精神病强制收治与人身自由权

精神病强制收治涉及医学及法律相关问题。作者认为,为维护公民人身权利应对精神病强制收治运用法律加以规制。为维护人权需以法律规范精神病的鉴定,防止其滥用。     

国家有义务消除公民“被精神病”的恐惧

"被精神病"的症结在于公民人身自由权被漠视。法律属性上,精神病患者被强制收治行为属于对公民人身自由的限制行为。而人身自由为公民的基本权利,并属于法律保留事项。但遗憾的是,迄今我国尚无一部完整的涉及精神病患者人身自由限制与保护的独立性法律。独立法律的缺位与地方性法规的越位,构成了我国精神病患者被强制收治的法律基本现状,而部门规章则为强制收治推波助澜。国家有义务消除公民"被精神病"的恐惧。精神卫生法的制定是我国当前消除"被精神病"的当务之急;严格设置非自愿入院与治疗启动程序是消除"被精神病"的有效阀门;一套积极作为的国家机关保护机制是消除"被精神病"的关键。此外,可借鉴台湾经验,设置保护人制度。     

精神病司法鉴定的多维分析

精神病司法鉴定既包含生物学或者医学的知识,又包括法学的知识,是医学与法律的结合。对于精神病的司法鉴定,不仅涉及技术问题,而且伦理道德意识或者权利意识也深蕴其中。因此,以权利为视角对精神病司法鉴定进行分析,并且在权利的基础上达到精神病被告人和国家、社会以及受害人的利益平衡,是一种趋势,也是一种追求。     

关于“被精神病”现象国内外现状的文献综述

精神病人,作为社会特殊群体备受歧视与偏见,长期以来被大众所忽视,从而造成立法的缺失和管理的缺位,也因此致使真正需要医治的精神病患者得不到及时的收治,而一些正常人反而"被精神病"。"被精神病"的最终症结在于精神病强制医疗程序的不健全。本文通过对比研究国内外关于精神病人强制收治方面的法律规定,以期能为我国精神病强制医疗程序的进一步健全献计献策。     

司法精神病鉴定中的法律意识

探讨司法精神病鉴定如何体现甚律意识，讨论了司法精神病鉴定的属性、法律依据、法律要求：提出了司法精神病鉴定体现法律意识的具体做法。     

美国精神病辩护制度研究

对于不负刑事责任的精神病人应当免除处罚是刑事司法的一项原则,由此诞生出精神病刑事辩护制度。精神病辩护起源于英国,在美国得到继承与发展。美国虽然建立了一套比较完善的精神病辩护制度,但是,精神病辩护的存废一直存在争议;精神病辩护的法律标准一直处于发展变化当中,联邦法院与州法院系统之间也采用了不同的法律标准;精神病辩护的审理包括精神病辩护的提出与审理程序、证明责任分配与证明标准、专家证人的作用以及对精神病犯罪者的裁定与处理等重要内容。研究美国精神病辩护制度,可以为我国构建精神病辩护制度提供借鉴。     

浅谈在民事诉讼中精神病鉴定的研究

近年来在民事领域出现了很多利用精神病侵犯公民合法权益的不法现象,使民事诉讼中关于精神病鉴定的法律缺失这一矛盾空前严峻。法律的不完善使得公民的合法权益不能得到有效的保护,更无法维护正常的社会秩序。故本文拟对此类问题做简要剖析并提出建议。     

感应性精神病的司法鉴定

感应性精神病临床上较少见，司法鉴定实践中更为罕见，有关感应性精神病司法鉴定的文献报道不多。本文结合具体案例就感应性精神病的医学诊断、鉴别要点和法律能力评定等问题进行讨论，供同道们参考。1案情摘要被鉴定人张某于1997年12月与其兄因家庭纠纷而发生争吵和殴打，张某的鼻骨被打成骨折，经法医鉴定为轻伤。为此，张某与其妻李某四处奔走，要求对此作出处理，但对各级公安机关的处理意见均不满意，并认为公安机关有人在故意刁难。1998年间月22日，张某夫妇出走二个月，自称外出避难，并怀疑有一批人跟踪、谋害他们，故～路寄发控告…     

精神病犯服刑能力评定量表研究

目的制订符合中国法律体系的精神病犯服刑能力评定量表。方法根据鉴定实践,结合中国法律,研究者首先创建了称为“精神病犯服刑能力评定量表”的评定工具,然后再回顾性运用该工具,通过诊断性实验,对该工具的信度、效度及实用性进行了检验。结果该量表同质性信度为0.8779,量表评定与专家评定一致性为0.909,除了阴性似然比为0.0683,其他诊断性指标均大于0.80。结论精神病犯服刑能力评定量表具有较好的实用性。     

精神病鉴定程序的启动——以精神病事件的频发现象为背景

精神病事件的悲剧在我国频频发生已是不容忽视的问题。其根源之一是相当部分精神病患者或疑似精神病人未能进行精神病鉴定,因而未能确定其应当按照精神病进行医治以及落实其监护问题。人们之所以缺乏启动精神病鉴定程序的意识和行为,立法的缺失与缺陷是其主要原因。为此,我国应当在法律层面确立精神病鉴定制度,并将精神病鉴定程序的启动作为其重要内容,对精神病鉴定的适用范围、精神病鉴定程序的启动主体、委托或申请精神病的程序要求以及鉴定费用等问题作出合理的规定。     

论中国死刑案件中的精神病抗辩

随着权利话语的流行与国家对被告人权益保护的增强,中国死刑案件中的被告方在庭审阶段频频提出精神病抗辩,意图减轻罪责或不负刑事责任。然而,实践中却显示出如下悖论:被告方虽时时提出抗辩,但法庭却不愿启动精神病鉴定程序。这一现象的原因在于:当前被告方提出精神病抗辩的证明责任分配不明;被判无罪精神病人的监管难题与强制治疗措施缺乏;精神病鉴定一再反复导致法官无以判案等等。因此,在我国近年越来越重视死刑案件审判程序的背景下,有必要重构被告人精神病抗辩的合理制度,使其在维护被告人正当权益的前提下也不至于无章可循、变得过度泛滥。     

"Insanity" in civil law

The issue of "insanity" is rarely alluded to in the area of civil law. As a consequence, the legal standard for insanity is not clearly understood by many psychiatrists. The standard derives from case law and is based upon statutory law in the criminal sector. A civil case will be presented where the question of "insanity" was raised. In this case an individual committed suicide and his insurance company refused to pay the beneficiaries of his life insurance policy based upon a provision in his policy that excluded payment in situations of suicide. His beneficiaries sued, claiming that the deceased was insane at the time of his suicide and therefore not responsible for his actions. The standard for insanity in New Jersey and the reasoning of the psychiatrists will be presented.     

Insanity, methamphetamine and psychiatric expertise in New Zealand courtrooms

The use of methamphetamine in New Zealand has increased significantly over the last decade. Due to the potential of methamphetamine to induce, exacerbate and precipitate psychotic symptoms, this drug has also taken centre stage in several criminal trials considering the sanity of defendants. Highly publicised and often involving contested expert evidence, these criminal trials have illustrated the limits of using psychiatric expertise to answer legal questions. This article considers the implications of such cases in light of material from a qualitative study that aimed to generate insights into the difficulties forensic psychiatrists and their instructing lawyers face when providing expert evidence on the relationship between methamphetamine, psychosis and insanity. It reports material from 31 in-depth interviews with lawyers and forensic psychiatrists and observation of one criminal trial that considered the relationship between methamphetamine and legal insanity. The findings are correlated with the clinical and medico-legal literature on the topic and subjected to scrutiny through the lens of "sanism". The article concludes that the continued use of forensic psychiatry to meet the legal objectives of insanity, where methamphetamine is involved, has the potential to reinforce sanist attitudes and practices.     

Insane Sex Offenders: Psychiatric and Legal Characteristics of Sexual Offenders Found Not Guilty by Reason of Insanity

There is little known about sexual offenders hospitalized under forensic commitment statutes such as not guilty by reason of insanity (NGRI). We conducted a chart review to delineate the demographic, clinical, and legal characteristics of NGRI sexual offenders (n = 68) committed to the California Department of State Hospitals—Napa, including 41 found NGRI for a sexual offense and 27 found NGRI for a nonsexual offense. The two groups did not differ significantly in their demographics, psychiatric diagnoses, victim characteristics, or recidivism risk as measured by the Static‐99R. Those found NGRI for a sexual offense were older at the time of their first criminal and first violent offense, younger at the time of their committing offense, and had fewer prior total convictions and sexual offense convictions. These findings may indicate that sexual offenders found NGRI for a sexual offense are less antisocial than those found NGRI for a nonsexual offense.     

'Manifest Madness': Towards a New Understanding of the Insanity Defence

This article introduces a new concept which can serve as a theoretical frame for understanding the way in which insanity is proved for the purposes of the criminal law. With reference to George Fletcher's concept of 'manifest criminality', it introduces the concept of 'manifest madness'. This concept constructs madness (a shorthand for the types of mental abnormality known to the criminal law as insanity) in criminal law as evident to lay observers, and its meanings, which are derived from collective knowledge of it, as encoded in the defendant's acts. Through an historical analysis of the way in which insanity has been proved in criminal law, the article argues that 'manifest madness' is useful for understanding how knowledge about insanity is structured in the criminal courtroom. The concept of 'manifest madness' provides a frame that incorporates evidentiary and procedural features of the insanity defence that have resisted systematic theoretical analysis.     

The psychiatrist's guide to right and wrong: judicial standards of wrongfulness since M'Naghten

In insanity defense litigation, the precise legal definition of wrongfulness is often critically important. References in the M'Naghten Rules to the appropriate standard of wrongfulness were ambiguous, resulting in a divergence of judicial opinion as to whether wrongfulness means legal wrong, subjective moral wrong, or objective moral wrong. This article reviews and analyzes these three judicial standards of wrongfulness in the context of case law from jurisdictions that follow each of the respective standards. The evolution of knowledge of right and wrong tests of criminal responsibility is traced back to its philosophical roots. Most psychiatrists claim no expertise in matters of morality or law. The American Psychiatric Association would bar psychiatric expert testimony on the ultimate issue of insanity, on the grounds that there are "impermissible leaps in logic" when psychiatrists opine on the probable relationship between medical concepts and moral-legal constructs. Whether or not they testify on the ultimate issue, psychiatrists should ascertain the applicable standard of wrongfulness in order to properly relate their findings to the relevant legal criteria for insanity and thereby enhance the probative value of their testimony.     

Moral wrongfulness and insanity: a New Zealand sample

Introduction: This study sought to identify the common characteristics amongst defendants found legally insane, compared to those who were psychiatrically evaluated yet convicted of their crime. Method: A retrospective review of court-ordered psychiatric court reports and legal outcomes was conducted, for all defendants referred for insanity evaluations in the largest city in New Zealand (and its surrounding rural regions) for a 7-year period. Results: The majority (60%; 37) of those referred for evaluation were found legally insane. The opinion regarding moral wrongfulness was the single factor that differentiated successful insanity defendants from those who were found guilty. Conclusions: Despite the centrality of the insanity defence to forensic psychiatry, few studies internationally consider characteristics of those found insane, particularly in comparison with those who are found guilty. Psychiatrically evaluated defendants in this sample were relatively homogenous, perhaps due to the court liaison nurse screening process.     

The psychiatrist's guide to right and wrong: Part IV: The insanity defense and the Ultimate Issue Rule

In the wake of Hinckley, widespread public dissatisfaction with the role of psychiatrists in insanity defense litigation prompted Congress in 1984 to amend the Federal Rules of Evidence to prohibit psychiatric testimony on the ultimate legal issue of whether or not a defendant is insane. APA's Statement on the Insanity Defense served as the ably articulated premise for this evidentiary amendment. APA argued that in going beyond their psychiatric expertise by answering ultimate issue questions as to whether defendants are legally insane, experts are likely to confuse the jury and undermine public confidence in psychiatry. APA also asserted that there was an impermissible logical leap between scientific psychiatric inquiry and moral-legal conclusions on the ultimate issue of insanity. This article reviews the origins, history, and vicissitudes of the Ultimate Issue Rule and analyzes the Statement on the Insanity Defense from both a legal and psychiatric perspective on the issue of whether psychiatrists should answer the ultimate question in insanity cases. The analysis suggests that APA's conclusions are not supported on scientific or evidentiary grounds, but may be warranted as a policy consideration to safeguard the public image of psychiatry.     

精神病辩护：历史、社会与现实

精神病辩护制度在普通法国家具有长久之历史,特别在美国,其不仅具有比较完善的刑事责任能力法则,而且其精神病辩护的案件也备受社会各界瞩目。而精神病辩护制度、相关立法或者司法实践活动并不是与世隔绝、生活在真空中的产物,其受到社会、政治、伦理道德等各种因素的影响。同时,即使在精神病辩护制度最为发达的美国,与人们印象中不同的是,实际上精神病辩护并未获得多大的成功,从而形成想象与现实的落差。对于我国而言,应从精神病辩护制度之历史、社会与现实多个视角或者因素考虑,从而确立一种渐进的或者改良的中国刑事责任能力法则或者辩护制度。     

Deconstructing the Criminal Defence of Insanity

The significance of this article is in its deconstruction of the criminal insanity defence in a meta-legal critical context. The article’s objective is to critically review beliefs that the insanity defence was designed solely for public protection from insane violent people, or, for criminal deterrence. Arising from the long and continued use of the Roman Law concept of non compos mentis, the question arises as to what has become of the practical meaning of the term “insanity”, when used as a defence. The article tries to show that the defence of insanity is a public act of judicial denunciation against the accused, while the accused may have no effective responsibility for the crime. Argument begins with a critical discussion on the character of common-place denunciation as an appeal to public agreement. Then, it follows how the idea of “manifest criminality”, of the 1800s, might be cognate to modern ideas of “manifest madness”, linking into the origins of the English special verdict of insanity. This will allow a short critical analysis of the M’Naghten Case. Argument is completed with analysis of a psychologists’ expert construct of insanity and its relationship to jury perception. The article will suggest strongly that arguments based on the common law rules of insanity tend to expose juries more to denunciation of the accused, than to a reasoned account of the nature of his insanity and to the defects in his responsibility. Duly persuaded jurors would tend to acquiesce and participate in the denunciation of an accused person, whose unusual and unhealthy behaviours emanated from his sufferings by dint of his unbearable circumstances.