Officials Review Second Draft of Mental Health Law, Final Draft Expected in 2012

The National People's Congress Standing Committee (NPCSC) reviewed a revised draft of the Mental Health Law (NPC, 29 October 11) during its bimonthly session in late October 2011. In June 2011, the State Council Legislative Affairs Office had released an initial draft (Xinhua, 10 June 11) for public comment. This draft was "repeatedly revised" before being sent to the NPCSC for review, according to a November 21 Sina report. A draft had also been passed "in principle" in a September 2011 State Council executive meeting chaired by Premier Wen Jiabao (PRC government, 19 September 11), but it is unclear which draft the participants reviewed. Legislation must be approved by the National People's Congress or the NPCSC to become law. Chinese officials first put forth a mental health law draft in 1985 (Global Times, 20 June 11).

The Commission observed vibrant discussion among both domestic and international experts following the release of the draft of the Mental Health Law for public comment in June 2011, as reported in the CECC 2011 Annual Report (pp. 30, 137). Some Chinese citizens who claim to have personally experienced "being misidentified as mentally ill" (bei jingshenbing) also wrote an open letter to the NPCSC regarding the draft (China Daily, 16 November 11). Bei jingshenbing is a phrase used widely on the Internet to refer to officials' abuse of psychiatric detention to stifle or punish dissent (see aggregation of Chinese articles on the subject at China Digital Times).

A CECC comparative analysis of the June and October drafts of the Mental Health Law follows.

Highlights:
The October draft retains language from the June draft that could, if fully implemented, effect positive change in the area of rights protection. Examples of this include:
 

• Rights protections for persons living with mental disabilities. The October draft retains language from the June draft prohibiting infringement of the rights to human dignity and personal safety of persons living with mental illness. The October draft also retains language calling for the legal protection of the rights of persons with mental disabilities to privacy and access to education, work, medical treatment, and material assistance from the state and society. (Article 4) Such rights are provided for in the UN Convention on the Rights of Persons with Disabilities (CRDP), which China signed in March 2007 and ratified in August 2008. (See, e.g., Articles 22, 24, and 25-28.)
• Codified standards for diagnosis and treatment. The October draft retains language that tasks the department of health administration under the State Council with determining a set of standards for psychiatric diagnosis and treatment. (Article 21)
• Regulation of the power to diagnose and commit individuals. The October draft retains language mandating that diagnosis be performed by a practicing psychiatrist and, in cases of involuntary admittance, that two or more psychiatrists diagnose the individual and provide a written copy of the diagnosis within 72 hours. (Article 24) These measures could reduce conflict of interest and undue influence. Article 12(4) of the CRDP requires that States Parties include safeguards that ensure, among other things, that "measures relating to the exercise of legal capacity ... are free of conflict of interest and undue influence ...." However, the October draft's treatment of independent review of a diagnosis still appears to fall short of international standards, as discussed under "Remaining Areas of Concern" below.
   

Potential Improvements:
Authorities appear to have made certain improvements in the October draft by deleting or revising language from the June draft that had caused concern among observers for its inconsistency with China's international commitments. These changes could strengthen legal protections against official misuse of involuntary commitment to detain individuals who voice dissent. (For more information on this practice, see the CECC 2011 Annual Report, p. 137.) Examples of the potential improvements in the October draft include:
 

• Omission of "endangering public safety" and "disrupting social order" as basis for involuntary commitment. Article 27 of the June draft provided for a person to be involuntarily committed if the individual was "in danger of harming himself, endangering public safety or the personal safety of others, or disturbing public order," among other criteria. The October draft (Article 25) does not retain the phrases "endangering public safety" or "disturbing public order" as permissible criteria for involuntary commitment. Both domestic and international experts had criticized the inclusion of the phrases "endangering public safety" and "disrupting social order" in the June draft due to their vague nature and their potential for misinterpretation as support for the official misuse of psychiatric detention to quell dissent. (Aizhixing, via Blogspot, 24 June 11; China Law & Policy interview with mental disability law expert and New York Law School Professor Michael Perlin, 24 October 11).
• "Patient assessment" now factored into procedures for involuntary commitment. While the June draft (Article 28) mentioned that only "diagnosis" (zhenduan) was necessary for determining that an individual should be confined against his or her will, the corresponding provision in the October draft added an additional requirement. The revised language (Article 25) states that an individual diagnosed with a mental disability must also undergo an assessment of his condition in order to be involuntarily committed. Professor Perlin had discussed the need for such language in his October 24 China Law & Policy interview, presumably prior to reviewing the October draft.
• Process of appeal for involuntary commitment expanded and more clearly outlined than in June draft. In Articles 29-32, the June draft provided procedures by which an individual or his family may seek recourse if they disagree with a decision of involuntary commitment. The October draft (Articles 26, 27, and 32) provides even greater detail on these procedures, with added language specifying such items as:
  1. Persons who request an independent review to contest a diagnosis must do so within three days from the initial diagnosis (October draft, Article 26).
  2. An independent review must be conducted by two doctors who are different from those who provided the initial diagnosis (October draft, Article 26).
  3. Both drafts provide for an evaluation by a "mental disability judicial evaluation" entity, by request, to contest an independent review. The October draft allows for a second judicial evaluation, by request, after the initial one, and mandates that in cases in which the conclusions of the two judicial evaluations differ, the second shall be considered correct (October draft, Articles 26 and 27). Under provisions in the June draft (Articles 30-32), a single judicial evaluation of the doctors' independent review was the final step one could take in contesting involuntary commitment.
  4. Doctors tasked with providing an independent review or persons providing a judicial evaluation must visit the individual in person to interview him (October draft, Articles 27, 32).

Remaining Areas of Concern:
Domestic and international observers have raised concerns about the June draft that, according to Commission analysis, appear to remain unaddressed in the October draft. These include:

• No provision for mandatory independent review. While, as discussed above, in cases of involuntary commitment, persons may request an independent review (fuzhen) of an initial diagnosis (October draft, Article 27), this provision places the burden on the individual or representing party to make the request, as opposed to making such a review automatic. Article 12(4) of the CRDP requires that "measures relating to the exercise of legal capacity ... are subject to regular review by a competent, independent and impartial authority or judicial body."
• No provision for the appointment of legal counsel. Neither draft provides for the appointment of legal counsel during any part of the review process outlined above. The June draft did mention that the judicial entity in charge of providing an evaluation after an independent review should call in a legal expert to participate (Article 30), but this language appears to have been omitted from the October draft. In an open letter to the NPCSC, a group of five Chinese citizens who claim to have experienced wrongful institutionalization noted the lack of provision for legal representation during the appeal process (China Daily, 16 November 11), as did public health advocacy group Aizhixing in their June 24 report. Article 12(3) of the CRDP requires that "States Parties shall take appropriate measures to provide access to persons with disabilities to the support they may require in exercising their legal capacity."
• Indefinite involuntary commitment. Neither the June nor the October draft appears to place limits on the length of time a person may be involuntarily institutionalized. Aizhixing raised this concern in their June 24 report, calling for a "set time limit for forced hospitalization and treatment." Professor Perlin also raised this issue in his October 24 China Law & Policy interview, and indicated concern about whether "indefinite commitment without clear judicial review passes muster under the international human rights law." Article 12(4) of the CRDP requires States Parties to provide safeguards to prevent official abuse, and in doing so, to "ensure that all measures relating to the exercise of legal capacity ... are proportional and tailored to the person's circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body."
• No provision for an individual's right to refuse medication. Neither the June nor the October draft appear to have included language regarding an individual's right to refuse medication. Professor Michael Perlin raised concern about this omission, calling it a "huge issue" (China Law & Policy, 24 October 11).

Prospects for Finalization
According to one domestic observer, Huang Xuetao, director of Equity & Justice Initiative—a Shenzhen-based non-governmental organization which coordinates projects on mental health, the law is expected to be finalized in 2012 (USA Today, 29 December 11). However, the Commission has not observed official statements providing information on an expected finalization timeframe.

Previous CECC analysis on local-level mental health regulations drafted in Beijing ahead of the Olympics can be found online via the CECC's Virtual Academy. For additional information on the progress of the draft Mental Health Law, see Section II—Public Health in the CECC 2011 Annual Report.