 1. Background
Since the early 1980s, problems relevant to mental health have been addressed, albeit sporadically and insufficiently, in various articles and sections of Chinas legal statutes. Such laws include the Criminal Law (1980), the Criminal Procedure Law (1980), the Civil Law (1987), the Civil Procedure Law (1982), the Law on the Protection of Disabled Persons (1990), the Law on Maternal and Infant Health Care (1994), the Marriage Law (2001), etc. However, the scope of these laws is too narrow, since they often pertain to only a small segment of the patient-population, like criminal offenders or the mentally disabled, or address only a limited number of patient-rights, like maternal or general civil rights. Integrated mental health legislation has not yet been enacted.
In 1985, a panel committee was commissioned by the Ministry of Health to draft the Mental Health Law of the Peoples Republic of China. Drawing upon the WHO report on international mental health legislation, "The Law and Mental Health: Harmonizing Objectives," and other international legislative documents including the Declaration of Helsinki, the Declaration on the Rights of Mentally Retarded Persons (UNGA resolution 2856 of Dec. 20, 1971), the Declaration on the Rights of Disabled Persons (UNGA resolution 3447 of Dec. 9, 1975), the Declaration of Hawaii, (General Assembly of WPA of 1977), and The Mental Health Act of 1983 (England and Wales), etc., the first draft was completed in November of 1985. Because this panel was composed primarily of forensic psychiatrists, the draft focused mainly on the protection of patients judicial rights through forensic psychiatric evaluation.
Since 1987, the development of Chinese mental health legislation has been guided largely by the WHO, with whom Chinese officials have worked collaboratively. WHO officials and experts from Britain, Japan, the United States and France assisted the Chinese Ministry of Health by holding training programs and workshops in 1987, 1990, 1995, 1999, and 2002 respectively. Their suggestions have also been included in subsequent drafts of this law. In addition, in conjunction with a well-established team of Chinese psychiatrists, they play a critical role in the approval of these drafts as stipulated by the WHO 1999 regional office mission report: "The Mental Health Law of China should be based on the draft mental health law prepared by a group of psychiatrists who have been working on this issue since 1985".
In September 2004, the 15th draft was amended. Technical research for it, however, is still being conducted. Included in this draft are the following arenas of concern: (1) Socio-economic disparities in mental health services; (2) the role of the family in the provision of mental health care and in the admission of patients to psychiatric hospitals; and (3) the role of the government in mental health administration; and (4) mental health promotion. Current international guidelines such as the Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care (UNGA resolution 46/199 of Dec. 17, 1991), the Declaration of Madrid (General Assembly of WPA of Aug. 25, 1996), and the Mental Health Law: Ten Basic Principles (WHO, 1996) are also adopted both in research and in amending the drafts. All issues that are addressed, in one form or another, by the current working draft are: access to the best and most appropriate professional services, the right to rehabilitation and community based services, the right to treatment that enhances autonomy and offers the least restrictive services, the right to informed consent, and non-discrimination. Unlike previous drafts, this one emphasizes in detail the importance of social support and non-discrimination, the promotion of mental health, standardized guidelines for the supervision of mental health facilities and professionals, community-based rehabilitation and occupational training, and the integration of mental health services into primary care and other general health services. Nonetheless, despite these notable additions, crucial and controversial issues such as the guardianship of patients, criteria of admissions, the legal protection of mental health professionals, and the role of the judicial system, remain unresolved.
Although there is no national legislation governing mental health issues, legislation at the local (provincial) level has achieved some success. The "Shanghai Municipality Regulations on Mental Health," for example, was passed by the municipal legislature in 1996 and has remained in effect since April 7, 2002. It was based not only on the national draft, but on the Mental Health and Welfare Law (1995) in Japan, the Mental Health Law (1990) in Taiwan of China, and the Mental Health Act (1983) in England and Wales.
Because of these local successes, national legislation is being rapidly developed. Currently, it is listed on the Chinese governments mental health plan: National Mental Health Project of China: 2002-2010, and national mental health policy: Guiding Opinions on Further Consolidating Mental Health Work (issued by the State Council, 2004). Mental health legislation is on the key agenda for the Ministry of Health. The law is expected to be submitted to the State Council and the National Peoples Congress within the next few years.
2. Involuntary admission and treatment
Compulsory admission is always a fundamentally controversial aspect of mental health care worldwide. The challenge for those drafting this legislation is to clearly delineate the circumstances under which involuntary admission may be considered appropriate, and to devise procedures for its legal implementation. In different countries, there are different criteria for involuntary admission. WHO has recommended a general guidance that they include and/or be based on: (1) the existence of a mental health problem; (2) the dangerousness of the patient or the extent to which he or she appears in need of treatment; (3) the principle of the "least restrictive alternative," and (4) time limitations.
In China, it was not until the early 1990s that the concept of "voluntary hospitalization" was widely understood, although formal, compulsory admissions were very rare. As in other Asian countries, this cultural characteristic is reflected in Chinese mental health legislation because from the point of view of the legislature, the protection of a patients right to receive treatment is a higher priority than the protection of his or her right to autonomy. Table 1 showed the differences between various admissions according to the Shanghai local legislation and the draft national law.
Table 1. An outline of involuntary admissions:
Medical protected Enforced Emergency Observed
Mental status Severely ill Severely ill Ill or possible ill
Criteria Needs for inpatient treatment Danger to self/others/society Danger to self/others/society
Application Guardian Guardian/police Guardian/close relative/ government of neighborhood/police
Recommendation Psychiatrist 2 psychiatrists 2 psychiatrists
Determination Guardian Guardian/police Guardian/police
Discharge/release Clinical stability Stability + no dangerous 72 hours
A recent prospective investigation in 17 cities nationally found that of 2333 inpatient admissions, 431 (18.5%) met the "voluntary" criteria, 1388 (59.5%) met the "medically protected" criteria, and 514 (22%) met "enforced" or "compulsory" criteria. This means that, not counting the medically protected, the actual percentage of compulsory admissions in China is similar to that in many other countries such as the United States, where the rate was about 27% during the 1990s.
3. Informed consent
For many years, it has been the relatives of mentally ill people who have had the right of informed consent. The consent of patients themselves has not been an issue until recently, and even now, only in the context of clinical pharmaceutical trials and electro-convulsive therapies. Strangely, as the number of patients who are informed has increased, so has the number of patients filing complaints about the lack of information available to them. A 2001 survey, for example, indicated that the failure to obtain informed consent accounts for about 5.8% of all medical malpractice claims, making it the fifth most frequently reported claim. This dilemma partially indicates that, patients awareness of their legal rights is helpful for their defense for themselves and consequently, helpful for improving the quality of care being provided to them.
4. Seclusion and restraint
Because of generally insufficient in human resources and structural deficiencies in the mental health facilities in China, seclusion and restraint patients were popularly employed for preventing patients from possible aggressive behavior or for convenience the professionals. According to the UN Principles, however, "physical restraint or involuntary seclusion of a patient shall not be employed except in accordance with the officially approved procedures of the mental health facility and only when it is the only means available to prevent immediate or imminent harm to the patient or others". This principle has been addressed within both the current draft of Chinese mental health legislation and the Shanghai legislation. Restraint or seclusion can be implemented only by an order from a certified psychiatrist, to prevent possible harm to the patient or other people. The reason and course of implementation should be recorded in detail. Making use of restraint or seclusion as punishment is forbidden.
5. Patients other rights in receiving mental health services
Chinese mentally disordered inpatients will be allowed the rights of communication, visitations with friends or relatives, the management of private property, and the maintenance of privacy in the keeping of journals and other written materials. When limiting these rights becomes necessary, the patient should be informed and provided a clear reason, which should also be noted in his or her medical chart. In many areas like Shanghai, daily practice of mental health service has changed consequently.
Patients right of confidentiality will be respected through legal provisions. The use of both audio and visual materials of a patient is strictly prohibited, unless the consent of the patient or his guardian is obtained in writing. When breaching a patients confidentiality of information about illness history is necessary; psychiatrists must protect the anonymity of that patient and all data that might disclose his or her identity.
7. Conclusions
All of the above-mentioned provisions were first enacted in Shanghai on April 7, 2002. Relevant bylaws and rules have subsequently been established by academic organizations and hospitals for the day-to-day guidance of mental health services. Prior to 2002, for example, decisions on whether or not to restrain a patient were made by nurses and did not necessitate further review. Now, however, these decisions lie exclusively in the hands of psychiatrists. Patients in restraint are re-assessed by these physicians twice a day, and evaluated every half an hour by nurses. When restrained for up to 72 hours, patients are evaluated by certified psychiatrists holding the technical title of Assistant Chief Physician or higher. While there was some expectation that, following the enactment of these provisions, the number of patient complaints would increase, so far this has not proven to be the case. Both mental health consumers and providers feel that they understand their rights and obligations more clearly now than ever before.
The importance of mental health legislation has been recognized broadly in China today. With its historical tradition of stigmatization and ignorance of the human rights of mentally disordered persons, however, China should make a lot of efforts before a substantial consensus for change is built.
(Edited by Shuping,Tan) |
Ministry of Health, (2003) No.013
ICP:No.040657