反思精神障碍强制医疗的“危险性”原则

很多国家精神卫生立法在强制医疗人院标准方面都适用了“危险性”原则,我国《精神卫生法》也在其列。然而,“危险性”原则是基于三个错误的假设,因此实际上“危险性”原则可能会增加精神疾病对患者的伤害和较大程度增加社区危险的风险。本文呼吁参考Large及Richardson的观点及美国部分州与苏格兰精神卫生立法的实证经验,在“危险性”原则基础上补充“拒绝治疗的能力”评定作为精神障碍者强制医疗入院标准。     

Examining the Incidence of and Time to Recidivism Within the Risk Contingency Framework: A 20-Year Follow up Study

This study examined the extent to which the contingencies risk framework (consisting of dispositional, historical, contextual, and clinical domains) predicted detected recidivism (i.e., arrest or conviction). Secondary data were extracted on 413 prisoners who underwent a psychiatric evaluation, were assessed on the risk domains, and followed up over 20 years. There were 273 (66.1%) cases of recidivism for serious offenses (e.g., assaults). Criminal career outcomes examined included: years to and the incidence of recidivism. Statistics showed that chance classification of the incidence of recidivism was 21% more accurate for the recursive partitioning than the bilinear model. These results are consistent with the contingencies risk framework, support its use over linear models, and highlight its predictive utility.     

Obligatory dangerousness criteria in the involuntary commitment and treatment provisions of Australian mental health legislation

Objective

Involuntary commitment and treatment (IC&T) of people affected by mental illness may have reference to considerations of dangerousness and/or need for care. While attempts have been made to classify mental health legislation according to whether IC&T has obligatory dangerousness criteria, there is no standardised procedure for making classification decisions. The aim of this study was to develop and trial a classification procedure and apply it to Australia's mental health legislation.

Method

We developed benchmarks for ‘need for care’ and ‘dangerousness’ and applied these benchmarks to classify the mental health legislation of Australia's 8 states and territories. Our focus was on civil commitment legislation rather than criminal commitment legislation.

Results

One state changed its legislation during the course of the study resulting in two classificatory exercises. In our initial classification, we were able to classify IC&T provisions in legislation from 6 of the 8 jurisdictions as being based on either ‘need for care’ or ‘dangerousness’. Two jurisdictions used a terminology that was outside the established benchmarks. In our second classification, we were also able to successfully classify IC&T provisions in 6 of the 8 jurisdictions. Of the 6 Acts that could be classified, all based IC&T on ‘need for care’ and none contained mandatory ‘dangerousness’ criteria.

Conclusions

The classification system developed for this study provided a transparent and probably reliable means of classifying 75% of Australia's mental health legislation. The inherent ambiguity of the terminology used in two jurisdictions means that further development of classification may not be possible until the meaning of the terms used has been addressed in case law. With respect to the 6 jurisdictions for which classification was possible, the findings suggest that Australia's mental health legislation relies on ‘need for care’ and not on ‘dangerousness’ as the guiding principle for IC&T.     

Changing patterns in emergency involuntary admissions in the Netherlands in the period 2000-2004

BACKGROUND: In England, rates of involuntary admissions increased in subgroups of patients. It is unknown whether this is true in other European countries. AIMS: To establish whether the increase in emergency commitments was uniform across subgroups of patients and dangerousness criteria used to justify commitment in The Netherlands. METHOD: National data on all commitments in the period 2000-2004. RESULTS: Commitments increased from 40.2 to 46.5 (16%) per 100,000 inhabitants. Controlling for population changes in age and sex, relatively large increases were found in patients over 50 years (25-40% increase), in patients with dementia (59%), 'other organic mental disorders' (40%) and substance abuse (36%). 'Arousing aggression', increased most strongly as a dangerousness criterion for commitment (30%). CONCLUSION: Changing patterns of commitments in The Netherlands and England might indicate a wider European shift in diagnoses and reasons for admission of committed patients.     

中德(日)量刑基准之比较研究

在德日刑法中,受责任主义的规制,责任为刑罚规定了前提和界限,基于预防方面的考量不能僭越责任程度所决定的刑罚。相比之下,中国现行刑法的量刑基准理论与之虽貌合实神离,因为作为其量刑基准的刑事责任的大小是社会危害性与人身危险性评价的加权之值。我国现行量刑基准理论实际上是现行刑事责任理论体系的逻辑延伸。欲求我国量刑基准理论在逻辑上更为科学合理,在价值取向上彰显现代刑法之人权保障机能,则必以改善现行刑事责任理论体系为前提。改造的重点在于纠正将责任评价与刑罚量定混为一体的做法,将之予以分离,使之各得其所。作为犯罪后果负担的刑事责任只能由犯罪的严重性程度来决定,人身危险性因素不能用于评价犯罪与刑事责任,而只能在刑罚最后量定时做有利于犯罪人更新改造之缓和考量。