Mental Health Law in China

A Socio-legal Analysis

Bo Chen

• Publisher: Routledge
• Year: 2022
• Print ISBN:
  9781032079066
• eBook ISBN:
  9781000573053
• Topic: Law
• Subtopic: Civil Rights in Law
• Index: Law

This book provides an important critique of mental health law and practice in China, with a focus on involuntary detention and treatment. The work explores China's mental health law reform regarding treatment decision-making in the new era of the UN Convention on the Rights of Persons with Disabilities (CRPD). It adopts a socio-legal approach, not only by undertaking a comprehensive desk-based analysis of the reforms introduced by China's Mental Health Law (MHL) but also examining its implementation based on evidence from practice. The book seeks to investigate whether China's first national MHL takes a step closer to the requirements of the UN Convention on the Rights of Persons with Disabilities on mental health treatment decision-making, and, if not, why not? The book will be of interest to those working in the areas of mental health law and policy, medical law and disability, human rights law, and Asian Studies.

1 Introduction

DOI: 10.4324/9781003212034-1

1.1 Chapter Introduction

This book explores China’s mental health law reform regarding treatment decision-making in the new era of the UN Convention on the Rights of Persons with Disabilities (CRPD or the Convention).¹It adopts a socio-legal approach, not only by undertaking a comprehensive desk-based analysis of the reform introduced by the Mental Health Law (MHL)²but also examining its implementation based on evidence from practice.

The international context of this research is that, since the CRPD entered into force, the future of mental health laws internationally is at a crossroads. China ratified the CRPD in 2008 and submitted its first state report to the Committee on the Rights of Persons with Disabilities (CRPD Committee) in 2010 on the implementation of the Convention. In its Concluding Observations in 2012, the CRPD Committee expressed its concern about the ‘involuntary commitment system’ in China for not respecting the ‘individual will of persons with disabilities’.³The CRPD Committee also stated:

The Committee advises the State party to adopt measures to ensure that all health care and services provided to persons with disabilities, including all mental health care and services, is based on the free and informed consent of the individual concerned, and that laws permitting involuntary treatment and confinement, including upon the authorization of third party decision-makers such as family members or guardians, are repealed.^{4 ⁠}

1 UN Convention on the Rights of Persons with Disabilities (adopted 13 December 2006, entered into force 3 May 2008) 2515 UNTS 3 (CRPD).

2 Mental Health Law of the People’s Republic of China (passed by the Standing Committee of the National People’s Congress on 26 October 2012, entered into force on 1 May 2013) (MHL).

3 CRPD Committee, ‘Concluding observations on the initial report of China’ (15 October 2012) CRPD/C/CHN/CO/1.

4 Ibid., para 38. Emphasis added.

Subsequently, this recommendation has not appeared to raise much attention or concern in the related law-making processes in China. When the Concluding Observation was adopted, China was close to the end of its 28-year-long law-making journey to introduce its first national MHL. The lack of legislative debate or reaction to the CRPD Committee’s recommendation in the MHL’s legislative history may be explained by the narrow window between the Concluding Observations’ adoption on 15 October 2012 and the final review of the MHL under the Standing Committee of the National People’s Congress on 26 October 2012.

However, there has been an international trend where States Parties to the CRPD have enacted legislation in which involuntary mental health interventions are still permissible, for example India.⁵Other States Parties, such as Ireland, Australia, and Canada, entered declarations or reservations in relation to provisions in the CRPD requiring abolishing involuntary interventions upon their ratification of the Convention.⁶As will be addressed in this book, a straightforward and popular explanation to the fact that most, if not all, States Parties are not following the CRPD Committee’s recommendation on the abolition of involuntary mental health interventions is its radical and unrealistic nature.⁷

Given this context, this book seeks to explore in depth the tension between the CRPD requirements and the MHL. The research is timely. After many years of implementation of the MHL, there are rich materials in both medical and legal practice, enabling a comprehensive understanding of both the law in the book and the law in action. Moreover, as China submitted its state report, combined for the second and third reporting cycles, on 31 August 2018 to the CRPD Committee,⁸the research seeks to help the mutual understanding between the newest international human rights standards and the MHL. As will be addressed in Chapter 3, China is home for over 170 million adults having at least one type of mental disorder and 16 million people having severe mental illness.⁹A comprehensive examination of the MHL and its practice will assist an honest and beneficial dialogue between the international human rights community and the Chinese government. In return, a better understanding of the CRPD requirements may help avoid wasting time and investment into the approach that has been proved a failure in other countries. As will be addressed in Chapter 3, China does not have a long history of institutionalisation,¹⁰but there has emerged a worrying trend of prioritising institutional care over community-based care.¹¹This research attempts to contribute to the discussion around the worrying trend by providing a baseline study of the current MHL and its implementation.

5 Mental Health Care Act 2017 (India). For more discussion, see Mukul Inamdar, Michael Stein and Joske Bunders, ‘Does “Supported Decision-Making” in India’s Mental Health Care Bill, 2013, Measure up to the CRPD’s Standards?’ (2016) 1 Indian Journal of Medical Ethics 229; Richard M Duffy and Brendan D Kelly, ‘India’s Mental Healthcare Act, 2017: Content, Context, Controversy’ (2019) 62 International Journal of Law and Psychiatry 169.

6 See ‘Declarations and Reservations’ to the CRPD < https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-15&chapter=4&lang=_en&clang=_en > accessed 1 July 2021. It is also interesting to note that the United States of American whose civil mental health law has significant impact on the laws of many other countries, has not yet ratified the CRPD. See Michael Perlin, Advanced Introduction to Mental Health Law (Edward Elgar Publishing 2021).

7 See, generally, John Dawson, ‘A Realistic Approach to Assessing Mental Health Laws Compliance with the UNCRPD’ (2015) International Journal of Law and Psychiatry 70.

8 China, ‘Implementation of the Convention on the Rights of Persons with Disabilities: 2nd and 3rd Reports Submitted by States Parties under Article 35 of the Convention’ (2018) CRPD/C/CHN/2–3.

9 Chapter 3, Section 3.2.

10 Chapter 3, Section 3.2.

11 Chapter 7, Section 7.3.1. Also, see Jiajia Liu, ‘Dependent and Non-Community Living: Rethinking the Institutionalization Trend of Chinese Policies Regarding Persons with Mental Disabilities’, in Wanhong Zhang (eds) Disability Rights Study in China 2015 (Social Science Academic Press 2015).

The book also aims to present the above analysis of China’s law reform process as a case study to engage international debate around mental health laws and the CRPD. The international debate on whether involuntary detention and treatment authorised by mental health laws can comply with international human rights law is seemingly intractable. As a result, several approaches have been suggested to resolve the different perspectives, including the exploration of alternative measures to coercion in psychiatry,¹²the fusion model of mental health and capacity law,¹³and the disability-neutral approach in state intervention to save lives.¹⁴One of the proposals is to develop good quality, voluntary mental health services before involuntary detention and treatment can be abolished. Arguably the hope is, if the voluntary services are sufficiently resourced, there would be no need to initiate the involuntary track even if it is still in place.¹⁵

The examination of China’s mental health law reform in this book seeks to provide a detailed and insightful case study to evaluate the above approach. The MHL not only introduced the ‘voluntary principle’ and narrowing the scope of involuntary detention and treatment but also called for increased attention and resources for the voluntary services. However, the analysis in the book suggests the law reforms in China have not achieved its aims due to the barriers identified in the later chapters. This informs the international debate that the ‘improving voluntary services before abolishing involuntary detention and treatment’ approach is unlikely to work unless the surrounding conditions, such as power imbalance and guardianship (formal or informal) are changed.

12 Piers Gooding, Bernadette McSherry and Cath Roper, ‘Preventing and Reducing ‘“Coercion” in Mental Health Services: An International Scoping Review of English-Language Studies’ (2020) 142 Acta Psychiatrica Scandinavica 27.

13 John Dawson and George Szmukler, ‘Fusion of Mental Health and Incapacity Legislation’ (2006) 188 The British Journal of Psychiatry 504.

14 Eilionóir Flynn and Anna Arstein-Kerslake, ‘State Intervention in the Lives of People with Disabilities: The Case for a Disability-Neutral Framework’ (2017) 13 International Journal of Law in Context 39.

15 Bernadette McSherry and Penny Weller (eds), Rethinking Rights-Based Mental Health Laws (Hart Publishing 2010).

1.2 Structure of the Book

The book is guided by the question: Does China’s first national MHL take a step closer to the CRPD requirements on mental health treatment decision-making? If not, why not?

After this introduction, Chapter 2 sets out to explore the CRPD requirements on treatment decision-making in mental health services. It will begin by reviewing how international human rights law has addressed the rights of persons with mental health issues before the adoption of the CRPD. The chapter acknowledges the current reality that a) the CRPD Committee calls for an absolute ban on involuntary detention and treatment in its No. 1 General Comment on Article 12 Equal Recognition before the Law; and b) no State Party has met this standard. Since CRPD-compliant mental health law have yet to be developed, the question becomes: What evaluative framework could be adopted to determine whether China’s mental health law reform takes a step closer to the CRPD requirements?

Chapter 2 will emphasise the ‘necessary but safeguarded’ approach to involuntary mental health interventions adopted by the Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care, known as the MI Principles,¹⁶and the case law of the European Court of Human Rights. Then it will examine in depth the provisions of the CRPD and relevant interpretation and scholarly debate on the CRPD requirement of abolishing involuntary mental health interventions. Chapter 2 looks beyond a doctrinal conclusion about whether involuntary mental health intervention, as a last resort, is CRPD-compliant but draws the consensus out of the heated debate. By doing so, Chapter 2 will develop a standard or a tool to assess whether or not the MHL makes a step closer to the CRPD requirement that is maximising the decision-making autonomy of persons with mental health issues in treatment. It is not intended to challenge the interpretation of the CRPD Committee or a part of the d...

Table of contents

• Cover
• Half Title
• Series Page
• Title Page
• Copyright Page
• Table of Contents
• List of tables
• 1. Introduction
• 2. Evaluative Framework and International Human Rights Law
• 3. Background: Mental Health Services and the Legal System in China
• 4. China’s Mental Health Law Reform: A Doctrinal Review
• 5. Law in Action: Medical Practice and Judicial Response
• 6. Shared Power and Silenced Service Users
• 7. Conclusion and Recommendations
• Bibliography
• Index