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China: Mental Health Law Takes Effect on May 1

(Apr. 19, 2013) On May 1, 2013, China’s first Mental Health Law will enter into effect. The National Health and Family Planning Commission, a State Council commission created in March through the merger of the former Ministry of Health with the National Family Planning Commission, issued the key points and explanations of the Law to the public through its official website on April 17, 2013 (hereinafter the Explanations). (Jingshen Weisheng Fa Xuanchuan Yapdian ji Xiangguan Jieshi [Publicity Key Points and Relevant Explanations of the Mental Health Law] (Apr. 17, 2013), National Health and Family Planning Commission website.)

The passage and implementation of the Mental Health Law is a milestone in the development of China’s mental health system, according to the Explanations. It was pointed out that mental health is not only a major public health issue, but also a social problem which attracts wide public concern in China. The Law is expected to “ensure that people with mental disorders won’t be left untreated due to economic difficulties,” and to”ensure that citizens who are not suffering mental diseases will not be treated compulsorily.” (Id.)

The Mental Health Law was adopted by the Standing Committee of the National People’s Congress on October 26, 2012, after almost three decades of preparation. (Text of the Law [in Chinese], The Central People’s Government of the People’s Republic of China website (Oct. 26, 2012).) The Law expressly claims to prohibit institutionalization of individuals who are not suffering from a mental disorder (id. art. 78). Patients suffering serious mental disorders may be hospitalized against their will, however, if they are a danger to themselves or others. When a patient has injured himself, or there is a danger of self-injury, he may be hospitalized upon agreement of his guardian (normally a close family member). If the guardian does not agree, the patient may be taken home to be cared for and monitored by the guardian (id. arts. 30&31).

If a patient has harmed others, or there is a danger that he may do so, he may be hospitalized without the agreement of himself or his guardian. In such a situation, the patient or his guardian may ask the hospital to provide two different psychiatrists or may go to another qualified medical institution to request a second evaluation. If a patient and his family still have objections to the conclusion of the second evaluation, they may then choose a lawfully credentialed institution with expertise to conduct an expert evaluation. Hospitals are prohibited from taking a patient if the second evaluation or the expert evaluation concludes that the person is not suffering from a serious mental disorder or that hospitalization is unnecessary (id. art. 32).

The Law does not make it clear if its provisions apply to mental health institutions that are not administered by the National Health and Family Planning Commission. The Ministry of Public Security, for example, appears to be running forensic psychiatric hospitals, known as “Ankang hospitals,” which implement compulsory medical treatment for persons who have “created serious incidents and disasters.” According to the Ministry, by implementing compulsory medical treatment of mentally ill people who have created serious incidents and disasters, Ankang hospitals serve two purposes: maintaining social stability and providing medical treatment. (Quanguo Gongan Jiguan Diyici Jingshenbing Guanzhi Gongzuo Huiyi Jiyao [Minutes of the First National Conference on Administration and Control of the Mentally Ill], GongFa [88] No. 5 (Jan. 29, 1988), available from the online, subscription database Westlaw China.) As of 2010, there were 24 Ankang hospitals established in 20 provinces. The police of various localities have sent more than 40,000 persons to Ankang hospitals for compulsory treatment since 1998, according to the official statistics provided by the Ministry. (Qiangzhi Geli Jiedu Suo, Ankang Yiyuan, Jiedu Kangfu Changsuo de Xianzhuang ji Weilai [The Present and Future of Compulsory Isolated Drug Addiction Treatment Centers, Ankang Hospitals, and Drug Rehabilitation Centers], Ministry of Public Security website (Mar. 23, 2010).)