试论应对突发公共卫生事件的法制建设

本文简要介绍了有关国家在突发公共卫生事件方面的有效反应机制与立法 ,认真分析了《突发公共卫生事件应急条例》根据实践经验和借鉴国外有益做法 ,对突发公共卫生事件应急处理的新规定 ,并在此基础上对完善我国处理突发事件应急机制的法律制度提出了建议。     

精神卫生法的理想与现实

《精神卫生法》的立法经历了一个极其漫长的过程,最终出台的法律文本仍然存在非常严重的问题,其立法所要解决的问题所要达到的目的非常高,而与中国的现实严重脱节。《精神卫生法》立法的三大理想中,保护精神病患者的合法权益是核心,并希望立法来解决包括被精神病等一系列的社会现实问题。但是,立法脱离现实,相关的内容甚至出现了错误,表现在精神病患者的收治、实施导致人体器官丧失功能的外科手术、急诊急救、基层医疗机构的精神卫生保障等方面。由于存在不切合中国实际国情的规定,《精神卫生法》在我国的实施将会大打折扣。建议《精神卫生法》重点关注严重精神疾病患者得不到治疗、肇事肇祸的严重精神疾病患者得不到强制医疗的现象,关注财政投入不足、强制收治不规范等方面的问题。     

Of Eggshells and Thin-skulls: a consideration of racism-related mental illness impacting Black women

Recent research has indicated that the prevalence of mental disorders is estimated to be higher among Blacks than among Whites, most likely due to the nexus of race and socioeconomic disparity. Blacks are under-represented in in-patient populations and more likely than Whites to use the emergency rooms for mental health treatment. Numerous studies confirm that Blacks drop out of mental health services at a significantly higher rate than Whites and use fewer treatment sessions for mental health issues. Furthermore, Blacks enter mental health treatment at a later, more advanced stage than Whites, under-consume community mental health services of all kinds, are misdiagnosed more often than Whites, and are more often diagnosed with a severe mental illness than Whites. People from diverse ethnic backgrounds often are prevented from receiving adequate mental health treatment due to misdiagnoses and lack of access to the services they need. Factors contributing to this disparity include a general mistrust of medical health professionals, cultural barriers, co-occurring disorders, socioeconomic factors, and primary reliance on family and the religious community during times of distress. Unfortunately, the traditional institutions of racialized research largely ignore the disparate social and political exposures confronting people of color, such as residential and occupational segregation, racial profiling, tokenism, discrimination, racism, and the consequential physiological and psychological effects flowing from the macro and micro effects of such interactions and intersectionalities. This article explores these issues and proposes civil law legal frameworks for addressing these disparities. In particular, it is suggested that renewed consideration be made of the Thin-skull and Eggshell doctrines in the United States and comparable traditional international doctrine.     

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.     

Patient dumping in the hospital emergency department: renewed interest in an old problem

Alarm about the adverse effects of transferring emergency patients for economic reasons has resulted in federal legislation aimed at curbing the practice. We review the history of common law hospital liability for denial of emergency care and analyze the federal legislation designed to restrict the transfer of medically indigent patients with emergency problems. We conclude that the currently proposed solutions to patient dumping will have limited effectiveness without more specific incentives for the provision of health care to the medically indigent.     

Legal impediments to data linkage

Large numbers of electronic health data collections have been accumulated by both government and non-government agencies and organisations. Such collections primarily assist with the management of health services and the provision of health care programs, with only a minority of these data collections also intended for research purposes. A number of constraints are placed on access to such data for the purposes of research, including data linkage. This article examines those factors arising from the intricacies of Australia's privacy legislation landscape which impede access to such collections. The relevant issues discussed include issues relating to the existence of multiple privacy and health privacy Acts, the recommendations made by the Australian Law Reform Commission in relation to the Privacy Act 1988 (Cth) and the constraints placed on the conduct of data-linkage research which arise from legislation that relates specifically to certain data collections.     

Mothers of Violent Children with Mental Illness: How They Perceive Barriers to Effective Help

The goal of the present study was to understand how mothers perceive and experience barriers to effective help for their violent child with mental illness. Data from ethnographic interviews with 26 self-identified mothers of violent children with mental illness were analyzed using grounded theory and focused coding. Our study identified three themes that represent barriers to help: (1) denial of mental illness and severity of violence by treatment providers, extended family, and non-family members; (2) limited access to quality treatment and supports; and (3) a recurring cycle from optimism to hopelessness. To inform policy makers and practitioners on how best to remove these barriers, we draw comparisons between the current sample and survivors of intimate partner violence. Our paper concludes with recommendations for mental health practitioners and family intervention specialists.     

An integrated exploration of factors associated with psychological distress among older prisoners

This paper compares the contributions of socio-demographic, health, mental health, social and environmental factors in explaining variations in psychological distress among older prisoners in two Australian states. One hundred and seventy-three prisoners (aged 50+ ) from 8 Australian prisons were interviewed using the Kessler Psychological Distress (K10) Scale. Three regression analyses were conducted to compare different models of 14 variables significantly associated with psychological distress. Independent variables most prominently associated with variations in psychological distress among older inmates were self-reported levels of social support, self-reported safety and ease of health care access. Difficulties in the built environment and mental health history were significantly explanatory of variations in older prisoner distress in two of the three models. The findings suggest that modifiable situational factors evident in current prison contexts are reasonably explanatory of variations in prisoner distress among older inmates.     

Mental health and human rights: the role of the law in developing a right to enjoy the highest attainable standard of mental health in Australia

Article 12(1) of the International Covenant on Economic, Social and Cultural Rights requires governments to recognise "the right of everyone to the enjoyment of the highest attainable standard of physical and mental health". However, the traditional focus of mental health laws on the treatment and detention of those with low-prevalence serious mental illnesses may have skewed resources such that the development of a right to mental health for all individuals with mental illnesses has been stymied. In Australia, a number of inquiries and reports have found that while legislation has been changed to comply with human rights principles, access to mental health care and follow-up post-hospitalisation need critical attention. This article outlines a five-year project aimed at exploring how mental health laws can help develop and support a right to enjoy the highest attainable standard of mental health.     

Implementing the Mental Health Act 2007 in British general practice: Lessons from Ireland

Changes in mental health legislation (e.g. Mental Health Act 2007 in England and Wales, Mental Health Act 2001 in Ireland) have generally improved adherence to international human rights standards, but also present challenges to primary care providers. When mental health legislation was substantially reformed in Ireland, 62.9% of general practitioners (GPs) felt the new legislation was not user-friendly. Majorities of GPs who felt the legislation affected their practice reported increased workloads (85%) and various other difficulties (53%). GPs who had received training about the legislation were more likely to find it user-friendly (43% versus 30.9%), and informal training (e.g. from colleagues) was just as likely as formal training to be associated with a GP finding it user-friendly. With similar changes to mental health legislation being introduced in England and Wales, it is significant that informal training is just as good as formal training in helping GPs work with new mental health legislation.     

Abortion in Australia: access versus protest

Currently in Australia anti-choice protesters' right to freedom of speech and freedom to protest is privileged over a woman's right to privacy and to access a health service safely, free from harassment, intimidation and obstruction. This article considers how this situation is played out daily at one Victorian abortion-providing clinic. The Fertility Control Clinic was thrown into the spotlight after the murder of its security guard by an anti-choice crusader in July 2001. Australian common law appears not to offer women protection from anti-choice protesters. By contrast, United States and Canadian "bubble" legislation sits comfortably with key constitutional rights. It would be a useful development if Australian governments passed legislation to ensure the rights, wellbeing and safety of Australian women accessing health services. Such legislation would be another step away from the misogynistic and androcentric values once central to our legislative framework.     

Justice and equality in mental health law: the European experience

This is the text of a lecture delivered at the World Conference of the International Academy of Law and Mental Health in Sydney in September 2003 on the occasion of the award to the author of the Prix Philippe Pinel. Its theme is the potential of the European Convention on Human Rights to secure the human rights of people with mental disorders and disabilities, viewed in the context of the legislation on mental health and mental incapacity in England and Wales. Its conclusion is that the Convention is better at protecting them from unwanted or unnecessary treatment and care than it is at securing for them equal access to the treatment and care they want or need. The lecture has been updated to reflect developments in the United Kingdom since 2003.     

论精神病人的民法监护——以民事强制住院司法实践为视角

目前．世界多数国家关于精神病人强制住院的立法都直接与广义上的监护法律相联系。监护制度在保护民事行为能力欠缺的精神障碍患者的身心安全和提供必要的住院及医疗措施方面发挥了重要作用。然而,由于我国关于精神病人监护制度的法律规定较为简陋和滞后,导致了实践中,特别是在涉及民事强制住院措施适用时,很多精神病人的人身自由和健康权益并没有得到有效照管,甚至受到严重侵害,由此引起的医疗纠纷和诉讼也日益增多。在此试图对我国精神病人民法监护制度进行解构分析,以期为进一步完善适合我国国情的精神病人监护制度和维护精神病人健康权益提供一些立法建议。     

Access to health care: what a difference shades of color make

Professor Majette's timely article examines an age-old problem: the effect of race and ethnicity on a patient's receipt of health care. Her article analyzes some of the major health care access issues, with a focus on barriers confronting African Americans, Asians, Hispanics, and Native Americans. Some of the barriers include inability to pay, cultural insensitivity, a shortage of health care providers, and discrimination. She also examines some of the unsuccessful legal solutions and remedies designed to eliminate these barriers. Given the complexity of the access barriers encountered by people of color, Professor Majette concludes that only an interdisciplinary approach can eliminate them. Her proposed approach requires business, legal, and medical professionals to collaborate in developing a health care system that meets the needs of aracially and ethnically diverse population.     

Feedback on Forensic Mental Health Assessments in a Juvenile Court Clinic Certification Program

Public-sector mental health systems have set forth specialized practice competencies for forensic mental health clinicians conducting court-ordered examinations. This study examined a sample of feedback letters to clinicians who submitted mid-training and final reports for review as part of the requirements for certification as a juvenile court clinician. The most common feedback points were insufficient/irrelevant historical data, problems with clarity/organization of the report, problems with interview/mental status examination, and problems with competency to stand trial data/opinions. Clinicians had fewer deficiencies in their final report compared to their mid-training report, supporting the perspective that forensic training and supervision is associated with better quality reports.     

Perceptions of help resources for victims of intimate partner violence

Intimate partner violence (IPV) constitutes a major public health problem in the United States. This cross-sectional survey of 108 emergency department (ED) care providers and 146 ED visitors at three metropolitan EDs compared the beliefs of ED health care providers with those of community members about the relative benefits of the helpfulness of resources for IPV victims using hypothetical case scenarios. Although providers generally indicated that help resources were helpful in all scenarios, visitors were more discriminating, showing less support for resources in the lower-risk scenario. Regarding differences between groups, visitors selected police and attorneys more frequently than providers as a helpful resource, whereas providers selected shelters and counselors more frequently than visitors. Adjustment for previous experience with IPV did not change these results. Understanding the differences between health care providers' and community members' perceptions of resources for victims of IPV may improve the effectiveness of referral to IPV resources.     

TRICARE; Reserve and Guard family member benefits. Final rule

This final rule implements sections 704 and 705 of the Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005. These provisions apply to eligible family members who become eligible for TRICARE as a result of their Reserve Component (RC) sponsor (including those with delayed effective date orders up to 90 days) being called or ordered to active duty for more than 30 days in support of a federal/contingency operation and choose to participate in TRICARE Standard or Extra, rather than enroll in TRICARE Prime. The first provision gives the Secretary the authority to waive the annual TRICARE Standard (or Extra) deductible, which is set by law (10 U.S.C. 1079(b)) at $150 per individual and $300 per family ($50/$100 for families of members in pay grades E-4 and below). The second provision gives the Secretary the authority to increase TRICARE payments up to 115 percent of the TRICARE maximum allowable charge, less the applicable patient cost share if not previously waived under the first provision, for covered inpatient and outpatient health services received from a provider that does not participate (accept assignment) with TRICARE. These provisions help ensure timely access to health care and maintain clinically appropriate continuity of health care to family members of Reservists and Guardsmen activated in support of a federal/contingency operation; limit the out-of-pocket health care expenses for those family members; and remove potential barriers to health care access by Guard and Reserve families.     

What do NHS staff learn from training on the Mental Capacity Act (2005)?

Purpose. Many studies have reported that professionals have a limited understanding of mental capacity issues. Implementation (in England and Wales) of the Mental Capacity Act (MCA) (2005) presents a challenge to services. The aim of this study was to evaluate the extent to which National Health Service (NHS) staff benefited from attending MCA training courses. Methods. Participants were assessed before and after MCA training using a structured interview, which included three scenarios describing mental capacity dilemmas, four vignettes addressing the role of the Independent Mental Capacity Advocate (IMCA), and 16 true–false items. Results. Interview performance improved post‐training, but this could be largely ascribed to an increased awareness of mental capacity issues, with minimal improvements in the knowledge that would be needed to undertake the assessments. Nine areas were identified where there remained significant gaps in participants’ knowledge post‐training. Participants with experience of dealing with mental capacity issues performed better than those without. Conclusions. The results suggest that methods other than formal training events may be needed to prepare health staff to implement new legislation.     

卫生监督中建立卫生行政指导制度的必要性分析

突发性公共卫生事件在新时期对人们的生命和健康有着越来越大的威胁,并容易造成社会性恐慌。宪法和行政法 要求卫生监督部门有所作为,但行政权不宜涉及国民的日常生活和心理状况,以往的卫生行政管理体制在新时期日显不足, 此时,在卫生监督工作中卫生行政指导制度的建立和应用便成为必然。卫生行政部门应按照市场经济发展的要求,建立卫生 行政指导制度。