A Suggestion for China’s New Mental Health Law

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I’ve written before about mental health issues in China, including the problem of involuntary detention. As happens in many nations (including the U.S. not very long ago), the system can and is often abused by local officials, judges, police, etc. If someone is making a lot of trouble, particularly if that person is a woman, well, simply declare her crazy and lock her up.

Legal reform to the rescue, in the form of a new mental health law, which is currently being drafted and discussed. China Daily had a story on this yesterday, which included the all-too-usual horrific tale of a guy from Hubei who was locked up against his will for 1,600 days. He and others are now speaking out on the need for reform:

The Hubei province resident and four other people who say they were wrongfully placed in a mental hospital sent a letter to the country’s top legislature on Monday, calling for a policy that will let patients enlist deputies – either relatives or lawyers – to help them appeal diagnoses they disagree with.

The letter offers advice about two draft laws that are now being discussed by the National People’s Congress Standing Committee – the draft mental health law and the draft amendment to the Civil Procedure Law.

[ . . . ]

The draft mental health law, submitted to the top legislature for a first reading in October, says an insane person should only be placed into a hospital in a way that accords with the “voluntary principle”. It also says that only patients who suffer from severe mental disorders, or are believed to pose dangers to society, can be rehabilitated without giving their consent.

There are of course situations where involuntary commitment makes sense, such as when someone is either a danger to himself or to society. The devil is in the details, though, and abuse can occur if there is no procedure in place to allow patients to challenge such determinations.

The reference in the above quote to enlisting the aid of “relatives or lawyers” to assist in appealing decisions is extremely important. There are different ways to go about this.

In many countries, health care decisions in general can be made by third parties via Powers of Attorney (sometimes called Durable POAs), Living Wills or the equivalent, where the patient has identified such an individual in a legal document prior to becoming incapacitated.

If no such document exists, and questions arise regarding treatment, a court may appoint an individual to represent the patient and essentially look out for their interests. In the U.S., this is referred to as a guardian ad litem, a concept originally applicable to certain formal legal proceedings and later broadened to include divorce cases, commitment hearings, etc. (applicable when the case deals with minors, persons with mental illness, and when the elderly are mentally incapacitated). A “conservator” is a similar concept.

Depending on the situation, a system should allow for patients, if possible, to name a preferred guardian, who may be required to be recognized by the court. If no such individual is named beforehand, the court or other government body can name a guardian from a pool of experts or individuals related to the patient (the latter could include the patient’s attorney).

The point here is to have an individual involved whose responsibility is to argue on behalf of the patient. Given the history here, it’s sorely needed.

Let’s hope the new law includes rules for the appointment of a guardian or conservator.