China’s Revised Draft Mental Health Law Still Permits Discrimination Against People with Disability
September 12, 2012
On August 27, the National People’s Congress Standing Committee (NPCSC) issued a revision of the October 2011 draft Mental Health Law, which unfortunately still falls far short of complying with the UN Convention on the Rights of Persons with Disabilities (“CRPD” or “the Convention”). The August 27 draft fails to address CHRD’s main concerns detailed in our recent report, “The Darkest Corners”: Abuses of Involuntary Psychiatric Commitment in China. At the same time, CHRD acknowledges that the NPCSC has made some minor improvements in the latest version of the draft law. CHRD calls on the NPCSC to further revise the draft law to comply with the Convention, which China ratified in 2008. CHRD also urges the UN Committee on the Rights of Persons with Disabilities to focus on this issue in its upcoming review of China’s compliance with the Convention on September 18 and 19.
“The current version still discriminates against people with psychosocial disabilities and thus violates the CRPD,” said Wang Songlian, research coordinator of CHRD. “It allows for disability-based detention, and fails to provide sufficient safeguards against the involuntary commitment of people without psychosocial disabilities.”
Our main concerns with the August 27 draft are the following:
• Disability-based detention: The NPCSC removed a controversial provision that appeared in the previous draft that allowed commitment of individuals who, “if not hospitalized, would have a detrimental effect on their own treatment.” However, the current version continues to allow for involuntary commitment of individuals diagnosed with “serious mental disorders” who have caused harm to, or are at risk of harming, themselves or others. Under current Chinese law, individuals who do not have psychosocial disabilities who have caused harm to others are of course subject to criminal prosecution; however, they cannot be deprived of liberty for being a “risk” to themselves or others, or for causing harm to themselves. Individuals should not be singled out on the basis of their disability for different standards for deprivation of liberty according to Article 14 of the CRPD, which states that persons with disabilities enjoy the right to liberty “on an equal basis with others.”
• No right to retain legal capacity: As with the prior draft, the August 27 revision offers little protection against a common current practice by psychiatric hospitals in which patients are assumed to have no legal capacity and are assigned “guardians”—usually those who initiated the commitment—without legal procedures. The current version of the draft law stipulates that individuals who meet the criteria above can be involuntarily committed by “close relatives who bear the responsibility of guardianship,” who also enjoy discharge authority. China’s General Principles of Civil Law stipulates that that only after a citizen has been declared legally incompetent by a court can a guardian act on behalf of that citizen, but the revised draft, like the prior draft, fails to clearly differentiate between “close relatives” and “guardians.” In addition, police, work units, neighborhood or village committees also have the power to commit individuals who have caused or at risk of causing harm to others.
• Lack of access to justice: The current draft shows little improvement with respect to access to justice for those involuntarily committed. Like the prior version, patients can seek reviews of their diagnosis by psychiatrists, but the review mechanism still precludes judicial involvement. Although CHRD welcomes the addition of an article which provides that patients or their close relatives can file lawsuits against individuals, hospitals or other relevant units who violate the Mental Health Law, CHRD is not optimistic that patients will be able to obtain redress for the wrongs they have suffered. As discussed in our recent report, there are many hurdles for those involuntarily committed who attempt to seek legal remedies. First, patients need to have access to legal counsel. Like the prior draft, the August 27 version does not guarantee such access and currently psychiatric hospitals routinely bar lawyers from meeting their clients. Second, courts may refuse to accept such cases, especially when the police or other state agents ordered the commitment. Even if a court accepts the case, it might rule that the individual does not possess civil legal capacity and thus cannot be a plaintiff in the case. During the legal proceedings, which can last for months or even years, individuals continue to be held against their will in psychiatric hospitals. In some cases, institutionalized plaintiffs have died while their lawsuits were being heard.
• Restricted right to communication: The current revision continues to restrict a patient’s right to communicate with people outside of psychiatric institutions “during an acute phrase of the illness” or “to avoid hampering of treatment.” Restricted communication makes it even more difficult for patients to challenge their commitment and heightens their risk of being abused.
• Treatment without consent: The NPCSC removed Article 35 (2) of the previous draft, which provided that a patient’s consent must be obtained before treatment, except when the patient is “unable to recognize or control his or her own conduct,” then the guardian’s consent is sufficient. While CHRD welcomes the scrapping of the clause that allows a guardian’s consent to substitute for that of the patient’s, removing the requirement of a patient’s consent to treatment is alarming. In the current version, a patient’s written consent is required only in two situations: when surgeries will result in a loss of organ function and for clinical experiments related to the treatment of mental disorders. However, even in these two scenarios, a guardian’s written consent may still be substituted for that of the patient when “the views of the patient cannot be obtained.” According to the UN Special Rapporteur on torture, medical treatment without the free and informed consent of the persons concerned may constitute torture and ill-treatment under international human rights law. Currently, forced treatment and physical restraints are widely used in China’s psychiatric hospitals.
With these concerns in mind, CHRD calls on the NPCSC to further revise the Mental Health Law to comply with the Convention. Specifically, the law should:
• Prohibit the involuntary commitment of people with psychosocial disabilities;
• Replace the regime of guardianship and substitute decision-making with supported decision-making, a process by which persons with psychosocial disabilities are given adequate assistance so that they are able to make decisions according to their own wishes to the greatest extent possible;
• Stipulate effective access to justice on an equal basis with others, such as the right to counsel, for persons with psychosocial disabilities, including patients in psychiatric hospitals;
• Stipulate that medical treatment must be based on the informed consent of the patient concerned;
• Remove all restrictions on patients’ rights to communicate with people outside of the psychiatric hospitals; and
• Recognize the “equal rights of all persons with disabilities to live in the community.”
Renee Xia, International Director, +1 240 374 8937, firstname.lastname@example.org
Wang Songlian, Research Coordinator, +852 8191 1660, email@example.com
 The Draft Mental Health Law of the People's Republic of China (中华人民共和国精神卫生法（草案）) was released for public comment on October 29, 2011, http://www.npc.gov.cn/npc/xinwen/lfgz/flca/2011-10/29/content_1678355.h… (“October 2011 Draft MHL”).
 The Second Reading Draft Mental Health Law of the People's Republic of China (中华人民共和国精神卫生法（第二次审议稿）), August 27, 2012, http://www.mdrights.org/html/574.html (“August 27 draft”).
 October 2011 Draft MHL, Article 25.
 August 27 draft, Article 28.
 Ibid. Articles 29, 33, 42 and 43.
 The General Principles of Civil Law of the People's Republic of China (中华人民共和国民法通则) was adopted by the National People’s Congress on April 12, 1986, and took effect on January 1, 1987.
 August 27 draft, Articles 33 and 34.
 Ibid. Article 78.
 Ibid. Article 44.
 Ibid. Article 41.
 UN General Assembly, “Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment: Note by the Secretary-General” (A/63/175), paragraph 51, July 28, 2008, http://www.unhcr.org/refworld/docid/48db99e82.html.
 UN Committee on the Rights of Persons with Disabilities, “Consideration of reports submitted by States parties under Article 35 of the Convention: Concluding observations of the Committee on the Rights of Persons with Disabilities: Tunisia” (CRPD/C/TUN/CO/1), May 13, 2011, paragraph 22, http://www.ohchr.org/EN/HRBodies/CRPD/Pages/Session5.aspx; for a discussion about substitute and supported decision-making, see UN, “Handbook for Parliamentarians on the Convention on the Rights of Persons with Disabilities,” Chapter 6, http://www.un.org/disabilities/default.asp?id=212.
 CRPD, Article 19.
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