Slow progress on a legal black hole

Legal experts have been busy scrutinising draft amendments to the Criminal Procedure Law, but the recently released draft mental health legislation also deserves attention in the context of protecting human rights.

First deliberated in 1985, a draft was finally approved in principle by Premier Wen Jiabao and the State Council in the middle of last month. That clears the way for the law to be tabled before the National People's Congress after 26 years, more than 20 drafts and many calls to fill the gaping legal black hole of protecting mental health patients' rights.

While the exact wording is not available, a draft released for brief public consultation in June has formed the basis for discussion. Many legal experts are hoping for more changes and procedural details, especially regarding the involuntary committal of mental patients.

'Being made a mental patient' has become a worrying phenomenon on the mainland in recent years, with one incident after another of mentally sound citizens being locked up in asylums hitting the headlines. Some were committed by family members involved in financial or other disputes with the 'patient', while others were petitioners or 'troublemakers' in the eyes of local authorities who were taken to asylums by police officers, often without the knowledge of their family.

This means that under current law a person can be deprived of their freedom for an indefinite period in a mental institution through a simple police order or by an ill-intentioned family member. All it takes to involuntarily commit a mental patient is the medical assessment of one facility, which answers to whoever pays its bills. Once a person is declared a mental patient, they lose all rights to protest and won't be let out until police or their 'guardian', normally the family member who checked them into hospital, agrees to it.

Meanwhile, at the other end of the spectrum of problems in the mainland's mental health system, there are patients who really need medical care but are not getting it due to poverty, insufficient medical facilities and the traditional lack of attention to mental health, even extending to a taboo on talking about it. Mentally ill people who break the law also find the defence of insanity very difficult to invoke as only a judge or prosecutor can initiate a mental capability assessment, not the defendant.

The draft Mental Health Law is clear in its intention to tackle the problem of 'being made a mental patient' and has been applauded for doing so by legal experts. The draft makes it a crime for anyone to put a mentally sound person into a mental facility, or illegally prevent a patient from leaving such a facility.

The draft law also says a patient who objects to being committed has the right to seek a second opinion from a different facility, or even a judicial assessment. And it also stipulates that a patient's condition, not the agreement of his or her family or the authorities, is the only consideration when deciding whether the patient should be discharged.

But legal experts say it doesn't go far enough. For example, the draft says a mental patient can be involuntarily committed if he or she is considered to be at 'risk of disrupting public order', which is a very broad term that is subject to interpretation by the authorities. For example, petitioner Peng Baoquan, from Hubei, was sent by police to a mental hospital for three days in April last year after taking photos of some other people petitioning and was only released after the case was exposed by the media. Many experts want this clause to be deleted.

Veteran defence lawyer Huang Xuetao said that in the case of those not considered a risk to others or themselves, but whose family still believe it's better they be committed, strict rules on involuntary committal should also apply. She receives calls seeking help on a weekly basis from patients accused of having mental illnesses by their families. Huang and other experts also want greater judicial involvement in the approval of involuntary committal.

On one hand, according to the mainland's civil law, only a court can make the declaration that a person lacks the mental capacity to decide for themselves and needs a guardian; a hospital cannot just accept any relative as guardian. On the other, while involuntary committal is not as severe as declaring that a person lacks the mental capacity to decide for themselves, Huang still thinks judicial involvement is necessary and suggests a simple procedure where hospitals would file every involuntary committal decision with the court and where patients would be allowed to request to meet a judge if they objected. This is a system similar to that in Hong Kong, where involuntary committal of mental patients (only statutorily allowed for an initial seven days) must be counter-signed by a judge. This new procedure would also then make it important for mental patients to be included as a category of citizens eligible to apply for legal aid on the mainland.

As for the initiation of the insanity plea, neither the draft Mental Health Law nor the draft amendments to the Criminal Procedure Law touch on the issue. The main argument against allowing every defendant to initiate the plea is that it would lead to abuse, especially when the judicial expert assessment system is still in an infant stage. However, some heavyweight legal experts have proposed that defendants in cases subject to the death penalty, at least, should have the right to initiate such a plea.

Of course, building a proper mental health system is more than a legal challenge and will also involve a change in cultural mindset and a significant reallocation of medical and social resources. The greater involvement of courts would also require the introduction of new procedures that would add further pressure to an already overloaded judiciary.

But at the end of the day, the authorities must ask themselves what the ultimate goal of such laws is. Is it to maintain stability or to uphold a new commitment to protect citizens' rights? If it's the latter, it's time for the authorities to make bolder changes.