How can the P.R.C.'s national "Mental Health Law" (Draft) be improved?

The team of public interest advocates at Equity & Justice Initiative, Yirenping's partner organization in Shenzhen. From left to right: Finn Kwok, Pan Jiang, Renwang Zhang, Alice Wong, Xiaohu Liu, Xiaoxuan Huang.

How can the P.R.C.'s national "Mental Health Law" (Draft) be improved? Alice Wong, an attorney with Equity & Justice Initiative — Yirenping's partner organization in Shenzhen — has delivered her suggestions to the Legislative Affairs Office of the State Council (ZH original / EN translation).

Below are the main talking points of Alice Wong's formal comment on the national "Mental Health Law" (Draft).

• Pertaining to substantive criteria for involuntary treatment:

1. In the "Mental Health Law" (Draft), "Has dangerously disturbed public order" is one of many criteria that can be grounds for involuntary diagnosis and improper commitment in a psychiatric institution. Such criteria can be very easily abused, and should be deleted.
2. Criteria should be added to ensure that involuntary commitment and treatment is in the patient's best personal interest. The "Mental Health Law" (Draft) must be clear: all hospitalization and treatment conducted without personal consent should be considered involuntary; therefore, procedures and mechanisms to challenge such involuntary hospitalization and treatment shall apply.

• Preventing abuse of the custodial guardian power and judicial protections related thereto:

1. Involuntarily hospitalized patients' right to legal counsel must be ensured.
2. "Capacity of conduct" determinations are a judicial power, and must be verified by a court of law after an urgent committal.

• Regarding the commitment of homeless persons suspected of suffering from a mental disorder:

1. To ensure that commitment is premised upon the patient's interests, Civil Affairs Departments should exercise custodial guardian power in a temporary guardian capacity over homeless suspected sufferers of mental disabilities who have been involuntarily hospitalized, and whose close kindred relatives cannot be found.

Conclusion

Every case of psychiatric commitment, while involving intersecting propositions of medical judgments, ethical judgments and judicial judgments, can implicate innumerable combinations of relationships between symptoms, household society and the law, and an attempt to depend upon substantive legislation to establish an appropriate distribution of rights is almost an impossible task.

Front-end judicial review of cases involves immense social cost, and might be unachievable for the time being. Dispute resolution at the midpoint has already proven to be a weak defense after rights have already been infringed. Without relief there is no power, common relief is hopeless, and the next best thing is to permit persons able to save themselves to organize their own rescue. This already constitutes the stubborn pursuit presently before us.

Owing to a shortage of judicial resources, inadequate staff training, crude system construction, and an imbalance of power, the mentally ill who should be committed are not committed, and those who should not be committed are committed. This not only wastes social resources, but citizens thereby face a double threat, and society has lost its sense of security. Society's sorrow lies not in that resources are lacking, but rather in that the administration of justice has been to no avail. Although rule of law has a high cost, it is the only route for our personal safety. Social resources not invested in building the legal system and its institutions will, nevertheless, be astonishingly squandered in other ways.