Although law is proliferating, its techniques have been challenged by economics and its legitimacy by legal realism and critical legal studies including feminism, antiracism, and queer theory. Knowledge, to be commodified, must balance technicality and indetermination Jamous and Peloille : too technical and it becomes an algorithm consumers perform for themselves ATMs replacing bank tellers ; too indeterminate and the only performance criterion is artistic taste.
Information technology is restoring some lawyering functions to more educated consumers both individual and commercial. Constant change in the knowledge base influences the careers and turnover of personnel, professional fission into subspecialities, and the relationship between knowledge producers teachers and researchers and consumers practitioners. At the same time, the first attempts at comparative analysis aimed at elaborating a unitary perspective on the phenomenon of dictatorship were begun.
Already, by the second half of the s, several analogies between the dictatorship of Bolshevism and that of fascism came to prominence, later compared also to the dictatorship of National Socialism. These studies analyzed the new form of dictatorship from the point of view of its most original aspects, neatly distinguishing it from both Roman and nineteenth-century dictatorship.
These aspects included:. At the same time, the first attempts at comparative analysis aiming at elaborating a unitary perspective on the phenomenon of dictatorship were began. Already, by the second half of the s, several analogies between the dictatorship of Bolshevism and that of Fascism came to prominence, later compared also to the dictatorship of National Socialism. These studies analyzed the new form of dictatorship from the point of view of its most original aspects, neatly distinguishing it from both Roman and nineteenth century dictatorship.
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After the Second World War, the end of the Fascist and Nazi regimes, the experience of the Holocaust, the victory and expansion of Stalin's Russia, and the foundations the new Communist regimes in Eastern Europe and in Asia, brought about new interpretations of totalitarianism, highly influenced by the political orientation of Western anticommunism during the Cold War, identifying Nazism and Stalinism as the extreme experiences of the totalitarian dictatorship Gleason, To define totalitarianism as a totally new of modern dictatorship, scholars emphasized mass terror as the essence of totalitarianism Arendt, , the total control over the State and society Friedrich and Brzezinski, , or the monopoly of political power by a single party Aron, .
Unlike formal risk analysis, which is largely a product of twentieth century concerns, law and the mental health disciplines have existed in close reciprocity since at least , when the British House of Lords laid down the so-called M'Naghten rule for determining the responsibility of persons who try to excuse their unlawful behavior on grounds of insanity.
In US law, for example, psychiatric evidence was used to determine whether an accused criminal could stand trial, whether conditions for sentencing leniency or parole were met, and whether a criminal convicted of a heinous crime posed a sufficient threat of long-term dangerousness to deserve the death penalty. These intersections provided new professional opportunities for psychiatry and psychology, spawning a thriving pedagogic specialty of law and mental health Gutheil and Appelbaum, Indeed, the state's need to determine people's mental states in civil as well as criminal proceedings was an important driver of professionalization in mental health fields.
Entanglements with the law, however, also revealed disagreements among psychiatric experts and undermined their disciplinary authority in other ways. A team of two court-appointed psychiatrists initially found him to be a paranoid schizophrenic, but a second two-person team diagnosed him as sane and suffering from serious personality disorders. The latter diagnosis meant that Breivik would serve time in prison rather than in a low security psychiatric hospital. The majority of Norwegians, and Breivik himself, agreed with the finding of sanity, but the case also showed how pliant forensic psychiatric expertise can be, especially when confronted with strong public opinion.
An early but seminal challenge to psychiatrists' professional autonomy occurred in the US case of Tarasoff v. Regents of the University of California redecided in Here, the California Supreme Court ruled that psychiatrists are required to warn later changed to have a duty to protect third parties threatened by their patients. Although the decision did not open the floodgates to liability as therapists had feared, Tarasoff was widely seen as influencing therapeutic practice by making practitioners more attentive to threats posed by violent patients.
In another notable decision, the U. Supreme Court in Barefoot v. Estelle , a death penalty case, essentially ignored an amicus brief by the American Psychiatric Association APA stating that psychiatric predictions of dangerousness are wrong in as many as two out of three cases. The Court expressed confidence that juries would be able to evaluate such evidence even if it was weak or deficient, thereby denying privileged status to the APA's professional expertise.
By the end of the twentieth century, the alliance between law and the human sciences — joined, eventually, by genomics and powerful imaging techniques from the neurosciences Dumit, — helped to define a host of novel disorders and syndromes invoked to extenuate or penalize various types of conduct. Posttraumatic stress disorder PTSD , for example, along with its specific manifestations such as rape trauma syndrome, entered the DSM-IV, the official diagnostic handbook for psychologists, in spite of scholarly doubts that PTSD is a scientifically discoverable, universal phenomenon Young, Codified in DSM-IV, PTSD became not only an identifiable and presumably treatable medical condition, but also a basis for asserting new legal claims as in lawsuits for stress-related psychological injury in the workplace , or defending oneself against charges as in murder trials of sexually abused defendants.
A notorious synergy between law and psychology occurred in a rash of so-called recovered memory and child abuse cases, which gained prominence in the United States in the s Hacking, Research on eyewitness identification, another branch of science dealing with memory and recall, also received its chief impetus from the legal process and remained in constant dialogue with the law Wells and Quinlivan, Troubled by high error rates on the part of eyewitnesses, psychologists tested people's ability to recognize persons they had encountered in stressful situations and discovered that many factors, such as race, inhibit accurate identification under these circumstances Wells, Hundreds of studies with similar findings began to have an impact on police procedure by the late s, as awareness dawned that relatively simple changes, such as sequential rather than simultaneous presentation of suspects in line-ups, could substantially improve the reliability of eyewitness testimony.
Nonetheless, in the U.
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Supreme Court ruled that, in the absence of police misconduct, the introduction of eyewitness testimony without prior judicial scrutiny was not a violation of due process. It took until the late s and early s for fundamental changes to be implemented in a major paradigm shift toward a market-based model of public administration. Conservative political leaders, Prime Minister Thatcher in Britain and President Reagan in the USA were the first politicians demonstrably to sustain such an approach, which led to adoption in other Anglo-Saxon polities.
Similar earlier attempted changes had been evident in Latin America, where free-market concepts of the Chicago School were influential for a relatively short time. The market-based model, in varying forms, has been adopted in over countries, worldwide, with some convergence of ideological thought between traditionally conflicting political parties. The market-based model supplanted communism in Eastern Europe in the late s as a guiding ideology and has led to revolutionary change in organizational form in other largely totalitarian states.
This may account for the active transfer and adoption processes in place from polity to polity.
The EU, as the most comprehensive organizational form for supranational governance, operates with its own parliament and public administration system. Several common themes based partly on public choice, and other less well defined neoclassical economic theories of rational choice are characteristic of the market-based model. They all have implications for public administration and organizational aspects. First, for example, there is a move away from a mixed economy to a firm belief in markets as the primary and more efficient economic mechanism.
To this end, deregulation, relating to trade, finance, and monetary policies has taken place.
Second, if markets are to prevail, then the size of governments and their public sectors needs to be reduced. Major utilities and commercial businesses traditionally involving governments, in areas of activity such as telecommunications, power generation, distribution and transmission, water, banking, insurance, postal services, and airlines may be targeted.
Third, and most importantly, for the public sector, the strategic focus is on organizational efficiency, the creation of internal market-style competitive conditions and the more purposive application of private-sector business techniques to public management. These changes have involved a shift from a focus on processes of administration and policy, however flawed, to organizational management. It should also be stipulated that written legal acts, rather than their practical implementation, is reviewed - although possible social and cultural sources with impact on the application of legal norms are being outlined.
Our approach to the topic views development in mental health legislation as a process that cannot be comprehended out of the corresponding regional, historical, and cultural context. Dynamic interrelationship between concepts about mental illness, treatment approach and legislation have certainly been delineated by other authors also, e. When assessing the developments of our national psychiatric legislation in particular, analogous processes on different levels should be accounted for: the totalitarian legacy, the wider European context, the local context, and the specifics of culture.
Historically, the Central and East European countries had come through different routes to the totalitarian regimes. They could be separated into different groups according to: a their historical fate, e. Common features for the legal systems and social practices of all totalitarian regimes in the period however, despite differences in the pre-totalitarian background, were: insensitivity to human rights, prejudices, legal nihilism, under-development of the legal system, and domination of expedience above the conformity with law, regardless of the claims for the opposite.
Changes in mental health legislation after the collapse of totalitarian regimes follow two general trends: turnabouts to own previous models, or acceptance of alien ones, the latter being usually termed harmonization with international standards. The balance between the two trends depends on: whether previous models were actually present, and are they nowadays readily applicable. Changes in mental health context in general, and in the legal regulation of involuntary psychiatric treatment in particular, in Bulgaria, follow largely the trend towards normalization , i.
It is our view, much in accordance with Malia's 4 definition of Soviet period as "the great aberration" in Russia's development, that development never ceases and could be characterized therefore, more as aberrant rather than being arrested, in the totalitarian period Although precise phases cannot be delineated, the historical periods that generate certain mental health laws could be outlined with some approximation.
Below, brief characteristics of psychiatric legislation developments, concerning in a summarized way involuntary psychiatric treatment, are presented, based mostly on the delineation and descriptions made by other authors 1,5,6. Initial period - up to Usually the first mental health Act is considered to be the French one from , although some authors point to even earlier laws in other European countries concerning specific matters. The general characteristics of these acts is establishment of care under supervision and protection of society against mentally ill.
A change in attitudes in the first half of the 20 century is mirrored by change in terms: mentally ill instead of insane , psychiatric hospital instead of asylum , and admission instead of detention. Introduction of voluntary treatment regulation, development of procedures for admission and for discharge, and regulations for some special categories of patients, i.
The period Having also been called "y ears of fundamental changes in the world and in psychiatry" 1 , these are years of a powerful human rights movement and rapid developments of techniques and treatment approaches, e. These changes however, have limited implications in legislation illustrating the discrepancy between existing legislation and treatment programs. Until the 70's, the medical criteria and procedures for involuntary detention and treatment are dominating. Increasing emphasis afterwards has been placed on respect to individual rights and awareness of the necessity about a procedure for detention in "due process of law" 7.
Major characteristics of this period are: stricter guarantees for patients' rights, introduction of new forms of protection of the legal status of the mentally retarded, new forms of guardianship, formalized transition from in-patient to out-patient care, notions about consent to treatment and second opinion, and more procedural sophistication for coercive treatment. A special case, against general European trends, is Italy with the total abolition of coercive treatment in psychiatric hospitals while being allowed in the general hospitals and total transformation of the mental health care 5.
The period after Different aspects of involuntary treatment are continuously debated: about acceptability of limitations of personal liberty when the dangerousness criterion is present vs. Delineation between involuntary detention and involuntary treatment is being made in increasing number of legislations. Besides, Jensen 6 points out the increasing focus on the legal status and the rights of the involuntary detained patients, the new regulations for home involuntary treatment unless constituting direct danger to others Israel, Belgium , and the stipulated quality assurance standards for hospital care in some legislations Denmark, Belgium, Finland, Netherlands, and Norway.
More detailed data about developments of the national legislations concerning coercive psychiatric treatment in 15 member states of the European Union are to be found in the report of Salize et al. Evidence from these sources, as well as from the increasing number of national legislations concerning psychiatric involuntary treatment having been passed or amended during this period, convincingly illustrate the intensification of legal changes in this area. Bulgarian mental health legislation in historical perspective: the ontogenesis.
Historical fate of Bulgaria limits our focus to the modern Bulgarian state after , when Ottoman rule was overthrown , since continuity with previous, i. Initial period: After the first national health acts were passed Sanitary Act, , and Act for Protection of Public Health, , without any particular references for the mentally ill, a special Statutes for care of the mentally ill was approved in 9.
This act regulates all issues concerning care for the mentally ill until It contains norms that are to be abolished decades later, such as: "special protection" of psychiatric patients by state, guardianship and advocacy, and regulation of admissions in and discharge from the psychiatric wards of the general and psychiatric hospitals.
Special emphasis is due to the text regulating voluntary admission - concerning patients, presumptively capable of giving consent for treatment, and voluntary discharge - when wish has been declared. In Western Europe, explicit legal regulations of voluntary admission appear later, in the 30's.
An unprecedented Act for abolition of all previous acts - up to In , an Amendment to the Penal Procedure Code from was passed 11 , stating that the prosecutor may apply, and the District Court decide on, detainment for involuntary treatment for a subject that "may perpetrate a crime of significant community danger or constitutes a danger for oneself or for one's relatives" Art. Thus, the institute of preventive involuntary detainment and treatment of mentally ill who had not committed a crime was introduced, obliging the legal system to prevent crimes by coercive measures for treatment, with penal procedure for their implementation.
In , a Decree nr. The prosecutors apply for, and the court decides on detainment.
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Part of the treatment is compulsory vocational therapy. The Public Health Act from 13 , the first general Health Act after and in force until , and the Statute for its implementation 14 , introduce in the national legislation: the general principle for consent for each assessment and treatment, the concept of " obligatory treatment ", the definition of the mental disorders subject to coercion, the deadlines for forensic psychiatric assessment, and the regulation of admission on emergency basis, while actually reinforcing the penal procedure as described above and the rules of the Decree nr.
There are no special texts in this Act about mentally ill, apart from those regulating the involuntary treatment. The terms used for involuntary treatment reflect ambivalence of the attitudes and of the approach. While " obligatory treatment " is the same term as the one used in infectious diseases, implying that the coercive measures are of preventive nature, there is clear procedural difference in their application: administrative procedure for individuals with infectious diseases, and a penal one for the mentally ill. Involuntary treatment applied to non-psychotic alcohol and drug addicts according to the Decree nr.
With the amendment of the Public Health Act 13 from compulsory treatment of non-psychotic drug and alcohol addicts was abolished and out-patient and day centre forms of involuntary e.
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Legal developments should be viewed in the appropriate cultural context, if social practices of their implementation are to be understood and placed into a perspective. One of the numerous ways to define culture is based on meaning that people invest in their behaviors and emotions: culture is the system of meanings used to interpret one's experience and to guide behavior Contemporary cultural context in Bulgaria could be best understood through the concept of de-culturation.
De-culturation, viewed as loss of culture basis when no new cultural rules are internalized, is the basic phenomenon in the nowadays experience of change.