THE NEW CHINESE MENTAL HEALTH LAWS.

• Published date: 22 March 2018
• Author: Guo, Zhiyuan,Feeney, Floyd
• Date: 22 March 2018

Introduction 413
                I. A Brief History of the Chinese Approach to Mental Disabilities 414
                II. Three Major Chinese Reforms 416
                 A. United Nations Convention on the Rights of Persons with
                 Disabilities 416
                 B. The Chinese Criminal Procedure Code of 2012 417
                 C. The Chinese Mental Health Law of 2012 418
                III. International Legal Norms Concerning Mental Disabilities 420
                IV. How the 2012 Laws Affect Chinese Criminal Law and Procedure 423
                 A. How Insanity Affects Chinese Criminal Trials 424
                 B. The Right to Counsel 426
                 C. Right to Question and Confront Expert Witnesses 428
                 D. Court Supervision of Treatment 428
                 E. Who Should Initiate Mental Examinations in Criminal Cases? 431
                V. Civil Commitment Reform 432
                 A. Principle of Voluntariness for Diagnosis 434
                 B. Principle of Voluntariness for Hospitalization 434
                VI. Proposals for Future Mental Health Law Reforms 436
                 A. Right to Effective Counsel in Criminal Cases 436
                 B. Access to Psychiatric Assistance at State Expense in Criminal
                 Cases 437
                 C. Least Restrictive Alternative Treatment in Criminal Cases 438
                 D. Community-based Treatment in Both Civil and Criminal
                 Cases 439
                 E. Judicial Review of Involuntary Civil Commitments 440
                 F. Free Counsel in Civil Commitment Cases 442
                 G. Greater Control Over Guardians 443
                 H. Need to Consider Special Problems 444
                VII. Conclusion: Coordinating Criminal and Civil Commitments and
                 the World Beyond 444
                

INTRODUCTION

Like every other modern society China recognizes mental illness as an important issue. Seeking to further improve its approach, China has in the last decade adopted three major new mental health laws. In 2008 it ratified the United Nations Convention on the Rights of Persons with Disabilities. In 2012 China made major changes in the mental health portions of its Criminal Procedure Code and adopted its first modern civil mental health law.

Mental illness is not a new problem. Modern societies tend to approach this issue much differently, however, than older, more traditional societies. Because ancient societies kept few statistics, it is impossible to know how the amount of mental illness then compares with the amount of mental illness today. It seems clear, however, that mental illness today is an important problem. Chinese government statistics indicate that over 100 million Chinese citizens suffer from some form of mental illness and that more than 16 million have a serious mental illness. (3) Chinese prosecutors charge the mentally ill with at least 10,000 crimes each year. (4)

Because China is the world's most populous country and one of the world's most important nations, its new mental health laws have great intrinsic importance. China's enormous status in the world is not the only reason, however, for paying close attention to these new laws. China's new mental health laws are the newest kids on the block. No other major nation has in the last few years made such a thorough overhaul of its mental health laws. Outsiders may agree or disagree with the choices that China has made. A careful study of these choices is likely, however, to be of value to all.

This article proceeds in seven parts. Part I provides a brief overview of the legal approaches used by China in the past to deal with mentally disturbed persons. Part II supplies more detail about the three major developments already mentioned. Part III analyzes the impact of international legal norms on Chinese mental disabilities law, while Parts IV and V concern the practical effects of these new laws. Part VI suggests some possibilities for future reform. The conclusion (Part VII) calls for greater coordination between the rules governing civil commitments and those governing criminal commitments.

I. A BRIEF HISTORY OF THE CHINESE APPROACH TO MENTAL DISABILITIES

As early as the Warring States Period (475-221 BCE), Han Fei Zi, a noted ancient Chinese philosopher, addressed the issue of how mentally ill persons who commit crimes should be punished. Mental illness, Han Fei Zi argued, should not be a reason for eliminating punishment. (5) Confucian thinking stigmatized people with mental illness and required families to carry the burden of caring for such persons. Ideas such as these were a consistent thread in China's policy relating to persons with mental illness for a very long period of time.

In the 1700s the Qing dynasty began to adopt more interventionist measures. Amendments to the Great Qing Code required families to notify the authorities when family members were suffering from mental illnesses. In addition to mandatory registration, these amendments required families to keep the mentally ill in strict confinement. (6) By isolating persons with mental illness, the Code sought to protect society from violent behavior. If the mentally ill actually committed violent acts, the Great Qing Code--like the earlier codes-called for punishment of the violent acts. (7)

Over the next several centuries medical practice and the law continued to evolve. By the 1920s and 1930s some major Chinese cities, in order to improve social control, began to establish hospitals for the "psychopathic." (8) In addition to restricting the liberty of mentally ill persons who had committed violent acts, these hospitals provided medical care and treatment. (9)

After the founding of the People's Republic of China in 1949, psychiatric hospitals were gradually established in each province. The goal was to improve security and stability. During the Maoist era Chinese psychiatry was heavily influenced by Soviet psychiatric theory. Noting that the Soviet Union during this time sometimes used psychiatry to combat counterrevolutionaries and political and religious dissenters, some writers suggest that Chinese mental health practices at this time may have had similar goals. (10)

During the Cultural Revolution (1966-1976) many argued that mental illness resulted from the corruption of the old political system. Those with this view believed that it was society that needed to be cured rather than the persons who appeared to be mentally ill. Thought reform, they contended, was the appropriate treatment for mental aberrations. (11) Beginning in 1978 psychiatric services began to be re-established. In 1979 China adopted its first modern Criminal Code and its first modern Criminal Procedure Code. (12) The Criminal Code contained a section dealing with mentally ill persons accused of crime. (13) Gradually these codes and other new measures (14) led to new legal and administrative regimes for handling the mentally ill. (15) The first wave of these new legal regimes was not comprehensive. The primary goal at this time was that of maintaining social order. Rights protection for the vulnerable mental health population was not a major priority.

II. THREE MAJOR CHINESE REFORMS

In August 2008 China ratified the United Nations Convention on the Rights of Persons with Disabilities. (16) In March 2012 China completed a major revision of its Criminal Procedure Code. An important part of this revision concerned persons with mental disabilities. In October 2012 China adopted its first comprehensive modern civil mental health law.

A. United Nations Convention on the Rights of Persons with Disabilities

This Convention was the first legally enforceable United Nations instrument specifically addressing the rights of persons with disabilities. This Convention applies to the mentally ill as well as to the physically disabled. The Convention requires nations to respect the "inherent dignity" of its mentally disabled citizens, to follow the principle of "nondiscrimination," (17) and to establish "freedom from torture or cruel, inhuman or degrading treatment or punishment." (18) To assist in implementing these important values the Convention requires states to provide "freedom from exploitation, violence and abuse," (19) guarantee "integrity of the person," (20) and assure "equal recognition before the law" (21) and equal "access to justice." (22) China's ratification demonstrates a national commitment to the rights of persons with disabilities--in the community, in psychiatric institutions, and in correctional facilities. The treaty, however, is not self-executing. In China, as in countries such as the United States, national or local legislation is generally necessary if treaty rights are to become a part of everyday law and practice. (23)

B. The Chinese Criminal Procedure Code of 2012 (24)

Forensic evaluations have long played a crucial role in Chinese criminal cases. In 2006 a high-profile case involving Qiu Xinghua generated an intense debate over who should be responsible for initiating mental examinations in criminal cases. (25) Arousing great interest both in China and abroad, Yang Jia's killing of a police officer in 2008 (26) intensified this debate. The following year Akmal Sheik, a British citizen believed by many to be mentally ill, was sentenced to death and executed for drug offenses committed in China. (27) This case generated huge interest both inside and outside of China about the risk of punishment for crimes committed while mentally ill.

The 2012 revision of the Chinese Criminal Procedure Code responded to these high profile cases by increasing the protections available to defendants with mental disabilities. (28) The new law gives mentally disabled persons charged with crimes a right to the assistance of counsel. (29) The new law also gives defendants with mental disabilities a right to the assistance of mental health experts when necessary to confront the prosecution's expert witness. (30) If an order for compulsory treatment or mandatory hospitalization is being considered, the new law gives mentally disabled persons a right to a special kind of judicial review. (31)

C. The Chinese Mental Health Law of 2012

It is important for society to know how many crimes the mentally ill commit. It is also important to recognize that family members and others sometimes make false accusations of mental illness in...