The Identification Of Dangerousness In Compulsory Medical Procedures

One of the important characteristics of China's compulsory medical procedure is that it is applied to insanity patients who have committed criminal offences and are dangerous to others,this characteristic makes the procedure different from the civil involuntary medical cares and those ordinary criminal proceedings.Criminal commitment to insanity patients is a kind of restrained security measures rather than penalties,but due to its inherent mandatory nature,the practical application should be judicial.Its main function is to prevent the recurrence of dangerous behavior.In order to implement the function of the compulsory medical procedure,we need to clarify how to determine the dangerousness of the mentally ill.However,there are still many problems in its legislation and judicial practice,including: First,when defining dangerousness,it's easy to equal the former violent behaviors of patients to their dangerousness,because the provisions of the law on what is “the possibility of causing continuing harm to society” are unclear.Second,the subjects involved in the identification of dangerousness are not enough,and the victims and appraisers rarely participate in the trial.Third,when the compulsory medical procedure is initiated by the court,the problem is that the subject of burden of proof is indistinct;When procedure is initiated by the investigating agencies,the problem is that the power between the prosecution and the defense is unequal.Fourth,the accurate and sufficient evidence standard is inappropriate for defining dangerousness.For the above problems,we can make corrections based on the experience of other countries.This paper introduces the criminal compulsory medical procedure legislation about dangerousness in countries such as Britain,the United States,France,Germany,Switzerland and Japan.It highlights the use of commitment for mental patients in US criminal cases.Most states,after the mental patients are acquitted,send them to hospital for treatment by default,but this commitment period is not long,shortly a hearing or judicial review process will ensure that the commitment is necessary.In other states,after the insanity defense is established,it is not certain to take compulsory medical measures.Instead,there will be a procedure such as a hearing or a review tribunal to separately confirm whether the patients should be taken compulsory measures.Therefore,in the distribution of burden of proof and the standard of proof,it is also necessary to consider the situation.In some states,the defenders bear the burden of proof in the in the insanity defense,while in the after hearings,the prosecution usually bears the burden of proof.According to the difference of the subject and difficulty,the standard of proof is constantly adjusted.Finally,this paper puts forward some suggestions for the improvement of dangerousness identification in China's compulsory medical procedures.First of all,“the possibility of causing continuing harm to society” should be clearly defined in the legislation.Scientific prediction methods should be applied in the process of mental identification,and the evaluation of the dangerousness of mental patients should also be written in the identification reports.Second,increase the participate subjects and complete the provisions for the appraiser to appear in court.Third,clarify the subject of the burden of proof when the court initiates the compulsory medical procedure,and adopt a series of measures to guarantee the rights of the defense,so that the evidence presentation is no longer a privilege for prosecution.Fourth,since the procedure is mainly initiated by the investigation agencies and the prosecution takes the burden of proof,we should adopt a dualized standard of proof.In proving that the violent acts committed by mental patients have met the conditions of crime,the accurate and sufficient evidence standard should be adopted;for psychiatry and identification of scientific issues,including proving that the defendant has mental illness and the illness will possibly cause a continuing harm,we should apply the lower "clear and persuasive" standard.