Still Crazy After All These Years?

Over a Quarter-Century after China Began Drafting its Mental Health Law, a system for regulating compulsory treatment and involuntary commitment is promulgated.

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Over a Quarter-Century after China Began Drafting its Mental Health Law, a system for regulating compulsory treatment and involuntary commitment is promulgated. — by Jeremy Daum

Mental health and the law has been a theme of Chinese legal reform in 2013 that has received less attention than it deserves in both the foreign and domestic press. China’s mentally ill population is estimated to be about 17. 5% of the total population, with 1% (or even as high as 16 million people) diagnosable with psychotic disorders. [i] At the same time, the number of psychiatric care providers is very limited, with only about 20,000 registered psychiatrists for the whole country, about 15 psychiatrists for every 1 million persons. [ii] This is about one tenth of the ratio in the United States which in turn lags behind many European nations. Moreover, of those suffering from mental disorders; many in China will never seek help as a result of associated stigma.

On New Year’s Day, China’s revised Criminal Procedure Law (CPL) took effect, the implementation of which brings a host of new challenges and opportunities for courts, procuratorates and public security organs as they try to balance law enforcement needs with increased rights for criminal suspects and defendants. Among the law’s innovations is a new section regarding the compulsory treatment of mentally ill persons found to not bear criminal responsibility in accordance with law, i. e. the criminally insane. The section for the first time sets out the scope, procedures, and supervision mechanisms for compulsory psychiatric treatment in criminal cases.

A second major story involving mental health legislation was the passage of China’s new Mental Health Law (MHL), which, after 25 years of drafting, took effect on May 1. The MHL primarily regulates the provision of mental health services and mobilizes health departments and social institutions to promote awareness of mental health issues. However, the law also touches upon the more sensitive issue of involuntary civil commitment. Stories of parents and spouses having family members institutionalized for financial or emotional gain surface with uncomfortable frequency and this is to say nothing about the tales of petitioners and whistleblowers brought in by authorities.

The release of these new laws shows that China is aware of its problems involving compelled psychiatric treatment and is taking action at the highest levels to resolve them. These problems include both under-inclusion, the failure to give people the treatment they need, and over-inclusion, where people who should not be committed are. Unfortunately, a careful look at the two new laws shows not only that they fail to address key problems in the commitment system, but they also don’t seem to present a unified strategy in those areas that they do regulate. The unexpected result appears to be a scheme where mentally ill persons who have committed a violent crime as a result of their mental illness may be entitled to greater protections than those who have committed no crime at all.

The Criminal Procedure Law:

The Structure of the Law

The Criminal Procedure Law includes six articles discussing procedures for compulsory treatment of the criminally insane. This sparse foundation has already been supplemented by Judicial Interpretations that have legal force, drafted by the Supreme People’s Court ( with 20 relevant articles) and the Supreme People’s Procuratorate (total of 20 relevant articles) and also by case-handling rules from the Ministry of Public Security (3 relevant articles). The outline below attempts to provide some insight into the overall structure of the system created by the law and relevant interpretative documents.

A. Who Qualifies for Compulsory Treatment

Article 284 of the CPL provides that “Mentally ill persons who have been evaluated through statutory procedures as not bearing criminal responsibility under law, who exhibit violent behavior endangering public security and seriously endanger citizens’ physical safety, and who might continue to endanger society, may be given compulsory treatment. ” It can be seen that the requirements for commitment rotate around three considerations: a) the confirmation of a mental illness that excuses the person from punishment b) violent conduct with potential for serious, harmful outcomes c) whether there is an ongoing risk. The SPP and SPC Interpretations, in article 539 and 524 respectively, add the requirement that the violent behavior should already constitute a crime. This may seem redundant given the requirement of a violent act, but it makes clear that a person who has not committed a crime should not be involved in the criminal process at all.

The meaning and relationship of some of these compulsory treatment factors is not only confusing in translation, but in the original Chinese as well. For example, it is difficult to know if there must be a threat to citizens’ physical safety and to public security or if either threat is sufficient alone. The only court to have denied a request for compulsory treatment to date, reportedly did so on the basis of finding that while the defendant serial-robber would likely continue to endanger society, he did not seriously endanger citizens’ physical safety. [iii]This kind of nuance is likely to be less crucial in Chinese criminal practice however, than the vague terms themselves. Returning to the single case of a denied request, the court found that the robber’s having seized women by the neck while taking their money was not ‘serious endangerment of citizen’s physical safety’ because nobody had yet been hurt; a debatable interpretation at least.

B. The Judicial Character of the Decision

The first paragraph of CPL article 285 is perhaps the most critical piece of the entire section as it provides that “[c]ompulsory treatment of mentally ill persons on the basis of these provisions shall be by decision of a people’s court. ” While there is plenty of room for discussion about the integrity and independence of Chinese judges, putting the compulsory treatment decision in the hands of the judiciary is nonetheless a key step towards ensuring that the decision is made neutrally and on the basis of the legal standards presented. Placing the decision with the courts also gives it a certain weight, emphasizing the importance that a potential deprivation of a citizen’s rights should be given, and a recognition that the decision should not be solely in the hands of administrative organs.

The compulsory treatment hearing is not a prosecution, but an attempt to balance the interests of protecting society, making treatment available, conserving judicial and medical resources and protecting the liberty interest of the hearing’s subject. Still, the SPC Interpretation makes clear that this hearing may become a somewhat adversarial procedure, such as where the family wishes to care for the suspect themselves, and thus requires presentation of evidence which may be examined and debated (SPC 530), and also requires that the proceedings be held in open court unless the subject of the application requests otherwise. (SPC 529).

While a representative of the hearing’s subject will be present, and he is even entitled to legal aid representation (CPL 286), there is no requirement that the subject himself be present at the hearing. This reflects the non-prosecutorial nature of this proceeding, which is neither a chance to educate or condemn an offender, and probably also reflects the courts’ bias that anybody even being considered for commitment will not be able to participate in a hearing. Still, the courts will allow the subject to participate in the hearing if he so requests and is able (article 530), and the court will meet with him before the hearing in all circumstances (article 529). Ideally, the presence of the person facing commitment should be the default position, with an exception only where his conduct was truly uncontrollable and disruptive, but the emphasis on process and representation is a step forward.

Given the judicial character of the procedures, the third paragraph of CPL Article 285, which provides that “prior to the people’s courts making a compulsory treatment decision, the public security organs may adopt temporary protective measures for mentally ill persons exhibiting violent behavior’ should clearly refer to a distinct type of detention. These ‘temporary protective measures’ cannot be ‘compulsory treatment’ which requires a judicial determination, but must be very limited measures allowing public security to protect the public while awaiting formal process. In its case-handling rules, the MPS seemingly recognizes the potential for abuse of these temporary restraints, by requiring that such restraints be approved at the county level or above. (MPS 333).

The Case-handling Rules continue, however, to provide that “if necessary, [the suspect or defendant] may be sent to a psychiatric hospital for treatment. ” (MPS 333). This pre-treatment treatment makes it so that compulsory treatment can actually be provided solely at the will of public security forces after all. If not strictly limited and supervised, this expands the public security powers so as to consume the rule and undermine the judicial character of the decision entirely.

The public security rules do make some effort to ensure that these measures are truly temporary, as the public security organ must submit an opinion on compulsory treatment to the procuratorate within only 7 days of finding the treatment necessary. (MPS 332). Upon receiving the opinion, however, the procuratorate may take up to 30 days to determine whether it will apply to the people’s court for compulsory treatment, and this period may be extended for an unspecified duration if the public security organ is requested to supplement the evidence supporting its opinion, and the time used in supplementary investigation will not be counted against the procuratorate’s time for handling the case. (SPP 544).

The procuratorate also has the power to supervise these temporary restraint measures, providing some measure of oversight. Given the threat to public safety, and the limited resources of psychiatric facilities, however, it is not all that surprising that the compulsory treatment scheme seems to primarily envision the procuratorate admonishing the public security organs to impose restrictive measures rather than demanding they be removed. Where the procuratorate finds there should be measures taken that have not been, they will request an explanation be given within 7 days and demand the imposition or restraints when the explanation is unsatisfactory. (SPC 545). In contrast, inappropriate temporary measures, including physical abuse, will simply result in the issuance of a corrective opinion. (SPC 547). While it is appropriate that there is some process before the imposition of restraints, it is puzzling that there is so little process concerning abuses such as an explicit time frame for issuing the order, implementing corrections or review procedures to ensure that corrections are made.

The following chart illustrates the interactions of various agencies as laid out in their interpretation document:

C. Initiation of Court Procedures for Compulsory Treatment

The first requirement for compulsory treatment under the CPL is that a suspect or defendant be evaluated as a mentally ill person not bearing criminal responsibility under law. In China, a mental health evaluation can be called for at any phase of the criminal process from investigation through trial. Therefore, the public security organs, the procuratorate and the court itself all have the power to call on a forensic evaluator to perform the mental health evaluation. In practice, it is usually the public security organ that requests the evaluation, and while the suspect or his family are never given the power to initiate a forensic mental health examination at any stage of the criminal process, their information and requests often spur police to call for an evaluation.

As questions of compulsory treatment must be resolved by a court rather than an evaluator, the formal initiation process is slightly different. Article 285 paragraph 2 of the CPL provides that “public security organs discovering a mentally ill person who meets the requirements for compulsory treatment shall write out a compulsory treatment opinion and transfer it to the people’s procuratorate. The people’s procuratorate shall apply to the people’s courts for compulsory treatment of mentally ill persons meeting the requirements for compulsory treatment either transferred by the public security organs or that are discovered while performing a review for prosecution. People’s courts discovering in the course of trial that a mentally ill person meets the requirements for compulsory treatment may make a compulsory treatment decision. ” It can be seen that there are two routes for initiating the procedures, a) the procuratorate submits a request to the court for compulsory treatment either on its own initiative or after review of a public security opinion or b) the court initiates the procedures directly.

The supporting documents provide further rules for the timing and the process required for initiation of compulsory treatment procedures. Article 542 and 543 of the SPP Interpretation in particular detail the content of an application to court, and what should be looked for in relevant public security opinions. While the contents are thorough, they still contain the vague standards of the CPL and don’t offer much by way of clarification.

The first paragraph of article 532 of the SPC document, for example, offers courts little guidance on when to initiate a compulsory treatment hearing on its own power, saying only that if it appears the defendant “might meet the requirements for compulsory treatment, [the court] shall follow the statutory procedures for carrying out a forensic medicine mental health examination. Where, having been examined, the defendant is found to be a mentally ill person not bearing criminal responsibility under law, the procedures for compulsory treatment should be used to carry out trial. ” The standards are recited, but not clarified.

These articles also highlight the importance of the forensic examination in the compulsory treatment decision and the deference it receives. One can’t help wonder why more time in the revision of the CPL and the drafting of its interpretations wasn’t spent in clarifying the evaluation procedures that are clearly so determinative, but remain mysterious.

D. Review

Article 287, paragraph 2, of the CPL provides that “if persons placed under compulsory treatment, victims and their legal representatives, or their close family members do not accept the compulsory treatment decision, they may apply for a reconsideration to the people’s court at the level above. “ Chinese criminal cases typically allow for a second-instance trial when a party appeals, but here, because the trial is not a prosecution, there is only a “reconsideration” of the initial ruling. Moreover, unlike trials, the rule seems to allow all interested parties to file for the reconsideration except for the prosecution, which is generally entitled to a counter-appeal in criminal trials. The SPP, however, has remedied this problem, not by finding the right to an appeal or reconsideration, but by giving itself 20 days to issue a corrective opinion to the court when it finds the decision on compulsory treatment improper. (SPP 550). The procuratorate no doubt considers this part of its duty to supervise the compulsory treatment determination (CPL 289), and the court accepts this, by allowing that on receipt of such a correction it will again form a collegial panel and make a decision within one month (SPC 543).

E. Release

As a non-punitive form of detention, compulsory treatment should end when the treatment is no longer required. The CPL recognizes this in article 288, by requiring treatment establishments to periodically evaluate patients to determine if they are still dangerous, and to submit an opinion for release where they are not. The same article’s second paragraph provides another method for release, allowing the patient or his family to apply for his release. In either case, the court will review a diagnostic evaluation and make a decision within one month, which it will then send out within 5 days. A month is a considerable amount of time to detain someone where even the treating organization has already determined that the person is ready for release (SPC 542).

Throughout this discussion compulsory treatment has been used interchangeably with compulsory in-patient (residential) treatment, but the term ‘compulsory treatment’, literally translated form the Chinese, is actually conceivably broader. It is possible that a form of psychiatric probation could be implemented, allowing out-patient treatment for patients who are able to regain control of their actions while taking medicine, with maintaining a drug regimen as a condition of the release. Compulsory medication is also an infringement on liberty, but a patient found to require compulsory treatment under the criminal law, or their legal representative, might be given choice of this less-restrictive option. The Mental Health Law already mobilizes social forces to participate in the care of the mentally ill in their area, and this could include supervision of those released under compulsory treatment orders. At the very least, this would allow persons under compulsory treatment orders to consult with attorneys and other physicians more easily.

The Mental Health Law

Released in the same year as the Criminal Procedure Law, China’s new Mental Health Law also lays out provisions on psychiatric commitment. While this is the portion of the law that has received the most attention, largely because of well-known abuses of the medical establishment to detain or punish even the mentally healthy, it is not the key focus of the law. The law is in many ways admirable, calling for the elimination of discrimination against the mentally ill, for schools to be more conscious of mental health stressors among students, for regulation of the psychology and psychiatry fields and more. The law clearly favors the psychiatric establishment, strictly limiting the professional capacity of non-medical doctors, but also creating new job possibilities for psychologists and counselors through its emphasis on citizens’ overall psychological well-being.

Regarding involuntary commitment, the law lays out several key principles:

A. Voluntariness: Article 27 states that “Except where the law provides otherwise, an individual may not be medically evaluated to determine whether they have a mental disorder against his will“, and article 30 holds that “residential treatment follows a voluntariness principle.

One of the exceptions to the voluntariness of diagnoses is that “close family members may deliver a person suspected of having a mental disorder to a medical establishment for a mental disorder diagnosis. ” (MHL 28). While ideally one’s close family members would have their best interests in mind, this is not always the case and civil commitment can be a powerful weapon. China has already seen publicized cases of spouses delivering each other for treatment so as to claim their assets, and parents delivering their adult children for diagnosis when they disapproved of a romantic partner. A statutory requirement that hospitals must provide diagnosis of any person brought in for that purpose, while undoubtedly meant to ensure equal access to treatment for all citizens, actually makes it easier for family members to have each other held at least temporarily. (MHL 28, par. 3) In earlier drafts of the MHL, the period for diagnosis was limited to 72 hours, but the final text does not contain this requirement and only requires that diagnosis be performed without delay. (MHL 29)

B. Dangerousness: Involuntary treatment is available only when the individual has exhibited dangerous conduct (or even presents a risk of dangerousness) and has a serious mental disorder. (Article 30). The law’s emphasis on making medical, not legal, decisions can be seen in the failure to require that the individual be dangerous as a result of the mental illness. The need for a causation requirement especially important because the definition of ‘serious mental disorder’ is considerably more expansive than that for ‘not bearing criminal liability under law,’ the criminal insanity standard, and some dangerous individuals who would be more properly dealt with in the criminal justice system may find themselves going into civil commitment instead.

Dangerousness (or risk of dangerousness) under the MHL is further divided into two categories: 1) dangers to oneself and 2) dangers to others. (Id. ) If a person is a danger to others, he may be committed against his will or the will of his guardian following an optional review procedure. If they are dangerous only to themselves, they may be released to their guardian if the guardian does not consent to the residential treatment. (Article 32). This is the first of the special privileges granted to guardians of mentally ill persons, an issue discussed more fully below. For now, simply note that when a person is found physically dangerous to themselves, his own objection to treatment is not considered, only that of the guardian.

C. Medical Supremacy: The diagnosis of mental disorders under the MHL is a medical, not legal, determination, during which there is no role for a court. Article 29 provides that “the diagnosis of mental disorders shall be made by certified psychiatric physicians. ” In cases where the patient or his guardian object to commitment, and the patient has been found dangerous to others, they may get a second opinion from two more physicians, and if still unpersuaded, may themselves hire forensic evaluators, who are part of a small subset (about 2,000 nationally) of psychiatric physicians, for a final review. (article 32).

Under the MHL, involuntary residential treatment does not require a finding of a specific medical disorder, but only of a “severe mental illness”, defined broadly as causing “serious deficits in abilities like social adjustment, an incomplete understanding of his own well-being or of objective reality, or an inability to handle his own affairs” (MHL 83). This is in contrast with the Criminal Law’s (CL) standard for mental illness that excuses criminal acts where the suspect had an ‘inability to recognize or control his actions’ at the time they committed the crime (CL 18). Where the medical MHL standard focusses on deficits that might be cured through psychiatric treatment, the Criminal Law’s emphasis is on culpability and awareness of wrongdoing that justify punishment.

The Criminal Law mental illness standard is assessed by a forensic psychiatric expert, who submits an opinion to the organ requesting the evaluation. In addition to their finding a qualifying mental state, a court must separately conclude that the person requires compulsory treatment as described above. Under the MHL, the determination of whether involuntary commitment is needed is part of the same purely medical diagnosis that determines must find a ‘severe mental illness’. The only role for courts is remedial, although the presence of a remedy is welcome. Article 82 provides that individuals, their guardians and their family members have the right to sue for violations of the MHL or of patients’ rights. It may, of course, be difficult for a person placed in residential psychiatric care to contact a court or lawyer to pursue this remedy.

D. The Role of Guardians:

One part of the MHL that has received a considerable amount of criticism is the overemphasis of the role of guardians in the civil commitment process. Throughout the law, guardians are given a number of powers either commensurate to or exceeding those of the patient. For example, guardians may: request a second diagnosis (MHL 32), be informed of treatment plans and options (MHL 37, 39), be informed of any restraints used on the patient (MHL 40), and file suit on behalf of the patient if his rights are abused (MHL 82). For many of these rights, like the rights to be informed, the hospital may inform either the patient or the guardian, meaning that the presence of a guardian can actually preclude the rights of the patient. Examples of powers of guardians that exceed those of the patient include the right to refuse treatment where the patient is found dangerous to himself but not others (MHL 31), and the right to see the patient’s medical file even where the patient is forbidden to see it for treatment reasons (MHL 47).

To be fair, all of these rights are generally in-line with what one would expect a guardian to have as the person with authority to act on the behalf of their ward. What is strange about the Mental Health Law isn’t the grant of these rights, but the law’s assumption that all mentally ill persons will have a guardian and its absence of any procedures for determining whether they do and who that person might be. Remember, the concern in civil commitment is that family members or others will use civil commitment as a weapon against each other, and if treatment facilities grant arbitrary powers to whoever brings in a potential patient, the problem is greatly exacerbated.

Guardianship, of course, is neither a concept unique to China, nor to China’s Mental Health Law; and Chinese Law provides detailed procedures for the appointment of guardians, which are articulated in its Civil Procedure Law (CivPL) and General Principles of the Civil Law (GPCL). Chinese law allows that only minors have guardians except pursuant to a finding that an adult lacks, or has limited, civil competence. (GPCL 11). A mentally ill person lacks civil competence when he is unable to recognize the nature of his actions, and he is considered to have limited civil competence if he can only partially recognize his conduct. (GPCL 13). This determination is made by a court following a court hearing (GPCL 187-189); and to ensure protection of the potential ward’s rights, he must be represented at this hearing by someone other than the potential guardian (GPCL 189) and have the opportunity to challenge the continued need for a guardian in the future (GPCL 190).

Unfortunately, the Mental Health Law uses its own definition of guardian, namely “persons who may assume the role of guardian as provided in the relevant provisions of the General Principles of the Civil Law. ”(MHL 83, emphasis added[iv]). GPCL Article 17, in turn provides that the following categories of person, in order of priority, are eligible to be guardians for mentally ill persons who lack or have limited civil capacity: spouses, parents, adult children, close relatives, any other relative or friend who is willing and has been approved by the person’s workplace or residential or village committee, or even the workplace or basic level committee itself where there is a dispute over who should be appointed guardian. Taken on its face, this list is already anachronistic in its inclusion of workplaces and basic level committees, and is already problematic in its ignoring the will of the ward, but when any person who may be a guardian under this law is granted the rights given guardians in the MHL, the problem is multiplied exponentially. The list is essentially one of all persons who share interests with the ward and thus the people most likely to be concerned with caring for him, but unfortunately, also the people most likely having something to gain by dominating him.

There are undoubtedly those who will argue that this a misunderstanding or mistranslation of the law, and that the MHL intends to embrace the standard meaning of guardian as used in Chinese civil law, with its minor but not devastating problems. If so, this is a welcome interpretation, but it leaves several questions. First, why define guardian at all if there is no meaning unique to this law? Second, why phrase the definition with the conditional “may” rather than defining guardians as persons ‘having been appointed by a court’ to be a guardian? Finally, why not contain procedures for verifying guardianship, at least in cases where the residential treatment is contested? Most likely, having a person to act as guardian was seen as useful to the quick diagnosis and treatment of patients, and this type of medical concern was more visible to the drafters than legal protections.

Comparison and Review: A step back to view the entire system

Law:

CPL and Accompanying Interpretations

MHL

Target of Procedure:Mentally Ill Persons not Bearing Criminal Responsibility Under LawPersons with Severe Mental Disorders
Standard for Involuntary Commitment:
  • Unable to recognize or control own conduct
  • Has committed a violent crime with serious consequences
  • Poses continued threat to society and citizens’ physical safety

 

  • serious deficits in abilities like social adjustment, an incomplete understanding of his own well-being or of objective reality, or an inability to handle his own affairs
  • Has already exhibited conduct that is physically dangerous to self or others, or has a risk of doing so
How Initiated? Procuratorate Application (possibly based on Public Security Opinion) or by court during first-instance trialSomeone bringing in a suspected mentally ill person
Who decides? CourtDoctors
Procedural Safeguards? Public court hearing at which evidence is debated and legal aid provided. Possibility of reconsideration if victims, family, or mentally ill person reject the commitment decisionPossibility of second opinion and third diagnostic opinions if unsatisfied with initial opinions. Possibility of lawsuit in court if rights have been violated.
ConsequencesConfinement in MPS hospitalConfinement in civilian hospital
Release Procedure Upon order of court finding that it is no longer necessary. Upon finding of non-dangerousness

Both the Criminal Procedure Law and the Mental Health Law now provide procedures for the involuntary commitment (compulsory treatment) of certain mentally ill persons. In both these schemes, the confinement of a mentally ill individual is a form of preventative detention, based on providing treatment in an environment where the patient cannot harm others. Under the CPL, the patient’s having already committed a dangerous crime is a prerequisite to commitment and must be proven in court. Treatment of persons not bearing criminal responsibility under law in a Ministry of Public Security run psychiatric facility is not a punishment, but is still aimed at ensuring that another offense does not occur. The MHL however, does not require either an act of violence or a court proceeding of any kind before commitment- only a vague risk of dangerousness to self or others, as verified by a psychiatric doctor.

Simply put, there are less protections provided unwilling patients under the MHL. The MHL procedures, medical in nature and lacking the procedural protections of the courtroom, provide an easy way to confine a person indefinitely without court review. There is no standard of proof for a doctor’s determination that someone presents a ‘risk’ of physically harming themselves or has a serious mental illness. How can one show that such a judgment was not in good faith or was a violation of the patient’s rights, and when facing family members who claim that the patient is a physical threat, what doctor wouldn’t desire to provide treatment rather than risk releasing them if they may harm others?

Even assuming that under most circumstances doctors will work in the best interest of their patients, it will not be easy for them to apply these standards. Consider the case of Chen Dan (pseudonym) that occurred before either the new CPL or the MHL took effect. [v] Chen , an engineer living in Beijing, estranged from her family who disapproved of her boyfriend, when she was brought to the hospital by her parents. The mental institution held her for seventy-two hours for observation before ultimately releasing her as sane. Chen Dan says her detention was devastating despite its relative brevity. She says she was treated with no dignity, observed using the toilet, forced to eat and questioned constantly by many doctors. The hospital says that when she was brought in she seemed extremely agitated and then after a while became withdrawn and tearful. This unusual affect might make more sense knowing that she had just been ambushed by her parents, who with the help of hired thugs, had shoved her into a car to bring her to the hospital. The MHL’s standards cannot prevent a case like this from occurring, particularly given that hospitals are required to diagnose anyone brought to them?

Public security organs face similar questions. The MHL allows, or even requires, that when police encounter a potentially dangerous, potentially mentally ill person, they stop the threat and bring the individual to a medical establishment. (MHL Article 28, par2). Of course, so as not to directly conflict with existing law enforcement rules, the MHL provides that “mentally ill persons who violate the Public Security Administrative Punishments Law or violate the Criminal Law will be dealt with according to the provisions of the relevant law. “(MHL 53). Of course, the standards used in determining whether someone is a criminal suspect, is suspected of having a mental illness and is exhibiting violent conduct are vague, and there will be a fair amount of discretion for these first responders in deciding how to address a situation. Public security forces have seemingly been given painfully little guidance as to how to make this decision, whether they are trying to get the best help available for someone or merely brush them under the rug.

Even more worrisome is the notion that the police or other authorities will use the civil involuntary commitment system as a ready weapon against troublemakers or political opponents, particularly as the reeducation through labor system of administrative detentions is under increased scrutiny and may soon be revoked. Consider a case such as that of Guo Yunrong. Guo was a lower level official who was reporting on his superiors for accepting bribes when he was brought to a mental institution in 1996. He was released almost two years later, but again confined when he began writing petition letters once more. When the hospital is asked what it will take to have him released, officials there say that when the police bring someone in, the police must get him out. The minimal protections and almost no court oversight of the civil commitment system, provide little protection against this sort of attack, even when the rules are followed, let alone when they are totally disregarded.

Further Thoughts. :

With the voluntariness principle and dangerousness standard now clearly established for involuntary commitment, one would expect the first month of the MHL’s enforcement to be fairly tumultuous with a great number of patient’s needing to be released. As much as 80% of the in-patient psychiatric population in China is held involuntarily, and would need to be evaluated again if their commitment is to continue. A Beijing area expert recently reported that 60% of the population should be eligible for release under the new standard. Whether family would be willing or able to care for them upon release is an immediate concern, however. The MHL provides for heightened community rehabilitation programs, but the model of these programs is not clear, nor the standards for requiring participation. There remains a risk that such programs and overly strict supervision of the mentally ill could become a prison without walls. China’s first major challenge in implementing this new law will be in addressing the current residential population and how it makes use of the limited resources it has. A sudden release of large numbers of mentally ill individuals who have been in residential treatment, will create a significant financial and social burden on the society as well as individual families. While the risk of over-inclusive commitment standards has been the primary focus of this article, a violent crime by a released mentally ill person who should have been committed could radically swing public opinion.

 

 


[ii] http://news. xinhuanet. com/english/china/2012-10/23/c_131924661. htm Draft law to promote mental illness awareness

 

[iv]A person with a mental disorder’s guardian, as referred to in this law, indicates a person who may assume guardianship under the relevant provisions of the General Principles of the Civil Law.

About Jeremy Daum 90 Articles
Jeremy Daum is Alex Daum's dad, Elizabeth Jenkins' Partner, China Law Translate's contributing founder, and a Senior. Fellow at Yale Law School's Paul Tsai China Center. He translates, writes, edits, does web-design, graphic design, billing, tech support, and social media outreach for China Law Translate.

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