Our overall findings are that the legal regulations on detaining mentally ill persons are similar in the five cities of China and in general these laws do adhere to international standards. These regulations emphasize voluntary hospitalization and treatment as the first-line treatment; they require informed consent from the patient or the family member or guardian; and they restrict the use of involuntary treatment. Thus, these regulations basically cover the principals in the WHO Guidelines for the Promotion of Human Rights of Persons with Mental Disorders (WHO, 1996
), the UN Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care (UN, 1991
), and the UN Convention on the Rights of Persons with Disabilities (UN, 2006
). But since patterns of hospitalization are affected by a society’s social policies and by cultural and attitudinal characteristics of a particular society, not only by the clinical status of the patients (Bauer, Rosca, & Grinshpoon, et al., 2007
), these social and cultural characteristics can also be seen as manifest in the mental health legislation in China.
In the past, voluntary hospitalization and treatment of persons with mental illness was not the norm. According to a national survey covering 17 cities of China in 2002 (Pan, Xie, & Zheng, 2003
), the proportion of voluntary hospitalization in mental health hospitals was only 18.5%. The low rate of voluntary hospitalization stemmed not only from a lack of legislative support but also from a longstanding hesitancy, borne of stigma, for family members and guardians to grant psychiatric patients the right of informed consent. According to a recent survey by Li, Liu and Ma (2006)
, 60.8% of schizophrenia patients were sent to hospital by their guardians without those patients being informed beforehand. This also reflects a broad pattern of giving far more priority to the role of the family in making decisions about the mentally ill in China, in contrast to societies that give more priority to the autonomy of the individual patient.
By emphasizing voluntary hospitalization and treatment as the preferred choice and by restricting the criteria for involuntary care, these cities’ new regulations have had a positive impact on the standardization of psychiatric admissions procedures and on increasing the level of respect for the autonomy of patients. Traditionally, hospitals had the right to take patients from their homes and forcibly admit them merely at the request of the patients’ relatives. Though this kind of practice can indeed help some patients get much-needed treatment promptly, it has the potential for doing harm. Sometimes people who did not meet the criteria for involuntary admission were taken into hospital unjustly. But as a result of these five cities instituting reforms, admissions procedures in those jurisdictions have become more standardized, informed consent has become legally-mandated, and as a result many of the “traditional” habits governing hospitalization have been prohibited.
Although there are some minor differences in the criteria for “medical protection hospitalization” in the five cities, each of the guidelines for this mode of admission agrees on the need to determine that 1) the person’s judgment has been impaired because of mental illness, and that 2) the person needs medical treatment. These are in line with internationally-endorsed principles for involuntary admission and treatment (UN, 1991
These criteria are less stringent than the “danger to self or others” criterion required for an “emergency hospitalization” admission. When this risk of posing danger to self or others is not present, involuntary treatment in the best interest of patients’ health is controversial in Europe. It is possible under English legislation, but in Germany it would depend on the patients’ inability to give informed consent, and in Austria it would not be possible (Zinkler, & Priebe, 2002
). Under the regulations of each of the five cities under consideration here, this type of admission, i.e., involuntary treatment in the best interest of the patient’s health but without the requirement of posing a danger to self or others, is allowed. The Chinese criteria for “medical protection hospitalization” make it possible for patients who are unable to give informed consent, but who require treatment and admission for their (mental) health, to receive necessary care even if they are not a safety risk to themselves or others. At the same time, the stricter procedures required for “emergency hospitalization” can protect patients from being forced into the hospital without clear indications.
One issue deserving clarification is that concerning the range of parties allowed to take part in the “emergency hospitalization” admissions procedure. The Shanghai regulations allow the “guardians, next of kin, affiliated units, Neighborhood Committees or Villager’s Committees where they reside” to take part in “emergency hospitalization.” This is because in this city, all of these have been actively involved in the “Three-tiered Community Based Prevention Program.” For many years, the patient’s workplace, Neighborhood Committees, and Villager’s Committees played an important role in a patient’s community rehabilitation project. In cases in which a person has no close relatives or guardian, these organizations served as a guardian (Zhang, Yan, & Phillips, 1994
). This kind of system served a useful purpose in the past. It helped those mentally ill patients without caregivers get help. However, with the economic and social changes in China today, this kind of system is not as effective as before.
We have indicated that involuntary hospitalization includes involuntary treatment. This does not imply, however, that the patient and family members play no role in the treatment plan. According to these cities’ regulations, persons with mental disorders and/or their guardians have the right to know the state of the illness, the diagnosis, the treatment plans, and the possible consequences of treatment. Furthermore, some special procedures and therapies, such as ECT, require additional informed consent.
Involuntary outpatient treatment as a follow-up to an involuntary inpatient episode is considered by some to enhance the continuity of treatment as well as public safety. However, there is still not enough scientific evidence for the efficacy of coercive outpatient treatment to recommend this policy (Steadman, Grounis, & Dennis, 2001
; Swartz, Swanson, & Hiday, 2001
). Even in the European Union, only five Member States include an option for this modality in their laws (Dressing, & Salize, 2004
). In China, because of the underdevelopment of community-based mental health services, involuntary community treatment would require some time to be implemented. The regulations in these five cities all include articles promoting community-based rehabilitation and occupational therapies and training. Although Chinese mental health policy is increasingly emphasizing community-based care over institutionalized care, the actual development of community services in nearly all of China is still in the initial stage of development.
Chinese mental health policy, as elsewhere in East Asia, gives strong primacy to the family of a patient. Accordingly, Chinese mental health regulations allow family members, rather than third parties, to take on the responsibility of protecting patients’ rights and offering consent for admission and treatment when necessary. Traditionally, the Chinese family has been at the base of all social support networks; this remains largely true today. The main responsibility for seeking health services, providing support and care to a person who is diabled, and paying for health care for those who are mentally or physically ill rests with the family (Hu, Higgins, & Higgins, 2006
). Thus, it is often not the individual who is consulted about his admission, but his or her family (Pearson, 1992
). The family often takes primacy over an individual patient’s autonomy in medical ethics and in mental health policy and procedures. Thus, the consent of patients themselves has only become a serious issue recently.
In China, a person’s “guardian” is determined by procedures indicated in the “General Provisions of Civil Law of the People’s Republic of China.” The provisions stipulate that the guardian is usually the spouse, parent, son/heir, or sibling. Generally the determination as to which of those individuals becomes the guardian is based on an informal negotiations among family members. If the family members cannot come to an agreement, then a representative from the Neighborhood Committee or Villager’s Committee will mediate. In case a determination still cannot be made, the court may become involved. Since there may be a conflict of interest between family members and the patient, all the five cities instituted regulations stating that family members or guardians “causing damage to persons with mental disorders shall bear civil liability according to law” as a safeguard.
These regulations also do not direct other non-medical authorities to play a role in involuntary admission and treatment. While some have argued that limiting physicians’ discretion is a means to reduce the frequency of involuntary admissions (Hoyer, 2000
), others have found that compulsory admission rates or quotas are not significantly lower in countries with non-medical authorities deciding on compulsory admission (Dressing, & Salize, 2004
Our review of the mental health legislation in the five cities of China indicates that the lack of detailed procedures regarding the implementation of admission and treatment remains an important shortcoming. Although the policies stipulate that patients should be given the reasons for their confinement, explicit guidelines on precisely how the cause for confinement is to be communicated, how to get informed consent, how to appeal an admissions or treatment decision, as well as mechanisms for getting legal representation involved in the process of admission or appeal, are not included in the legislation. As a result, the articles of these legislations articles read more like general statements of goals or principles than procedures to be operationalized or mandates which can be enforced. The lack of specificity in these articles will allow the aim of protecting patients’ rights to remain more at the level of theory than practice. Thus, we suggest that more detailed operational guidelines for mental health care in these cities should be developed.
Another shortcoming our research has identified is the lack of oversight and review mechanisms regarding the appeal of involuntary admissions and treatment. Although a patient can appeal to the public health authorities or the courts according to the Regulation on the Handling of Medical Malpractice (State Council, 2002), there are still no mechanisms – aside from malpractice claims – for ensuring that hospitals abide by the new regulations. Thus, the draft of National Mental Health Law mandates setting up an independent ethical committee to review ethical and procedural issues related to involuntary admission or treatment and other violations of patients’ human rights. It mandates that such a committee should be composed of at least one legal practitioner, a health care practitioner, and representatives of the patient’s family.
Many of the shortcomings of the mental health regulations in the five cities we have reviewed reflect a longstanding bias which prioritizes the patient’s right to receive treatment over the patient’s rights and autonomy. This has been a source of criticism of Chinese mental health policy. Current drafts of the National Mental Health Law recognize this and place new emphasis on patient rights.
Although so many defects exist in these legislations, what we want to argue is that there has been progress at the level of legislation; and by highlighting this progress, we hope to encourage wider, national level, legislative reforms as well as increased efforts to actually bring the new legislation from formality to reality. We are not naive enough to believe that legislation alone is the answer. Many good laws go unenforced. But in the case of China at least, we consider that the formalization of reform in municipal legislation marks a very positive step in the wider effort to improve mental health care, and it is for this reason that we feel it important to call attention to the praiseworthy components of the new municipal laws, as well as call attention to those areas that, in our opinion, warrant further review.