Mental health law requires details

The draft mental health law, which was published by the State Council's Legislative Affairs Office and released for a one-month public consultation, has raised widespread concern.

The high degree of concern is unsurprising because the legislative process for the proposed law was launched in 1985, lasted 26 years and has undergone 10 revisions.

During the uncommonly long period, establishing a legal basis for the medical treatment and protection of rights for mentally challenged people has remained in a vacuum due to the great inconsistency of views among various advocates.

Now, many experts are making their opinions of the draft law known to the public. Dong Wenyong, a professor at the Chinese Academy of Social Sciences' Institute of Law, is one such person.

In Dong's view, the implementation of a basic law for better protecting people suffering a mental disorder should no longer be delayed. He points out that statistics from the Chinese Center for Disease Control and Prevention show the number of mentally ill people surpassed 100 million in 2009.

Dong believes the situation is the result of a legislative process that has taken too long.

A typical example of abuse of involuntary commitment outraged the public this year. A man named Xu Wu in Wuhan, Central China's Hubei province, said he was sent to a psychiatric rehabilitation facility by his employer over wage disputes. Xu was finally released, but only after nationwide concern was aroused.

Dong argues that the law should establish a clear definition of "mentally ill" and discussion should be had as to whether or not a strictly defined explanation for compulsory commitment should be adopted.

If such loopholes remain open, Dong warns, the situation will hardly improve.

Dong suggests adding an article to the draft law that specifies the rights and interests of the mentally challenged, such as their rights to education, employment and social security. In addition, their willingness to accept a certain type of treatment should especially be protected and respected.

Furthermore, measures protecting these rights and how to differentiate between people who can be fully, partly or not at all responsible for their actions should also be included. In other words, the higher the degree of specification, the lower the chance people will fall victims to incorrect treatment, Dong says.

Another aspect Dong says is important is the custodian system the draft law introduces.

The notion of a custodian comes from the country's civil law, which governs civil legal relations among equal persons. However, the draft mental health law involves the public interest, and the legal relationship it governs between the mentally ill and healthy people is unequal.

The custodian system serves to better look after those who are suffering and prevent them from doing harm to others, but lacks a means to help patients recover and return to a normal life. Moreover, if a patient is hospitalized, the system does not take effect, while appointing a custodian is a long and complex legal procedure. As a result, the system may not be able to help in time, especially in emergency cases, such as those that involve extreme conduct by mental patients, Dong says.

As an alternative, Dong suggests establishing a sound nursing system that includes a custodian, first-aid, a detention center, a compulsory rehabilitation center and other social organizations under certain legal authorization that would take charge of nursing patients during different periods of treatment. Caregivers' responsibilities and obligations in different treatment periods should be clarified and strictly restricted, while supervision should also be carried out as part of caregivers' duties.

Another recent case serves as proof of the need to follow Dong's suggestion.

In February, a 45-year-old jeweler in Nanping, in the eastern province of Fujian, was bundled up and sent to a mental hospital by several people led by his wife, who claimed her husband had symptoms of mental illness and needed compulsory hospitalization. When the jeweler was finally deemed to be clear of symptoms of mental illness and released 56 days later, he found his wife had fled with his store's 4 million yuan ($625,000) in jewelry and his stocks, worth 800,000 yuan, had also been cashed in.

This aspect of the issue must be addressed because compulsory commitment has been very controversial in recent years as ordeals like the one suffered by the Nanping jeweler have come to light.

The draft law stipulates that involuntary hospitalization can be introduced only when the mentally ill can not recognize or control their own behavior, and have hurt themselves or others, or disturbed public order. But the "disturbing of public order" clause can be easily abused because it is quite broad. It is also not an international standard for forcing a person into a psychiatric facility.

Additionally, the draft law pays little attention to the issue of raising funds for the treatment of the mentally ill and its encouragement of local governments to introduce measures to run treatment institutions also lacks concrete measures, Dong says.

Thus, for the reasons pointed out by Dong, the draft law should include greater detail to better protect both mental patients and society.

The author is a writer with China Daily.

(China Daily 09/21/2011 page8)