摘要
《精神卫生法》实施后,涉及精神障碍患者非自愿住院的诉讼案件大致包括强制送治和非自愿住院治疗两大类,前者以实施强制送治的主体为被告,而后者一般以作出非自愿住院治疗决定的医疗机构为被告。尽管《精神卫生法》对非自愿住院的条件和程序作出了相应规定,但上述规定在司法实践中并未得到充分的适用,患者在诉讼过程中仍面临起诉难、胜诉难、鉴定难等多重困境,法院在案件审理过程中也存在案由选择不当、举证责任分配不合理、审理思路错位、非自愿住院合法性审查弱化等突出问题。为此,应在案由选择、举证责任分配、诉讼能力认定以及非自愿住院合法性认定等方面进一步完善非自愿住院诉讼的审理程序,从而为精神障碍患者构建更为有效便捷的司法救济机制。
Since the implementation of the Mental Health Law, lawsuits involving involuntary hospitalization generally have included two categories: forced hospitalization and involuntary hospitalization. In the former case, the person who sends the patient to the hospital is the defendant, while in the latter case, the hospital that makes the decision of involuntary hospitalization is usually the defendant. Although the Mental Health Law provides corresponding provisions on the conditions and procedures of involuntary hospitalization, the above provisions have not been fully applied in judicial practice, as a result, patients still face multiple difficulties in the process of litigation, such as difficulty in prosecution, difficulty in winning the case, and difficulty in application for forensic expertise.However, in the process of hearing cases, the court also has apparent problems such as improper selection of the cause of action,unreasonable distribution of the burden of proof, misalignment of the trial thinking, and weakening of the legality review of involuntary hospitalization. Therefore, we should further improve the trial of involuntary hospitalization litigation in terms of selection of cause of action, distribution of burden of proof, identification of litigation capacity and identification of legality of involuntary hospitalization, so as to provide more effective and convenient judicial relief mechanism for patients with mental disorders.
出处
《残疾人研究》
CSSCI
2022年第1期28-39,共12页
Disability Research
基金
教育部人文社科基金青年项目“精神病人强制医疗解除程序的中国模式及其完善”(17YJC820048)。
关键词
非自愿住院
精神障碍患者
精神卫生法
危险性
Involuntary hospitalization
Mental disorders
Mental Health Law
Dangerous
