بازداشت و درمان اجباری بیماران روانی: قانون بهداشت روانی در چین 2012

The long-awaited Mental Health Law of China was passed on 26 October 2012 and took effect on 1 May 2013. Being the first national legislation on mental health, it establishes a basic legal framework to regulate mental health practice and recognizes the fundamental rights of persons with mental disorders. This article focuses on the system of involuntary detention and treatment of the mentally ill under the new law, which is expected to prevent the so-called “Being misidentified as mentally disordered” cases in China. A systematic examination of the new system demonstrates that the Mental Health Law of China implicitly holds two problematic assumptions and does not provide adequate protection of the fundamental rights of the involuntary patients. Administrative enactments and further national legislative efforts are needed to remedy these flaws in the new law.

Involuntary detention and treatment of alleged mentally ill patients has been a controversial and sensitive issue in the recent Chinese mental health practice. In December 2005, a successful businessman Mr. He Jinrong was involuntarily sent to Guangzhou Brain Hospital by his wife and son. He was forced to receive treatment and medication for thirty days. His mother and brother claimed that Mr. He was of sound mind and requested an immediate discharge. However, the hospital responded that in order to discharge him his wife's consent would be needed since she was his first-rank guardian. Subsequent to his release, Mr. He discovered that his wife had filed a divorce action after taking away all of his valuable possessions. He later sued his wife and the hospital for tortious liabilities. The forensic authenticator delegated by the court testified that Mr. He had no mental disorder at the time of his involuntary admission to the hospital. The court awarded compensation for his emotional distress but denied his other claims including an apology from the defendants (Yang, 2011). More astonishingly, a person without mental disorder Mr. Xu Lindong was involuntarily detained in Zhumadian Mental Hospital and later Luohe Mental Hospital for over six and a half years by a local government,1 which saw him as a troublemaker because he spared no effort to defend the rights of his disabled neighbors in a land-taking dispute between his neighbors and the local government. During his detention, he was physically restricted for forty-eight times and forced to take medication for an ongoing period, received electroconvulsive administration for fifty-four times. He committed two unsuccessful escapes and attempted a number of suicides. The deputy president of Luohe Mental Hospital insisted that the local government, but not his family members, had a right to make medical decision on his behalf. Mr. Xu was discharged in 2011 and agreed to settle the case with a compensation paid by the local government (Xin, 2010). Apart from the two typical cases above, the Chinese media had been reporting twenty other similar cases by March 2009.2 Such illegal detention still occurred thereafter (Jiang, 2012). The public has created a new term “Being misidentified as mentally disordered” (Bei Jingshenbing) to label events of the kind. The term in Chinese implies that a person without mental disorder who has been misidentified as mentally disordered for a non-medical reason has little chance to deny the misidentification. The “Being misidentified as mentally disordered” cases show that China's system of involuntary detention and treatment of the mentally ill had been seriously abused to deprive a sound person of physical liberty and autonomy in family disputes and right defending cases ( Liu, 2011). On the other hand, China has a large number of mentally ill patients who could not access to basic mental healthcare and rehabilitation services. In 2009 the National Center for Mental Health of the Chinese Center for Disease Control and Prevention estimated that there were more than one hundred million people with mental disorders and sixteen million people with severe mental disorders in the country (Liang, 2011). Among those people with severe mental disorders, 60% might harm themselves and 30% might attempt suicide (Liang, 2011). According to China Health Statistics Yearbook 2012, the numbers of psychiatric outpatients and inpatients were 27,410,000 and 1,280,000 respectively (1.2% of the total outpatients and inpatients), the number of beds for psychiatric inpatients was 213,877 (5.8% of the total beds), and there were around 13,000 practicing psychiatrists (1% of the total medical practitioners)(Ministry of Health, 2012). In other words, for the year of 2011, less than 8% of those with severe mental disorders were admitted to hospital and the ratio of psychiatrists to those with severe mental disorders was less than 1:7692. The fact that most people with severe mental disorders have not received the necessary medical treatment poses a potential threat to the safety of their own and others. On 26 October 2012, the Standing Committee of the National People's Congress of China passed the long-awaited Mental Health Law (the MHL) in the backdrop described above. It came into force on 1 May 2013. The MHL has eighty-five provisions and provides a comprehensive set of legal rules on mental health promotion and prevention, and diagnosis, treatment and rehabilitation of mental disorders. The law aims to develop the mental health system, regulate the mental health services and protect the legal rights and interests of patients with mental disorders.3 Particularly, the MHL is expected to prevent the “Being misidentified as mentally disordered” cases by establishing a clear and reasonable system of involuntary detention and treatment of the mentally ill. This article focuses on this system under the MHL. Part II of the article discusses the legislative debate on the system of involuntary detention and treatment of the mentally ill during the MHL deliberation process. Part III presents the legislative framework of involuntary detention and treatment of the mentally ill under the MHL. Part IV analyzes two problematic assumptions implicitly held by the MHL. Part V discusses the inadequacies of the MHL in protecting the legal rights of the involuntary patients. The article concludes with two brief suggestions for the implementation of the MHL.

The promulgation of the MHL fills a gap in the national mental health legislation of China. This article only focuses on its system of involuntary detention and treatment of the mentally ill. Based on the discussion made above, the MHL is far from satisfactory to protect the legal rights and interests of the involuntary patients. In fact, the MHL intended to solve legal defects showed in the “Being misidentified as mentally disordered” cases, but it has not successfully achieved this purpose. The MHL leaves a set of new problems unsolved, which will certainly bring about much practical difficulty in its implementation. In addition to the specific proposals to improve the MHL as made above, this article further provides two brief suggestions for the implementation of the MHL. To remedy the ambiguity and the roughness of some provisions of the MHL, the State Council or the Ministry of Health needs to make detailed administrative enactments for the purpose of clarification or reification as soon as possible. For other flaws in the MHL as analyzed above, the National People's Congress or its Standing Committee needs to remedy them in the next-round amendments.