rejecting this doctrine. However, there is no necessary connection between doctrines of responsibility and conceptions of free will, since the former primarily says something about when someone should be held responsible and the latter says something about when someone really is free in a sense relevant to responsibility. This leads to the second question: should conceptions of free will have an impact on law and forensic psychiatry? We argue: that they should not, given the implausibility the normative theory retributivism, which posits a direct connection between free will and punishment. More importantly, questions of free will are complicated and unresolved philosophical issues that are better left out of the everyday decision-making incumbent on the legal and psychiatric systems. Instead, we recommend using an empirically useful and gradual conception of autonomy to facilitate the determination of legal responsibility. This autonomy conception, being neutral on the question of free will, eliminates the need to take a stand on it.     

某商贸大厦地基基础工程质量司法鉴定的案例介绍

通过对某大厦地基基础工程质量的司法鉴定,发现其中存在严重的质量安全隐患,为法院提供了具有高度公信力的证据,为诉讼多年的疑案划上句号做出了应有的贡献,揭露了被告偷工减料、野蛮施工的丑恶行为,保障了受害者的合法权益,有力地维护司法公正,促进社会和谐稳定。建筑工程质量司法鉴定涉及着控辩双方较大的利害关系,鉴定资料和鉴定文书的庭审质证过程必然充满着对抗情绪,司法鉴定人更加需要在本职工作中坚持科学、严谨、客观、公正的基本原则。