精神障碍患者约束和隔离措施的法律规制

约束和隔离是严重剥夺精神障碍患者人身自由的强制措施。约束和隔离实施中所存在的非人道性、危险性和负面效果使得该措施饱受争议,因而法律只允许在例外情况下使用约束和隔离措施,并对其实施条件和程序予以严格限制。即,在实体上明确约束和隔离措施的适用条件和情形,在程序上明确约束和隔离措施的实施步骤,从而构筑起约束、隔离的法律规制体系。     

Methodological issues in monitoring the use of coercive measures

PurposeIn many European countries, initiatives have emerged to reduce the use of seclusion and restraint in psychiatric institutions. To study the effects of these initiatives at a national and international level, consensus on definitions of coercive measures, assessment methods and calculation procedures of these coercive measures are required. The aim of this article is to identify problems in defining and recording coercive measures. The study contributes to the development of consistent comparable measurements definitions and provides recommendations for meaningful data-analyses illustrating the relevance of the proposed framework.MethodsRelevant literature was reviewed to identify various definitions and calculation modalities used to measure coercive measures in psychiatric inpatient care. Figures on the coercive measures and epidemiological ratios were calculated in a standardized way. To illustrate how research in clinical practice on coercive measures can be conducted, data from a large multicenter study on seclusion patterns in the Netherlands were used.ResultsTwelve Dutch mental health institutes serving a population of 6.57 million inhabitants provided their comprehensive coercion measure data sets. In total 37 hospitals and 227 wards containing 6812 beds were included in the study. Overall seclusion and restraint data in a sample of 31,594 admissions in 20,934 patients were analyzed. Considerable variation in ward and patient characteristics was identified in this study. The chance to be exposed to seclusion per capita inhabitants of the institute's catchment areas varied between 0.31 and 1.6 per 100.000. Between mental health institutions, the duration in seclusion hours per 1000 inpatient hours varied from less than 1 up to 18 h. The number of seclusion incidents per 1000 admissions varied between 79 up to 745. The mean duration of seclusion incidents of nearly 184 h may be seen as high in an international perspective.ConclusionCoercive measures can be reliably assessed in a standardized and comparable way under the condition of using clear joint definitions. Methodological consensus between researchers and mental health professionals on these definitions is necessary to allow comparisons of seclusion and restraint rates. The study contributes to the development of international standards on gathering coercion related data and the consistent calculation of relevant outcome parameters.     

PHYSICAL EDUCATION: AMENDING THE INDIVIDUALS WITH DISABILITIES EDUCATION ACT TO RESTRICT RESTRAINT AND SECLUSION IN PUBLIC AND PRIVATE SCHOOLS

There are no federal laws restricting the use of restraint or seclusion in public or private schools. Such laws exist at the state level, but the specifics vary from jurisdiction to jurisdiction. Federal legislation is necessary in order to ensure that students are not treated differently in each state based on legislative disparities between those states. The lack of a uniform standard for restraint and seclusion subjects students, a disproportionate number of whom have disabilities, to unreasonable physical control by other persons. These practices convey punishment, fear, abandonment, and provide little positive benefits. The amendment proposed in this Note will ensure that seclusion and restraint are only used when the student poses a direct threat to the health or safety of him or her self or others. Staff must be trained in the safe and proper use of these procedures so that they are performed in a reasonable manner, including utilization for a limited amount of time and the exhaustion of positive disciplinary alternatives prior to the utilization of these procedures. Furthermore, parental consent to the use of these procedures is imperative.     

Medicaid program; use of restraint and seclusion in psychiatric residential treatment facilities providing psychiatric services to individuals under age 21. Health Care Financing Administration (HCFA), HHS. Interim final rule with comment period

This interim final rule with comment period establishes a definition of a "psychiatric residential treatment facility" that is not a hospital and that may furnish covered Medicaid inpatient psychiatric services for individuals under age 21. This rule also sets forth a Condition of Participation (CoP) that psychiatric residential treatment facilities that are not hospitals must meet to provide, or to continue to provide, the Medicaid inpatient psychiatric services benefit to individuals under age 21. Specifically, this rule establishes standards for the use of restraint or seclusion that psychiatric residential treatment facilities must have in place to protect the health and safety of residents. This CoP acknowledges a resident's right to be free from restraint or seclusion except in emergency safety situations. We are requiring psychiatric residential treatment facilities to notify a resident (and, in the case of a minor, his or her parent(s) or legal guardian(s)) of the facility's policy regarding the use of restraint or seclusion during an emergency safety situation that occurs while the resident is in the program. We believe these added requirements will protect residents against the inappropriate use of restraint or seclusion.     

Medicare and Medicaid programs; hospital conditions of participation: patients' rights. Final rule

This final rule finalizes the Patients' Rights Condition of Participation (CoP) which is applicable to all Medicare- and Medicaid-participating hospitals and contains standards that ensure minimum protections of each patient's physical and emotional health and safety. It responds to comments on the following standards presented in the July 2, 1999 interim final rule: Notice of rights; exercise of rights; privacy and safety; confidentiality of patient records; restraint for acute medical and surgical care; and seclusion and restraints for behavior management. As a result of comments received, we have revised the standards regarding restraint and seclusion and set forth standards regarding staff training and death reporting.     

Seasonal variation of seclusion incidents from violent and suicidal acts in forensic psychiatric patients

BackgroundA seasonal variation in violence and suicidal behaviour has been reported in several studies with partially congruent results. Most of forensic psychiatric patients have a history of severe violent behaviour that often continues in spite of regular treatment. In the forensic psychiatric hospital environment aggressive and suicidal acts are often sudden and unpredictable. For reasons of safety, rapid and intensive coercive measures, such as seclusion and restraint, are necessary in the treatment of such patients.ObjectiveTo examine whether these involuntary seclusions have a seasonal pattern, possibly similar than the reported seasonal variation in violence and suicidal behaviour. By investigating the possibility of a seasonal variation of seclusion incidents from violent and suicidal acts, it may become possible to improve the management of forensic psychiatric patients.MethodsThe hospital files of all secluded patients at Niuvanniemi Hospital from 1 January 1996 to 31 December 2002 were examined. In total, 385 patients (324 male and 61 female) were identified as being secluded at least once in 1930 different incidents (1476 from male and 454 from female patients). Seasonal decomposition and linear regression with dummy month variables were used to examine the possibility of annual variations for seclusions.ResultsThe seasonal variation of involuntary seclusion incidents was statistically significant. According to the linear regression model, most of the seclusion incidents, affecting many different patients, began in July and August, and were concentrated throughout the fall until November. The sum of all seclusion days was lowest in January and highest between July and November (difference + 31% to + 37%).ConclusionsThese findings are mainly in agreement with results from other studies on seasonal variation and violent behaviour. The allocation of staff for late summer and fall might enhance the management of forensic psychiatric patients, thus leading to possible decreases in seclusion incidents. The factors affecting violent, aggressive and suicidal behaviours are complex and more investigation is needed to understand, identify, intervene and effectively reduce such behaviours.     

A comparison of seclusion rates between intellectual disability and non-intellectual disability services: the effect of gender and diagnosis

Introduction: The use of seclusion as a means of managing the extreme behaviours forensic patients in secure settings is a controversial yet often common practice, despite there being little evidence that seclusion as a practice has any significant therapeutic value for the patient. The aim of this study was to explore the use of seclusion and whether this differs as a function of gender and diagnosis across secure services. Method: This study collated data from 11 medium and low secure hospitals that admit male and female patients, with some services providing services for patients with intellectual disability (with or without co-morbid disorders), and others for patients with mental illness and/or personality disorder only. Results: Both gender and diagnosis were associated with differential seclusion rates. Seclusions were three times longer for patients in the non-ID compared to the ID service. Male seclusions (for any diagnosis) were around twice as long as those in female services. Female ID patients spent significantly less time in seclusion compared to other groups. Female ID was associated with two to three times the number of seclusion events per patient compared to other groups. No statistically significant association between the type of service and the reason for a patient being secluded. Conclusions: A range of organisational factors that determine the use and duration of seclusion are cited and merit further exploration. High rates of psychiatric co-morbidity and the complexity of patients admitted to services may also mediate risk and use of seclusion. The study supports the use of early intervention techniques and the adoption of positive behaviour support.     

The influence of staffing levels on the use of seclusion

This study focussed on the relationship between the use of seclusion and staff characteristics, such as number of nurses on shift, male-female staff ratio, level of education and level of work experience. A retrospective analysis of staff characteristics was applied to administrative data from ten wards in four mid-sized general psychiatric hospitals in the Netherlands. The data show that two variables were associated with seclusion rates: the male-female staff ratio and the variability in team's work experience. More female and less male nurses in a shift and less variability in team's work experience predicted an increase in seclusion rates.     

反思刑法谦抑主义

谦抑性考察已成为当下评判刑事立法和刑事司法的基础性分析工具。与此相应,我国晚近以来的历次刑法修正案所反映的犯罪化进程被不少学者反复诟病为"不谦抑"。刑法谦抑主义虽然彰显了古典刑法保障个人权利的理念,但是谦抑性并非一个价值中立、超越时空、至高无上的刑法原则。直面现代社会刑法法益保护与人权保障的内在紧张关系,仅从单一化的谦抑主义维度去评判刑法发展的得失是偏颇的。谦抑性应该还原为罪刑法定原则之下用来说明和贯彻罪刑法定原则的子原则。反思刑法谦抑主义,并非要放弃或终结对刑法谦抑性的追求,而是主张在肯定谦抑理念的同时对谦抑性在立法和司法、设罪和配刑等不同场域作不同的把握。刑法的发展需要在法益保护与人权保障中寻求一种张弛有度的动态平衡,而绝非单向度的谦抑主义。     

宪法保留：对基本自由权利限制的限制原则

法律保留原则要求某些重要事项必须留给立法机关以法律的形式加以规定,目的是约束行政权,防止行政权滥用,并在客观上要求司法机关依法裁判;然而,宪政的本质特征之一是有限政府的理念,即使是立法机关的权力本身也应当是有限度的。实际上,宪政国家违宪审查制度的普遍确立正是主要基于对立法权滥用的矫正;而我国从依法治国到依宪治国思路的转变也在事实上承认了立法权本身存在滥用的可能。因此,从法律保留到宪法保留,是保障人民基本自由权的重要原则,这一原则立基于对多数决暴政的恐惧和对有限政府理念的信奉,它在一定程度上杜绝了宪法一手承认人民基本自由权利,而法律的另一手却又予以剥夺的弊病。     

Patients' rights. Final rule

This final rule amends Department of Veterans Affairs (VA) medical regulations to update the patients' rights regulation by bringing its provisions regarding medication, restraints, and seclusion into conformity with current law and practice. The changes are primarily intended to clarify that it is permissible for VA patients to receive medication prescribed by any appropriate health care professional authorized to prescribe medication, and that it is permissible for any authorized licensed health care professional to order the use of restraints and seclusion when necessary. The rule also makes nonsubstantive changes in the patients' rights regulation for purposes of clarification.     

法律保留实质是权利保留

自"权利"概念提出以来,权利保留方式就一直是宪政理论和实践所关注的话题之一,它历经了人民自己保留、宪法保留等不同形态。到19世纪末,德国行政法学家奥托.迈耶基于德国宪法基本权利条款缺乏效力和司法审查作用微弱之宪政实践,提出了法律保留,其实质是以行政法所关注的问题及行政法语言重述权利保留。     

工作场所外待命时间劳动法属性认定的困境突破:劳动基准法和劳动合同法的共同应对

雇员按雇主指示在工作场所外待命能否被认定为工作时间及应否获得工资等权益保护,是劳动法上的典型难题。这一问题可分别从劳动基准法和劳动合同法两个视角认识和解决:雇员在工作场所外待命,乃是受雇主拘束管理的劳动给付行为,应计为劳基法上的工作时间,使其享有最高工时限制、最低工资保障、劳动保护和工伤权益保障及必要休息时间等对价权益;而待命工资支付问题,本质上属于劳动力市场上的交易行为,应允许劳雇双方依劳动合同法“自愿、合法、公平”原则协商解决。     

口头制止运用方法浅析

口头制止是《公安机关人民警察现场制止违法犯罪行为操作规程》规定的处置措施之一。但现阶段公安民警在现场制止违法犯罪时存在不知、不用、不会使用口头制止处置措施等问题。影响到执法的进程和效果。可从转变执法理念、依法使用口头制止、口头制止方式适当、口头制止方法等四个方面探讨公安民警口头制止处置措施规范化使用实现的途径,提升公安民警在实战中运用口头制止手段的能力。避免不必要的执法对抗和产生不良执法效果,以体现规范执法,保障人权,促进社会和谐发展的要求。     

The use of seclusion in the Netherlands compared to countries in and outside Europe

The use of seclusion in psychiatric practice is a contentious issue in the Netherlands as well as other countries in and outside Europe. The aim of this study is to describe Dutch seclusion data and compare these with data on other countries, derived from the literature. An extensive search revealed only 11 articles containing seclusion rates of regions or whole countries either in Europe, Australia or the United States. Dutch seclusion rates were calculated from a governmental database and from a database covering twelve General Psychiatric Hospitals in the Netherlands. According to the hospitals database, on average one in four hospitalized patients experienced a seclusion episode. The mean duration according to the governmental database is a staggering 16 days. Both numbers seem much higher than comparable numbers in other countries. However, different definitions, inconsistent methods of registration, different methods of data collection and an inconsistent expression of the seclusion use in rates limit comparisons of the rates found in the reviewed studies with the data gathered in the current study. Suggestions are made to improve data collection, to enable better comparisons.     

The use of harmful to others-criterion for involuntary treatment in Finland

During the past decades the Western countries have paid attention to their Mental Health legislation, in particular, by making changes concerning involuntary treatment. In Western countries legislation allows involuntary treatment of the mentally ill. Involuntary psychiatric treatment is motivated by either potential harm to others (for the good of society) or by need for treatment and/or potential self-harm (for the good of the patient). The aims of this study were to describe to what extent the danger to others criterion is used as a motivation for involuntary hospitalization and detainment in Finland, and to what kind of patients this criterion is applied. The study involves a retrospective chart review of all the treatment periods of a six month admission sample in three Finnish university hospitals. We found that potential harm to others has been rarely used as a motivation for involuntary referral or detainment together with other motivations, and virtually never as the sole motivation. With the exception of gender, which was most often male, patients with potential harm to others did not differ significantly from other involuntarily treated patients. Coercion (defined as seclusion, the use of restraints, forced medication, physical restraint or restrictions in leaving the ward) was not used with these patients more regularly than with the patients motivated by the other criteria. Length of stay (LOS) in a psychiatric hospital did not differ between the patients determined harmful to others and the other involuntarily treated patients.     

Mental health legislation and human rights in England, Wales and the Republic of Ireland

In 2005, the World Health Organization (WHO) published its Resource Book on Mental Health, Human Rights and Legislation (Geneva: WHO) presenting a detailed statement of human rights issues which need to be addressed in national legislation relating to mental health. The purpose of this paper is to determine the extent to which revised mental health legislation in England, Wales (2007) and Ireland (2001) accords with these standards (excluding standards relating solely to children or mentally-ill offenders).Legislation in England and Wales meets 90 (54.2%) of the 166 WHO standards examined, while legislation in Ireland meets 80 standards (48.2%). Areas of high compliance include definitions of mental disorder, relatively robust procedures for involuntary admission and treatment (although provision of information remains suboptimal) and clarity regarding offences and penalties Areas of medium compliance relate to competence, capacity and consent (with a particular deficit in capacity legislation in Ireland), oversight and review (which exclude long-term voluntary patients and require more robust complaints procedures), and rules governing special treatments, seclusion and restraint. Areas of low compliance relate to promoting rights (impacting on other areas within legislation, such as information management), voluntary patients (especially non-protesting, incapacitated patients), protection of vulnerable groups and emergency treatment. The greatest single deficit in both jurisdictions relates to economic and social rights.There are four key areas in need of rectification and clarification in relation to mental health legislation in England, Wales and Ireland; these relate to (1) measures to protect and promote the rights of voluntary patients; (2) issues relating to competence, capacity and consent (especially in Ireland); (3) the role of “common law” in relation to mental health law (especially in England and Wales); and (4) the extent to which each jurisdiction wishes to protect the economic and social rights of the mentally ill through mental health legislation rather than general legislation.It is hoped that this preliminary analysis of mental health legislation will prompt deeper national audits of mental health and general law as it relates to the mentally ill, performed by multi-disciplinary committees, as recommended by the WHO.     

PCL-R psychopathy predicts disruptive behavior among male offenders in a Dutch forensic psychiatric hospital

In this study, the relationship between psychopathy, according to the Dutch language version of Hare's Psychopathy Checklist-Revised (PCL-R), and various types of disruptive behavior during inpatient forensic psychiatric treatment is investigated. Ninety-two male participants were administered the PCL-R following admission to an inpatient forensic hospital. From daily hospital information bulletins, incidents of verbal abuse, verbal threat, physical violence, and violation of hospital rules were derived. Also, the number of seclusion episodes was recorded. As expected, significant correlations were found between PCL-R scores and verbal abuse, verbal threat, violation of rules, total number of incidents, and frequency of seclusion. Psychopaths (PCL-R > or = 30) were significantly more often involved in incidents than nonpsychopaths. Multiple regression analyses revealed that the PCL-R Factor 2 score in particular contributed uniquely to the prediction of the total number of incidents. The findings are discussed in terms of their clinical implications.     

论法治国家

法与国家关系一元论既可能有利法治 ,也可能导致法治根本就无法建立。法与国家二元论下的国家优先论 ,可能使法成为国家的附庸而否定法本身。它在使法失去了自身的独立性和对国家的约束力的同时 ,也使法治失去了基本的立足点。在法与国家的产生上 ,二者在互动渐变中发展形成 ,没有先后之分 ;在法与国家的并存中 ,二者有着地位的差异。基于法与国家本身的特性 ,基于保障人民权利的价值期求 ,基于实现法治国家的理想目标 ,法律应当优先于国家。就法治国家来说 ,我们要建设的是实质意义上的法治国家 ,而非形式意义上的法治国家。我们不能将法治国家与法治相等同 ,更不能将二者对立起来 ,相反 ,我们应当把法治的内容纳入法治国家的含义之中。法治国家与人治国家、专制国家、警察国家等非法治国家相对立 ,与宪政国家相联系。西方法治发展已经经历了漫长的历史过程 ,中国关于法治国家口号的提出也有百年的历史 ,现在重提并郑重确认它为我国社会发展的目标 ,必然具有重大的意义。我国法治将经由法治国家进而向法治社会的纵深发展。