The New Chinese Mental Health Law

Psychiatry, Psychology and Law

Volumn 21, Issue 5, 2014, Pages 669-686

  Zhao, X ^a   Dawson, J ^b  

^a SHANDONG UNIVERSITY OF TRADITIONAL CHINESE MEDICINE   (China)

^b UNIVERSITY OF OTAGO   (New Zealand)

Author keywords

adult guardianship; civil commitment; compulsory treatment; human rights; mental health law

Indexed keywords

EID: 84912002875     PISSN: 13218719     EISSN: 19341687     Source Type: Journal    
DOI: 10.1080/13218719.2014.882248     Document Type: Article

References (177)

1. The Discussion Draft of Mental Health Law of People’s Republic of China (2011).
2. Mental Health Law of People’s Republic of China (2012, Standing Committee of NPC). For an English translation of the Law, please
3. HH Chen, MR Phillips, H Cheng, QQ Chen, XD Chen, D Fralick, YE Zhang, M Liu, J Huang and M Bueber, ‘Mental Health Law of the People’s Republic of China (English translation with annotations)’ (2012) Shanghai Archives of Psychiatry 24, 305.
4. Yang Shao, Bin Xie, Mary-Jo Del Vecchio Good and Byron J. Good, ‘Current Legislation on Admission of Mentally Ill Patients in China’ (2010) International Journal of Law and Psychiatry 33, 52.
5. See Ying Li, ‘The Birth Story of Chinese Mental Health Law’ [2013] (5) Spring Breeze 20 (in Chinese)
6. Although the Chinese national Marriage Law (1980) is very nonspecific about it, it appears there have been regulations, both national and local, and practices restricting marriage and childbirth for people suffering from mental illness in China. What is completely unknown is how rigorously and universally these are enforced.
7. Veronica Pearson, ‘Law, Rights, and Psychiatry in the People’s Republic of China’ (1992) International Journal of Law and Psychiatry 15, 409.
8. Xuetao Huang, Xiaohu Liu and Jiajia Liu, ‘Analysis and Report on Chinese Law on Hospitalization and Treatment of Mentally Disordered Patients’ http://blog.sina.com.cn/s/blog_66b9e1f30 100m2h1.html accessed 17 February 2013 (in Chinese).
9. That has attracted international attention. See United Nations Committee on the Rights of Persons with Disabilities, ‘Concluding Observations on the Initial Report of China, Adopted by the Committee at its Eighth Session (17–28 September 2012)’ (2012 15 October) para 25 www.ohchr.org/Documents/HRBodies/CRPD/8th Session/CRPD-C-CHN-CO-1_en.doc accessed 15 July 2013.
10. Legislative Affairs Commission of Standing Committee of National People’s Congress, ‘Interpretation on Mental Health Law of People’s Republic of China’ (Law Press China 2012) 377 (in Chinese) (consultation and investigation materials include those concerning cases of abuse of involuntary admission and treatment).
11. Law, arts 4(1), 26(1).
12. Law, art 5.
13. Law, arts 27(2), 30, 39, 43, 47.
14. Law, art 4 (1).
15. Law, art 26 (1).
16. Law, art 46.
17. Law, arts 4(3), 23(4), 47.
18. Law, art 4 (2).
19. Law, arts 75, 77, 78, 81, 82.
20. Law, art 37.
21. Pearson (n 6) 421 (raising concerns about the routine use of ECT as a therapy or as a threat or a punishment, the use of psychosurgery, the lack of consent to treatment, the custodial nature of most settings, the lack of any effective protection against compulsory detention, the summary removal of civil status, and the lack of an appeal mechanism)
22. United Nations Committee on the Rights of Persons with Disabilities (n 8) para 27 (raising concern about the ‘correctional therapy’ at Chinese psychiatric institutions).
23. Law, art 27.
24. Law, art 28.
25. Law, art 25(1).
26. Law, art 29.
27. Law, art 26.
28. Law, art 32.
29. Sometimes it is translated into ‘certification’ (e.g., Chen et al. (n 2)), or ‘appraisal’ (e.g., Pearson (n 6) 411). They point to the same Chinese word, Jianding.
30. Law, art 35(3).
31. Law, art 37.
32. Law, art 39.
33. Law, art 38.
34. Law, art 41.
35. Law, art 42.
36. Law, art 43(1).
37. Law, art 43(3).
38. Law, art 40(1).
39. Law, art 50.
40. Law, art 49.
41. Law, art 83(1).
42. Law, art 26(2).
43. WHO, ‘Resource Book on Mental Health,Human Rights and Legislation’ (WHO 2005) 26.
44. Law, art 30.
45. Law, art 24(1).
46. Law, art 55(1).
47. Law, art 68(1). It seems that the ‘free’ ‘basic’ public healthcare offered does not include free treatment. The ‘basic’ public healthcare provided mainly includes those relating to establishing health records for those patients for the purpose of information management, regular follow-up visits to the patients for the purpose of evaluating dangerousness, intervention such as health education, rehabilitation guidance, psychological support, and annual health examination.
48. Interpretation (n 9) 191–92.
49. Law, art 83(2).
50. Law, art 27(1).
51. The final and Draft versions have somewhat different formulations of this clause. Nonclinical criteria are more visible in the Draft.
52. See Draft, art 23 (‘The diagnosis of a mental disorder should not be based on reasons other than mental health status’ [emphasis added]). According to the official explanation of the new Law, the rule that the diagnosis should be based on mental health status implies that it should not be based on such factors as an individual’s political, economic, social status or cultural, racial or religious factors.
53. See Interpretation (n 9) 83.
54. See United Nations Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care (UN General Assembly Resolution 46/119, 17 December 1991) Principle 4
55. WHO Mental Health Care Law: Ten Basic Principles (WHO/MNH/MND/96.9) Principle 3; WHO (n 41) 27.
56. United Nations (n 49) Principle 16.
57. See also WHO (n 41) 49, 52 suggesting that ‘[i]nvoluntary admission is generally permitted only if all the following criteria are met and the patient is refusing voluntary admission: a there is evidence of a mental disorder of specified severity, and; b there is a serious likelihood of immediate or imminent harm to self or others, and/or a deterioration in the patient’s condition if treatment is not given, . . .’ [emphasis added].
58. Bin Xie, Hongyu Tang and Hong Ma, ‘Chinese Mental Health Legislation: International Perspectives and Chinese Reality’ (2011) Chinese Mental Health Journal 25, 721 (in Chinese).
59. United Nations Committee on the Rights of Persons with Disabilities (n 8) paras 15–16.
60. Jiadong Gu, ‘Constraint on Involuntary Treatment for Mental Disorder Patients’ [2012] (10) Chinese Health Service Management 762 (in Chinese).
61. Law, art 30(1).
62. Draft, art 27(1).
63. Draft, art 27(2).
64. Law, art 30.
65. In its explanatory book on the Law, the legislative body that enacted it even declares openly that both the issue of whether a patient has a severe mental disorder and whether the patient is in need of hospitalization are purely ‘medical’ ones.
66. Interpretation (n 9) 99.
67. Law, art 44(1).
68. Law, art 44(3).
69. Law, art 31.
70. Law, art 44(2).
71. The considerations for this are: (1) guardians may believe that discharge
72. from hospital is more beneficial for patients; (2) guardians can take the full responsibility of guardianship; (3) discharge from hospital may alleviate the economic burdens of patients and their families.
73. Interpretation (n 9) 127.
74. Law, art 32(1).S
75. Law, art 32(2).
76. Law, art 32(3).
77. Law, art 35(1).
78. Law, art 35(2).
79. Law, art 44(4)(5).
80. Law, art 35(3).
81. ‘Rules on Forensic Examination for Mental Illness’ (Ministry of Health of China 1998) arts 12, 13.
82. Interpretation (n 9) 96.
83. Ministry of Health (n 73) arts 2, 42.
84. Draft, art 29.
85. Draft, art 30(1).
86. Draft, art 30(2).
87. Daming Sun, ‘Research on Improving the Forensic Appraisal Provisions in Mental Health Law’ (2011) Chinese Journal of Forensic Sciences 38(4), 40. Some members of the public share the view that authentication bodies are not courts, and therefore should not be authorised to have the final say on involuntary hospitalisation, which constitutes restraint on physical freedom and should be decided by courts.
88. Interpretation (n 9) 366 (on the basis of a survey of the opinions of the public on the Draft).
89. Bin Xie et al. (n 51) 722.
90. Interpretation (n 9) 373, 411, 417.
91. Interpretation (n 9) 267.
92. Interpretation (n 9) 280.
93. Interpretation (n 9) 311.
94. Xiju Zhao, ‘Excessive Deference to Statutory Provisions and Professional Practice in Chinese Law: The Case of Medical Liability for Damages’ (2012) Evidence Science 20, 297 (in Chinese).
95. Cf Taiwan Mental Health Act (1990, amended 2000, 2002 and 2007) art 15 (the evaluation committee for compulsory hospitalization and community treatment is to consist not only of medical professionals, but also social workers, representatives of patients’ advocacy organisations, legal professionals and other relevant professionals).
96. WHO (n 41) 67–69.
97. Law, art 82.
98. Interpretation (n 9) 236.
99. Interpretation (n 9) 237–38 (confirming that the lawsuits under Article 62 may involve administrative, civil or even criminal proceedings, depending on who is brought into court).
100. Interpretation (n 9) 311 (stating that if patients or their guardians disagree with the conclusions about diagnosis or the authentication reports, they can resort to Article 82 and file suits in court).
101. Draft, arts 25, 36, 40, 41 (emphasising that proxy consent of guardians is allowed only when patients are unable to identify or control their behaviours).
102. In the context of criminal law, see Criminal Law of the People’s Republic of China (National People’s Congress 1979, amended 1997, 1999, 2001, 2002, 2005, 2006, 2009 and 2011) arts 17, 19. Article 18 of Chinese Criminal Law states that: ‘If a patient with mental illness causes harmful consequences at a time when he is unable to recognize or control his own conduct, upon verification and confirmation through legal procedure, he shall not bear criminal responsibility, but his family members or guardian shall be orderedto keep him under strict watch and control and arrange for his medical treatment. When necessary, the government may compel him to receive medical treatment. . . . If a patient with mental illness who has not completely lost the ability of recognizing or controlling his own conduct commits a crime, he shall bear criminal responsibility; however, he may be given a lighter or mitigated punishment.’
103. The GPCL aims to protect a wide range of civil rights including: property ownership and related property rights (arts 71–83)
104. Creditors’ rights (concerning law of obligations and contract) (arts 84–93)
105. Intellectual property rights (arts 94–97)
106. Personal rights (arts 98–105).
107. The Chinese approach to the development of a comprehensive and detailed national Civil Code has been to develop its components first and then merge them together. China has a Contract Law (1999), a Property Law (2007) and a Tort Liability Law (2009). It also has marriage and family law, and significant legislation concerning intellectual property. In due course, these will become parts of a comprehensive Chinese Civil Code.
108. General Principles of Civil Law of the People’s Republic of China (National People’s Congress 1986) arts 9, 10.
109. GPCL (n 96) arts 11–13.
110. GPCL (n 96) art 11.
111. GPCL (n 96) art 12.
112. Opinions of the Supreme People’s Court on Several Issues concerning the Implementation of the General Principles of the Civil Law of the People’s Republic of China (For Trial Implementation) (Supreme People’s Court 1988) art 6 (also applicable to persons with limited capacity for civil conduct).
113. GPCL (n 96) art 12(2).
114. GPCL (n 96) art 12(1).
115. GPCL (n 96) art 13(1).
116. Judicial Interpretation (n 100) art 5.
117. GPCL (n 96) art 13(2).
118. Judicial Interpretation (n 100) art 5.
119. GPCL (n 96) art 13(1).
120. GPCL (n 96) art 13(2).
121. Judicial Interpretation (n 100) art 4.
122. Provisional Stipulations on Forensic Examination of Mental Illness (Supreme People’s Court, Supreme People’s Procuratorate, Ministry of Justice, Ministry of Public Security, Ministry of Health 1989) (replaced by Rules on Forensic Examination or Mental Illness 1998) art 20.
123. Draft, arts 25, 36, 40, 41.
124. Draft, arts 25, 36, 40, 41.
125. Law, arts 37, 39, 43, 47.
126. See Interpretation (n 9) 106 (but using ‘competency of insight’ rather than ‘competency’).
127. Law, art 32.
128. Law, arts 31, 35(2).
129. WHO (n 41) 40.
130. United Nations (n 49) Principle 1
131. WHO (n 41) 41.
132. GPCL (n 96) art 19.
133. Judicial Interpretation (n 100) art 7 (a court’s decision on whether or not a person suffers from mental illness shall be based on a forensic examination).
134. Provisional Stipulations on Forensic Examination of Mental Illness (n 110), art 10
135. Rules on Forensic Examination for Mental Illness (n 73) art 42.
136. GPCL (n 96) art 14.
137. Law, art 83.
138. GPCL (n 96) art 17(1).
139. GPCL (n 96) art 17(3).
140. Judicial Interpretation (n.100) art 15.
141. GPCL (n 96) art 17(2). In Chinese law, close relatives include spouse, parents, children, siblings, grandparents and grandchildren.
142. See Judicial Interpretation (n 100) art 12.
143. GPCL (n 96) art 17(2)
144. Judicial Interpretation (n 100) art 17.
145. Judicial Interpretation (n 100) art 19.
146. Judicial Interpretation (n 100) art 14.
147. Judicial Interpretation (n 100) art 11.
148. Judicial Interpretation (n 100) art 14.
149. GPCL (n 96) art 18(1)
150. Judicial Interpretation (n 100) art 10.
151. GPCL (n 96) art 18(3).
152. GPCL (n 96) art 18(5).
153. WHO (n 41) 41–42.
154. Pearson (n 6) 419.
155. Interpretation (n 9) 92.
156. Law, art 28.
157. Law, art 31.
158. Law, arts 37, 39, 43, 47.
159. Law, art 44.
160. Law, art 49.
161. Law, art 59.
162. Law, art 9.
163. Law, art 78.
164. Law, art 79.
165. There are disputes over whether guardians‘ tort liability is faultbased or strict. According to Article 32(1) of Chinese Tort Liability Law (2009), if a person without capacity, or with limited capacity for civil acts, causes damage to others, the guardians shall bear tort liability; but if the guardian has undertaken his responsibility of guardianship, tort liability may be mitigated. That indicates that guardians’ tort liability in Chinese law is faultbased. However, in the case of the Mental Health Law, according to Article 79, if a guardian ignores or vetoes a medical recommendation that there is a need to hospitalize a mentally disordered patient and that causes damage to others, the ‘mitigation’ part of Article 32(1) of Chinese Tort Liability Law will not apply. That suggests that a guardian’s tort liability, in that context, is a strict one, with no consideration of whether the guardian has acted responsibly. See Interpretation (n 9) 228–29. The application of such strict liability may be regarded as a kind of ‘punishment’ for the guardian’s not honouring medical opinions.
166. Bin Xie et al. (n 51) 724.
167. Xuetao Huang et al. (n 7).
168. Xuetao Huang et al. (n 7).
169. Tort Liability Law of People’s Republic of China (2009, Standing Committee of NPC) art 55(1): ‘Medical professionals shall, during diagnosis and treatment, inform patients about their conditions and treatment measures. If surgery, special examination, or special treatment is required, medical professionals shall disclose to patients about medical risks, alternative treatment plans and other information in a timely manner, and obtain their consent in writing. If it is not advisable to disclose information to the patient, information disclosure shall be served to his close family members whose written consent shall be obtained’ [emphasis added].
170. United Nations Committee on the Rights of Persons with Disabilities (n 8) para 9.
171. United Nations Committee on the Rights of Persons with Disabilities (n 8) paras 15–16.
172. United Nations Committee on the Rights of Persons with Disabilities (n 8) paras 23–24.
173. United Nations Committee on the Rights of Persons with Disabilities (n 8) paras 21–22.
174. United Nations Committee on the Rights of Persons with Disabilities (n 8) para 37.
175. United Nations Committee on the Rights of Persons with Disabilities (n 8) para 38.
176. United Nations Committee on the Rights of Persons with Disabilities (n 8) para 25 (explicitly mentioning that petitioners are involuntarily committed to psychiatric institutions)
177. Pearson (n 6) (illustrating that, in China, emphasis is given to the importance of maintaining social order rather than the preservation of individual freedoms; but, after reading through hundreds of case files, the author found no evidence that sane people are being detained for political offences).