Study On Compulsory Medical And The Rights Protection Of Mental Disorders

Professor David Rosner predicted,"Increasing medical'trust'led to the social effects of specious. Disease is no longer just a biological event, but a social event. Diseases, health and personal behavior, virtues happened association determines the social, economic, political response pattern of the disease." Although modern medicine from the biomedical model towards bio-psycho-social medical model.Mental health is a special issue of the medical field and has all kinds of connections with social factors. Throughout the human history of madness, each end of the madness has never been doctor or patient-but repelled by the whole society. This society belongs to the majority with the representative of those people in powerful.In recent years, people are paying more and more attention to the study on compulsory medical in such socially disadvantage groups through Zhu Jinhong case in Jiangsu, He Jinrong case in Guangzhou, Zou Yijun case in Shenzhen and so on. On the one hand, someone who is normal or no need compulsory medical was forced into a mental hospital for there is a conflict of interest with others, experiencing a loss of personal freedom, and compulsory treatment of pain. On the other hand, some mental disorders missed the best timing of treatment due to poverty.China's new mental health law was adopted at the twenty-ninth session of the11th National People's Congress Standing Committee on October26,2012, which is the milestone of mental health for pushing and improving its development. However, there are many deficiencies and large gaps compare with international health legislation and rights protection.This paper reviews the history of mental disorder and discusses the relevant philosophical questions from the point of philosophy for seeking the theory foundation of legal intervention to mental disabilities. On the base of querying for a large numbers of materials about mental health legislation of international organizations and major developed countries, this paper hopes to improve the mental health legislation in China, particularly on compulsory medical and the rights protection of mental disorders. The paper consists of9chapters besides foreword (chapter1) and postscript. The chapter2is the historical reflection about madness and compulsory medical. It's been a long time for madness being treated unfairly. Viewed from a historical perspective, we can understand more clearly about the nature of madness in the different period of human with different attitude of madness. We should reflect from history for avoid repeating it and looking to the future, we learned from the history of madness that torment of tossing around per20two or three decades, this has not only limited the development of psychiatry, but also damaged the rights of medical, increased the burden of family and society and deepened the prejudice or discrimination between the social public and patient.Chapter3is to discuss the legal nature and basic principle of mental disorders and compulsory medical. The concept of mental disorders has carried on the limits from generalized and the narrow sense. The general compulsory medical of mental disorders can be classified into4parts:crime irresponsibility of mental disorders, illegal behavior of mental disorders, civil and rescued department of mental disorders, and family protection of mental disorders. Except for family protection of compulsory medical belongs to mental disorders of compulsory medical under public law, crime irresponsibility belongs to criminal security measures, illegal behavior and civil and rescued department belong to mandatory administrative measures, and family protection of compulsory medical belongs to civil acceptance measures. Mental disorders of compulsory medical should research the separation of decision right and enforcement right of compulsory medical, and generally the structure of specialized hospitals which collectively managed by Health, Civil Affairs and Police since being founded at the early years of our new country will be accepted into the industry of public health. Finally, this chapter discussed6basic principles:law reservation principle, writ principle, principle of due process, proportion principle, principles of complement, regular or irregular principle.The chapter4is the hospital entry standard of mental disorders which is one of the most critical and controversial issues. With the civil rights movement, the risks principle generally replaces the medical needs principle in a growing number of States. The risks principle completely relies on3wrong assumptions:Firstly, the frequency and violence and predictability of violence of mental disorders makes themselves should take compulsory medical. Secondly, whether the mental disorders exist the danger of hurting people, can fully get the reliable assessment of professional doctors. Thirdly, the risks principle can protect the mental disorders and community from harm. Finally, we calls on thinking the opinion of Large and Richardson, learns from legislation of Scotland, and responds MI principle (principle16) requirements, uses the principle of ability of informed consent to replace the risks principle.The chapter6describes the mental disorders in the UK, USA, Germany, Japan and Taiwan of China's compulsory medical hospitalization program, and summarized into three types:the model of judicial review, which is represented by court-depth to compulsory medical decision, the court ultimately decide whether or not compulsory medical instructions. This mode is popular at the United States and Germany; the model of quasi-judicial review, represented by the court does not actively intervene in the mandatory health care, in particular, act as legislative bodies authorized to review the special court or review board, such as be fashionable at areas of Britain and Ireland. The model of Administrative review to Japan and Taiwan as its representative, the court does not intervene to force medical decision, but prior review and decision by a government department or review committee established. Hospitalization program of "Mental Health Law" is actually neither a (quasi) judicial review model, nor administrative review mode."Mental Health Act" does not establish a third-party, independent "review committee", there is no very clear and decisions of administrative review body, but simply by virtue of the doctor diagnosed that can force admitted, which is obviously very wrong. Since China's new "Code of Criminal Procedure" may be included in the previous administrative decisions to judicial decisions, other mental disorders of compulsory health should gradually transition to judicial decisions. In addition, China's "Mental Health Act" should be sent to the attending medical personnel to expand the scope of compulsory; urgent need to establish a clear complementary "medical observation period" and "compulsory hospitalization period" and automatic periodic review mechanism; established stratified according to the different types of compulsory hospitalization responsible for the system, and so on.The chapter6, introduced the experience of the U.S. legislation protecting the rights of mental disorders, and then raised up the existing problems and our response to the road, from18important rights of mental disorders.The chapter7is to explore for mental disorders isolation, constraints, and special treatment issues. This part of the human rights of persons with mental disorders are closely related to security, and China's actual situation is not optimistic. China's actual situation is not optimistic. First, China's "Mental Health Law" did not give the "isolation" and "bound" to make a clear definition; Secondly, there is no clear and specific isolation and will be bound by the manner described above under different circumstances. Although regulations prohibit the use of restraint, isolation and other protective measures to punish mental health disorders, but the so-called "disturbing medical orderly behavior" and "protection of medical interventions," and apparently broader than the requirements of the principle MI, easily evolve to facilitate the management, and even punishment in the treatment of mental disorders means; Thirdly, we should learn from foreign legislation in the future, Emphasis on isolation and restraint methods should be used (several minutes or hours) in the shortest time necessary, some time after isolation or restraint, should immediately use the measure again; Finally, Our future legislation should be clear:Mental health agencies should be isolated and restraint measures are ineffective as a variety of other measures to prevent a last resort when the patient for self-injury or injury.The Chapter8is about mental disorders guardianship system. Mental disorders often because of disability and become vulnerable groups in society, it is proposed to improve the legal system must guardianship system for mental disorders disability. The "guardian" of China's new Mental Health Act, should be understood as a new monitoring system similar to the German people care systems and auxiliary systems in Japan. For the "Civil Law" and "Mental Health Law" problems,we hope the government to set up specialized agencies to take on protecting the rights of persons with mental disorders duties, and reform the government guardianship from passive to active. Not only be requested to fulfill the responsibility of guardianship, but also should be more active on a regular basis to care the lives and medical conditions of mental disorders.The Chapter10discusses the mental disorders compulsory medical supervision and relief mechanisms. Protection of the rights of persons with mental disorders is difficult to rely on the development and realization of substantive law only, procedural law should try to correct errors in judgment with mental disorders and hospitalization decisions. Therefore, legal remedies for mental disorders compulsory health are particularly important. The specific legislatives arc UK, USA, Germany, Japan and Taiwan, we have found that patients with mental health measures were mandatory compulsory administrative measures to adjust the steering by the administrative judicial and administrative role in the security of cross disciplinary measures and procedures for public considerations, judicial intervention is still growing. In addition, because the medical professional, some administrative, judicial supervision and relief have become a medical decision "rubber stamp", judges or officials frequently in the patients, their agents or the case of the absence of witnesses, make recommendations to approve medical judgment, rather than the whole process of independent thinking and analysis. How to play the maximum administrative and judicial remedies to protect the role of candidate members of the administrative review body, the introduction of the experts who assisted the formation of a strong cross-examination of the expert opinions, as well as the compulsory medical mental disorders should be included in the scope of legal aid legislation in question concerns the future.