About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

6 Aust. & N.Z. J. Criminology 1 (1973)

handle is hein.journals/anzjc6 and id is 1 raw text is: AUST. & N.Z. JOURNAL OF CRIMINOLOGY (Mar., 1973): 6, 1 EDITORIAL The Right to Treatment TODAY psychiatry and psychiatric treatment are playing a considerable part in sentencing and they show signs of playing an ever-increasing role. Clearly the time is coming when some stock-taking and evaluation is most necessary in order that the various claims being made by psychiatrists and psychotherapists may be supported or refuted, as also the claims of others that the advent of the 'psychiatric era' correlates in a causal sense with penological liberalism and 'softness' and an increase in the crime rate. One aspect of this matter has been touched upon in an article in this Journal). It is almost certainly true that psychiatry in Australia and New Zealand has not been used in the criminal process in the manner it appears to have been used in some cases in the United States of America; for example, Rouse(2) concerned with insanity and Millard(3) in relation to sexual psychopathy. Nevertheless, it is probably worthwhile looking at some recent commentary stemming from the United States as there may well be cause for us to pause and take a look at our own practices and the direction in which we are moving. Robitscher, in an interesting article Courts, State Hospitals and the Right to Treatment (4) comments on a concept originated by Birnbaum(s), The Right to Treatment. As originally propounded, the concern was not a matter of psychiatric treatment as a right for all. Rather it was concerned with the plight of the involuntarily hospitalized state hospital patient who was not receiving the same quality or quantity of care that was available to private psychiatric patients and who presumably therefore was being held for a longer period than those patients. It is to be noted that Birnbaum is not a Szaszian who denies the propriety of all involun- tary hospitalization. Robitscher writes: The enforcement of the right to treatment under the Birnbaum proposal would be by a habeus corpus proceeding. By demon- strating that hospitals were staffed below a minimum ratio or that consultations were spaced farther than minimal periods of time the patient would be entitled to release. Recently, expand- ing his pragmatic standards for proof of adequacy of treatment, Birnbaum() spelled out a more complete list of desirable institution-wide standards that must be met for an inmate to be retained: (1) accreditation by the Joint Commission on Accreditation of Hospitals; (2) qualification for Medicare and 1. See p. 47 2. Rouse v. Cameron 373 F 2d 451 (DC Cir 1966). 3. Millard v. Cameron (DC Cir 1966) No. 19, 584. 4. Robitscher, J. (1972) Amer.J.Psychiat. 129 298. 5. Birnbaum, M. (1960) Amer. Bar Assoc. J. 46 499. 6. Birnbaum, M. (1971) Some Remarks on the 'Right to Treatment'. Alabama Law Review 23 623. 1

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most