On The Limitation Of The Right Of Personal Freedom Of Mental

The right of personal liberty is one of the basic rights of mental patients. However, compared to the normal population, personal liberty of mental patients are more likely to suffer from limited: On the one hand, as ordinary citizens, the measures which limit the personal freedom can be applied to the mental patient, including the restriction of personal freedom of criminal compulsory measures, penalty, administrative penalty and administrative compulsory measures; On the other hand, the mental patient’s mental status and suffering from diseases brought by the "mental illness" and "dangerous" tag on their liberty of restriction and deprivation on, including family detention, social isolation, compulsory medical, personal constraints. Mental patients as vulnerable, marginal groups, they tend to lack normal behavior, not only unable to exercise and realize their basic rights when their rights are violated also lack ego to protect ability; Social discrimination and exclusion to make them more marginalized, and unable to change the weak state, and even into a vicious circle. Therefore, mental patients enjoy the right of personal freedom is undoubtedly more fragile, special protection should be subject to legal.As negative rights, the most effective protection to the personal liberty is the country abiding its power, and avoiding invasion of citizens’ personal liberty. In fact, the greatest threat to the freedom of the person of mental patients right always come from countries, especially the compulsory medical power to mental illness and danger of the name of the involuntarily treatment. As a coercive measures of severe deprivation of personal liberty, involuntarily treatment is the external restrictions on personal liberty imposed by the law, and realization the restriction of this measures is the inherent requirement of basic rights Therefore, safeguard the mental patient personal liberty is the core of how to realize the legal regulation of compulsory medical treatment. In order to demonstrate question of the restrictions on personal liberty of mental patients, this article is divided into four chapters.The first chapter discusses the definition of personal liberty, defines the content and its restriction of the personal liberty of mental patients. There are broad and narrow definition of personal liberty in theory, this paper argues that the definition of personal liberty only refers to the freedom of physical activity, an individual according to his will, to act or not act within the law and exclude unlawful infringement of his rights. Other activities related to physical activity freedom, such as residential, migration, communication, entry and exit, belong to other liberty rights. The second section of this chapter hold the view that the mental patients, regardless of their mental state and behavior ability, have the same basic rights ability like others and enjoy the same basic constitutional rights, including the right of personal liberty. In the third section of this chapter, we discuss the contents and the functions of personal liberty of mantal patients, which include defense right function and objective function value of the order. The third section mainly discusses the situtions that the mental patients personal liberty is restricted, including the personal liberty restricted by guardians, restricted by criminal law(criminal compulsory treatment) and restricted by administrative agency(including protective restraint and administrative compulsory treatment). In all cases, the administrative compulsive treatment is the most serious situation which restricts the personal liberty of mental patients.In chapter two, we mainly discuss the basic theoretical problems involved in the restriction of personal liberty with the involuntarily treatment, including the relevant concept definition of the involuntarily treatment, its characteristics and nature and legitimate purpose and basis, and limit deserved from the restriction of personal liberty with the involuntarily treatment. In the paper, it is thought that the involuntarily treatment belongs to the non-punitive, protective and preventive measures for the restriction of personal liberty on the basis of defining the basic concept of the involuntarily treatment, and is the intervention that the state takes for the personal liberty for protecting the patients’ benefit and public benefits based on its inherent power(national guardianship and police power); and its nature belongs to the administrative compulsory measure of the restriction of personal liberty. Therefore, the legitimate purpose of the restriction of personal liberty with the involuntarily treatment is to protect the patients’ right of health and public benefits, and the basis that the state interferes with the right of personal liberty is the national guardianship and police power. In the meantime, in order to prevent restricting the personal liberty of the mental patients with the involuntarily treatment exceedingly, this restrictive measure shall be restricted, and this requires abiding by the law reservation principle of the restriction of personal liberty with the involuntarily treatment in form, and conforming to the proportionality principle and minimum principle of restriction substantially.In Chapter three, we discuss the specific elements that the restriction of personal liberty with the involuntarily treatment shall follows. The specific elements decide the applicable object and range of the involuntarily treatment, and also decide the space and limit that the state interferes with the personal liberty in the way of involuntarily treatment. In the paper, the elements of the involuntarily treatment are reduced to the mental disorders, dangerousness and treatability by combining the property of the involuntarily treatment and our actual situation by virtue of the comparative analysis. Firstly, the object of the involuntarily treatment is only limited to the persons with the mental disorders, and the mental disorder that they suffer from must reach the "Serious" degree; and the diagnosis of the mental disorders shall be carried out by the qualified professionals according to the recognized medical standard. Secondly, the dangerousness is based on the restriction of personal liberty with the involuntarily treatment, and is also the core element of the involuntarily treatment. The dangerousness includes two elements, i.e. "harm(behavior)" and "harm possibility". "Harm" includes the harm to himself and others, and regardless of any harm, it shall reach a certain serious degree; and "harm possibility" shall be predicted by synthesizing the various factors and using the scientific prediction method. Finally, the involuntarily treatment shall take the "treatability" as the element, which requires that the mandatory admission of the mental patients must be for the purpose of treatment, and the practical effect shall be presented by the treatment; and if any actual treatment effect and possibility are not provided by the diseases that the mental patients suffer from, they shall not be admitted to hospital compulsorily. In short, the elements of the involuntarily treatment can be expressed as: patients with the serious mental disorders having the dangerousness and treatability.In Chapter four, we discuss the legal procedure that the restriction of personal liberty with the involuntarily treatment shall follow. The deprivation of personal liberty with the involuntarily treatment shall conform to the basic requirement of the due process of law. Throughout the lawmaking of all countries, the procedure of the involuntarily treatment can be divided into the medical model and legal model. The former endows the decision-making power of the involuntarily treatment to the medical institutions and personnel working on the mental health, and builds the involuntarily treatment procedure dominating the medical specialty; and the latter brings the involuntarily treatment into the judicial process or quasi-judicial process, and the suggestion of medical institutions on compulsory treatment shall be awarded or reviewed by the court or neutral institutions and follows the corresponding legal procedure. In the paper, based on the analysis of advantages and disadvantages on the two models, it is thought that we shall take the legal model of the involuntarily treatment by combining the development trend of the involuntarily treatment system and right guarantee need of mental patients. Specifically, the review mechanism which is composed of the experts on psychologic medicine, patients’ representative, legal experts and other relevant professionals is built, and responsible for reviewing the decision of medical institutions on the compulsory hospitalization; and by taking it as the core, the legal procedure of the involuntarily treatment is built.