How to treat the mentally ill in accordance with the law has been a longstanding issue in China. As early as during the Warring States Period (475-221BCE), the philosopher Han Feizi 韩非子 (280-233BCE) wrote: ‘a psychotic cannot escape from punishment according to the law’. According to statist Confucian thinking, mental illness was not only a threat to fundamental notions of order and harmony but also to the core precepts relating to protecting the family line through healthy male offspring. The patri-linear culture of Confucianism demanded the careful regulation of reproduction for the safeguard of the future of the male lineage.
The centrality of the family defined by Confucian thinking not only stigmatised the mentally ill, it also created a system whereby the burden of caring for people with a mental illness remained with the family.
The legal system of the Qing dynasty, known as The Great Qing Code 大清律例 also known by its Manchu title Daicing gurun-i fafun-i bithe kooli, imposed upon families the duty to report the existence of mentally ill family members to the authorities and required that they be keep under strict confinement.
If a family failed to report to the authorities, or in cases where the mentally ill had no family, then neighbours and clan heads were required to take responsibility. The stigma of insanity attached both to the mentally ill and their families lead to cruel circumstances in which people deemed insane lived a sequestered existence completely hidden away from the community. Institutionalisation is a practice that developed with the arrival of foreign missionaries.
In her Madness in Imperial China, Vivien Ng claims that it was only in the seventeenth century that the issue of mental disorder started to be considered a matter of legal relevance in China. At the time, legislation was drafted to address two main objectives: first, the isolation of the insane from society; secondly, the punishment of violent acts committed by the mentally ill. According to Ng, this meant: ‘the transformation of madness from illness to deviance’ and the related need for jurists to consider the issue of criminal responsibility or mens rea of the insane. At this time the Qing government started adopting more interventionist measures in dealing with the mentally ill including registration and confinement.
For centuries, the legal and institutional treatment of the mentally ill was dominated by two main issues: the first related to social control, ensuring that the behaviour of the mentally ill would not have a negative negatively on the social order; the second, concerned the question of clemency in cases of homicide. The Qing Code stipulated that the death penalty for murder was not to be applied to offenders who were shown to be insane at the time of the crime, even when the victim was one of the offender’s own parents. Only two exceptions to this rule applied: first, when the victim was one of the grandparents and, secondly, in cases involving multiple homicides. After the founding of the Republic of China in 1912, new criminal legislation stipulated that punishment should be waived or reduced when a person suffering a mental illness committed a crime.
In his study on this subject Frank Dikötter notes that during the 1920 and 1930s, the discourse on mental illness became associated with the ‘eugenic’, or yousheng 優生, visions. According to these, the quality and resilience of the Chinese race was to be strengthened by eliminating those deemed imperfect and inferior. The ‘eugenic project’ embraced during the Nationalist period from the 1920s reinforced the already profound stigma attached to families with a history of mental illness by, as Dikötter puts it: ‘colluding with patrilineal culture, in particular folk models of inheritance which see disorder as running in family lines’.
It was during these decades that the first ‘psychopathic hospitals’ started to appear in China’s major cities. Their establishment was not merely aimed at restricting the liberty of murderers who were deemed insane; they also provided medical care and treatment. If family members were willing to care for a patient and accept responsibility for them, release could be obtained.
After the founding of the People’s Republic of China in 1949, psychiatric hospitals were gradually established in each province; these had the socio-political aim of improving the conditions of social security and stability. Services were completely disrupted during the Cultural Revolution era, as it was believed that mental illness was the result of the corrupt old political system. The prevailing dogma at that time was that it was society that needed to be cured rather than the people presenting with illness. Thought reform was considered the most appropriate treatment for all mental aberrations. Not surprisingly, the development of psychiatry during the Maoist era was heavily influenced by Soviet psychiatric theory, doctrine and practices. Robin Munro thus argues that, as was the case with the Soviet Union, China started to use and abuse psychiatry to deal with counterrevolutionaries, political and religious dissenters. Munro claims that during the Cultural Revolution the distinction between political crime and mental illness was abandoned and dissenters were seen as being possessed by a ‘counterrevolutionary’ form of madness.
The onset of Reform Era from 1978 coincided with the re-establishment of psychiatric services, the enactment of criminal and civil legislation which contained specific provisions regarding the treatment of the mentally ill and the issuing of a number of regulations on the treatment of the mentally ill. As was the case during imperial times, however, in contemporary China families remain ultimately responsible for the care and monitoring of the mentally ill; they are duty bound to ensure that the afflicted do not disrupt the social order.
Post-Mao period legislation reflects official attitudes toward mental illness and shows that eugenics still plays a role in contemporary China. The much debated 1995 Maternal and Infant Health Care Law 中华人民共和国母婴保健法 limits the reproductive rights of people with mental illness, amongst other disorders deemed ‘undesirable’ by the state. The 1995 Law stipulates that those deemed unsuitable for reproduction should undergo sterilization or abortion or be compelled to remain celibate so as to prevent ‘inferior births’. Article 12 of the Law states that couples seeking to register a marriage are required to obtain either a medical certificate or a certificate of medical appraisement. Article 8 describes ‘pre-marital examination’ as the process through which couples are screened for evidence of genetic, infectious and ‘relevant mental diseases’. Couples who do not pass the examination are requested to postpone their marriage or, if diagnosed with a genetic disease of a ‘serious nature, which is considered to be inappropriate for child-bearing from a medical point of view’, they are allowed to marry only after having consented to long-term contraceptive measures or following the a procedure of ligation. As reported by Veronica Petersen in 1996, the medical authorities at the local levels enjoy significant discretion in defining what conditions should disqualify a couple from marriage. Mental illness is generally listed in the inventories of ‘undesirable traits’.
In addition to controlling the reproduction practices of the mentally ill, the Chinese government has constantly emphasized the importance of managing the population of the mentally ill for the sake of social order and stability. In 2001, in an address for World Health Day Vice-Premier Li Lanqing 李岚清 stated: ‘mental well-being is an integral part of the overall health of people. To improve mental health is an issue related not only to the health of millions of people, but also to the social stability and security of human life and property of people’. Following this argument, some commentators even claim that the practice of labeling certain categories of dissenters as being ‘dangerously mentally ill’ and sending them to custodial mental health institutions has continued.
Notwithstanding this long history, the topic of mental illness and the law has only recently started to attract sustained attention from Chinese scholars. Even though statistics generated by the Ministry of Health speaks volumes about the emerging crisis in Chinese mental health care – with a substantial increase in the number of people with mental health diseases estimated at sixteen million in 2010 – until only few years ago, the topic was rarely discussed and then limited to experts in either the legal or the medical field.
The treatment of the mentally ill through the law started to gain widespread attention when tragic stories of abuses and miscarriages of justice involving mentally ill people sentenced to death began to circulate openly in the Chinese and Western media. The case of Qiu Xinghua 邱兴华 in 2006 and Yang Jia 杨佳 in 2008 caused a general uproar among the general public. On 28 December 2006, the forty-seven year-old farmer Qiu Xinghua – widely believed to be suffering from mental illness – was executed in Ankang, Shaanxi province 陕西省安康市 after having been convicted of killing eleven people in early 2006. Yang Jia – a jobless twenty-eight year-old Beijing resident described as a loner – was also sentenced to death for the premedited murder of eleven police officers. He was executed by lethal injection on 26 November 2008.
Views among the public diverged substantially in the case of Yang Jia’s conviction. On the one hand, some members of the public supported the traditional view upon which forensic assessment is simply used as an excuse for exculpating criminals. They maintain a view that the law is a useful instrument so long as it protects society. On the other hand, the more progressive scholarly community associated the case with China’s failure to advance its criminal justice system and human rights protection. They extrapolated from the case a number of specific issues related to the weaknesses inherent in the legal system as a whole.
In 2009, the Akmal Sheik occurred. Sheik, a British citizen believed by British authorities to be mentally ill, was sentenced to death for drug offences and executed in China. The case generated particular interest internationally as people started to realize that a faulty Chinese system might also have an adverse impact on foreign citizens who, because of their mental health status, may fall victim to unjust punishment in China. Cases involving foreigners such as that of Sheik have stimulated more interest and attention in Western countries; they have also demonstrated a general lack of knowledge and understanding of the Chinese system of mental health assessment, making it very difficult to know how governments and individuals can effectively react to and handle similar cases in the future.
The Chinese and international legal community hoped that amendments to the 1996 Criminal Procedure Law and the issuing of a new Mental Health Law 中华人民共和国精神卫生法 in October 2012 would provide effective tools to protect this group of vulnerable citizens. However, as mentioned by Professor Guo Zhiyuan 郭志媛 in the interview below, both laws have been ideological battlefields involving those who focus on the protection of society and the maintenance of stability and order pitted against those opposed to this imperative when it threatens the protection of the rights of the vulnerable.
Guo Zhiyuan is an Associate Professor at the China University of Political Science and Law 中国政法大学 in Beijing and Deputy Director of the Center for Criminal Law and Justice 刑事司法学院刑事诉讼法学理论研究所. She is one of the few legal scholars in China today who openly addresses the problems of mental health in relation to the justice system. Professor Guo has been involved in a number of international projects considering the issue of mental health in the law both from a theoretical and an empirical perspective.—Elisa Nesossi and Susan Trevaskes
Question: Following twenty-seven years of intense debate, on 26 October 2012, the National People’s Congress Standing Committee released China’s Mental Health Law. In your view, why did the drafting of this law take so long? What have been the stumbling blocks in the law-making process? And, who have been the main actors involved?
Answer: The legislative process that brought about the enactment of the PRC’s first Mental Health Law in October 2012 can be divided into three distinct phases:
- From 1985 up to 2007, the Ministry of Health led the drafting of the Law. While legal experts were consulted sporadically, their involvement was fairly limited and their voice quite feeble;
- At the end of 2007 – after twenty-two years of discussion and the circulation of a number of drafts of the Mental Health Law – the Ministry of Health finally submitted a final draft to the State Council for review. During this second phase, the legislature started to play a crucial role. Following consultations with medical and legal experts and representatives from relevant international organizations (WHO, for example), the Office of Legislative Affairs of the State Council revised the draft and, in June, 2011, posted it online to solicit public comments; and,
- The last phase – from October 2011 to the time of enactment of the Law – witnessed intense reworking of the draft by the National People’s Congress Standing Committee, which first reviewed and discussed the draft in October 2011 then again August 2012 and, finally, in October 2012.
It was not until 2007 that the legal community was directly involved in the discussions concerning the Mental Health Law. While this may seem quite anomalous to outside observers, it may appear less suspicious if we take into account the ‘interdisciplinarity’ of legislation which touches upon issues concerning criminal law, civil law and welfare law. Indeed, only a very limited number of legal scholars had both a deep expert knowledge of mental health issues and a professional interest in an area which was not considered particularly significant at the time. Today, the increased interest from a number of different stakeholders in society – officials, the media and international observers – has provided scholars with a new stimulus in approaching this area of law.
One the key reasons that explains why it took almost three decades for China to enact the Mental Health Law relates to the complex nature of the ideological issues this law touches upon and the related professional and institutional interests concerned. The drafters were confronting essential dilemmas concerning the ideology underpinning the Law. Thus, should the Law be framed in the context of social control or rights protection? And, ultimately, how do legislators balance these two often divergent objectives? Different answers to these key questions would have determined divergent solutions to issues like compulsory hospitalisation and adequate institutional treatment. It would have had also an impact on determining who is responsible for deciding to commit a person to a psychiatric hospital – the psychiatrists, the guardians of the patients, or the patients themselves.
Coming from very different professional backgrounds, the answers offered by health practitioners and legal practitioners are very different. While the health community looks at the mentally ill as patients to be treated, legal practitioners consider them legal subjects whose rights and interests should be defended and protected. Health practitioners argue that it should be the psychiatrists who have the final say on the need for hospitalisation. In contrast, the legal experts tend to claim that the patients themselves should have the right to refuse to be hospitalised if there is no indication that they are a threat to themselves or others.
Q: Can you identify the main reasons why the Mental Health Law was passed now? To what extent is the promulgation of this law related to the 2012 amendment of the Criminal Procedure Law?
A: Two things should be understood as background to the promulgation of this law now. First, over the past decade, mental health problems have become increasingly significant for Chinese society. According to statistics released by the China Centre for Disease Control and Prevention in 2009, more than 100 million people suffer from mental diseases of various types, and more than sixteen million of them are seriously mentally ill. Another factor is that scandals related to the arbitrary hospitalisation of individuals have come to public attention from time to time. These cases were interpreted as resulting from the existence of loopholes in current legal practice. For example, some sane people were reportedly locked up for years in mental facilities for the sake of the pecuniary interest of family members, or indeed by local government authorities who regarded them as troublemakers or persistent petitioners. In recent years, such issues have become matters of serious concern both for experts and for the general public. Collectively and individually they pressured legislators to include the Mental Health Law in legislative agenda for 2011. It is also worth noting that the law was released just before the Eighteenth Party Congress, presumably to show the Party’s commitment to protecting the welfare of the people.
The amendment to the 1996 Criminal Procedure Law earlier in 2011 also introduced changes related to the treatment of the mentally ill in criminal proceedings. However, generally speaking, the Mental Health Law is a specific law that tackles issues not addressed by the Criminal Procedure Law and it applies more broadly to different areas.
Q: In view of the number of miscarriages of justice and abuses involving people who are allegedly mentally insane, various observers both within and outside China have recently discussed the problematic issue of mental health assessment during criminal proceedings and compulsory hospitalisation. Could you give us with a brief overview over the process of mental health assessment of criminal suspects and defendants in criminal proceedings, the authorities involved in such processes and the institutions responsible for the hospitalisation of the mentally ill?
A: Mental health assessment can occur at any stage of a criminal procedure. All official agencies – that is, the gongjianfa 公检法 authorities [that is, the police, the procuratorate and the courts] – are entitled to initiate the mental examination of a criminal suspect or defendant in criminal cases, as long as they think that there is a possibility that he or she is possibly insane. By contrast, the suspects or defendants and their lawyers can only file an application to the authorities to request a mental health examination.
Under the 1996 Criminal Procedure Law, it was not clear who should be responsible for the hospitalisation of the mentally ill; however, in practice, it was generally the police who had the final decision. The revised 2012 Criminal Procedure Law establishes a completely new special procedure called compulsory medication or hospitalisation. It introduces to the process a commitment hearing (a sort of judicial review procedure) which leaves it up to the court to decide if the suspect or defendant should be compulsorily hospitalised.
Q: One of the most debated problems concerning the treatment of the mentally ill in China is forced commitment to psychiatric institutions, something which seems to have been abused over the years. What kind of safeguards does the new law introduce against forced psychiatric commitment and its potential abuses?
A: Forced psychiatric commitment should follow the compulsory medication procedure established by the new 2012 Criminal Procedure Law, and civil commitment should follow the procedures established by the 2012 Mental Health Law. However, the Mental Health Law does not include a judicial review mechanism for civil commitment to mental institutions. This means it is not a responsibility of the court to decide forced commitment to psychiatric institutions. Indeed, the mental health legislation provides for a principle of voluntary hospitalisation and a ‘dangerousness principle’ as standards for forced civil commitment. Article 30 determines that a person suffering from a mental disorder has the right to refuse residential therapy, except when:
- He or she has already exhibited self‐harming conduct or there is a danger of self‐injury; or,
- He or she has already exhibited conduct that endangers the safety of others, or there is danger that he or she will endanger the safety of others.
In the first situation, the guardian has the power to agree or disagree on residential therapy. In the second case, if the patient himself or his/her guardian disagrees, either of them can apply for a second diagnosis or evaluation and even for an independent expert evaluation, as stipulated by Article 32. Furthermore, the 2012 Mental Health Law also grants patients and their guardians the right to file lawsuits when they believe their rights have been infringed.
One of the main concerns regarding these safeguards is related to the lack of control over the guardians. Almost all the safeguards took it for granted that the guardians would act in the best interest of the patients. However, evidence exists that indicates that this is not always the case. For example, what if the guardians have a conflict of interest? The 2012 Mental Health Law has not resolved this problem and it has even granted extensive rights to the guardians without subjecting them to appropriate control or oversight.
Q: Wu Bangguo 吴邦国 – the Chairman of the Standing Committee of the National People’s Congress – claimed that the new Mental Health Law is aimed at harmonizing the rights of the mentally ill with the public interest and ‘protecting the rights of the mentally ill, raising public mental health standards, promoting the development of mental health undertakings and maintaining social harmony and stability’. In your view, in what ways could the new law promote and protect the rights of the mentally ill? And, in what ways have violations of such rights undermined social harmony and stability in the past?
A: The new Mental Health Law follows the principle of protecting the rights of the mentally ill, and has established a principle of voluntary hospitalisation, granting a series of rights to the mentally ill. For example, Article 4 ensures safeguards against violations of the personal dignity, the physical person and the properties of individuals with mental disorders. The law protects the lawful rights and interests of persons with mental disorders in areas such as education, labour, medical treatment and provides for state and social assistance. Relevant departments and individuals are called on to preserve the privacy of the individuals with mental illness and to protect the information from which the identities of persons with mental disorders might be deduced (such as their names, images, addresses, workplaces and medical history), except when lawful performance of professional duties requires it to be released. In addition, Article 5 provides that organizations and individuals must not discriminate, demean or mistreat persons with mental disorders, and must not illegally limit the personal freedom [physical freedom] of persons with mental disorders. News reports and literary artistic works etc. must not include content that discriminates against or demeans persons with mental disorders.
The idea that inspired change was that the violation of such basic rights would create a danger to both the individuals with a mental disorder and to the community at large. Safeguards against arbitrary hospitalisation were introduced to avoid the risk of confinement of ordinary sane people confined and their treatment as mentally ill. Violations of these basic safeguards would lead to public discontent, feelings of unsafety and mistrust of state institutions and the law.
Q: Your empirical work reveals that the scope and the quality of work of mental health institutions vary significantly around the country. In your view, to what extent will the new Mental Health Law be able to standardise diverse consuetudinary practices in mental health institutions? Do you envisage that authorities will be issuing detailed implementing regulations and local rules in the future?
A: China is a vast country and, I believe, the implementation of the Mental Health Law will prove quite uneven. Indeed, well before the release of the new law, several cities – Beijing, Shanghai, Hangzhou, Ningbo, Wuxi and Wuhan – had already passed their own local mental health regulations. However, on 1 May 2013, as the new Mental Health Law will come into force, all local mental health regulations will be repealed. The new law has the ambition of regulating mental health issues nationwide. However, to date, because of differences in resourcing and local peculiarities it is still hard to anticipate the extent to which the new law will be able to standardise diverse practices in mental health institutions throughout the country. Considering the fact that the mental health legislation in China is still in its infancy, I cannot envisage that in the short term authorities will issue implementing regulations.
Q: Finally, we are interested in the working relationships between law and health practitioners. To what extent are the two communities of professional able to share their views on issues related to the treatment of the mentally ill? Are there institutional or informal channels to facilitate such a dialogue between the two groups of professionals?
A: Due to their differing professional backgrounds, the perceptions of legal and the health practitioners on issues related to the treatment of the mentally ill are very different. The concern of law practitioners focuses primarily on the protection of the rights of the mentally ill, on the resolution of cases and the protection of victims and the general public. By contrast, the health practitioners attach utmost importance to the need of curing the patients and preventing them from injuring themself and others. Both communities have the common objective of preventing individuals with mental illness from harming society; however, they have divergent opinions as to go about achieving those aims. Law practitioners, for example, only pay attention to individuals with mental illness severe enough to affect criminal responsibility or capacity to stand trial. By contrast, health practitioners can direct their treatment to any individual with mental disorder.
The categories adopted by the two communities to classify different forms of mental illness vary as well and this may create serious problems when assessment is conducted. As a result, I believe that it is of crucial importance for the two communities to communicate. While this was very difficult in the past, today the channels for communications have improved providing significantly more opportunities for better mutual understanding. In drafting the new Mental Health Law, legal experts and psychiatrists got to know each other and networks have formed based on common interests and mutual understandings. For example, it is worth mentioning that a Research Center on Law and Psychiatry 法律与精神医学研究中心 was established at China University of Political Science and Law in the summer months of 2011.
 In Liu Xiehe, ‘Psychiatry in Traditional Chinese Medicine’, British Journal of Psychiatry, vol.138, no.5 (1981): 429.
 The Qing Code was the most recent body of imperial laws. It was compiled in 1740 and consisted of 436 sections. The first translation of the Qing Code into a western language was Sir George Thomas Staunton’s Ta Tsing Lau Lee: being the fundamental laws; and a selection from the supplementary statutes, of the penal code of China, London: T. Cadell and W. Davies, 1810.
 Martha Li Chiu, ‘Insanity in Imperial China: A legal case study’, in Arthur Kleinman and Tsung-Yi Lin, eds, Normal and Abnormal Behaviour in Chinese Culture, Dordrecht, Boston: D. Reidel, 1981, pp.75-94.
 Veronica Pearson, ‘The Chinese in Mental Health Policy and Practice’, International Journal of Law and Psychiatry, vol.19, no.3 (1996): 437-458.
 Vivien Ng offers one of the most comprehensive research on the legal treatment of the mentally ill in imperial China. See: Vivien Ng, Madness in late Imperial China: From Illness to Deviance, Norman, OK: University of Oklahoma Press, 1990.
 Reported in: Ernest Alabaster, Notes and Commentaries on Chinese Criminal Law, and Cognate Topics, with Special Relation to Ruling Cases: Together with a brief excursus on the law of property, chiefly founded on the writings of the late Sir Chaloner Alabaster, London: Luzac, 1899, p.24.
 Frank Dikötter, Imperfect Conceptions. Medical knowledge, birth defects and eugenics in China, London: Hurst and Company, 1998.
 Jin Liu, Hong Ma, et al, ‘Mental Health System in China: History, recent service reform and future challenges’, World Psychiatry, vol.10, no.3 (2011): 210-216.
 Hu Jinian, James Higgins and Louise Higgins, ‘Development and Limits to Development of Mental Health Services in China’, Criminal Behaviour and Mental Health, vol.16 (2006): 69-76.
 Robin Munro, ‘Judicial Psychiatry in China and Its Political Abuses’, Columbia Journal of Asian Law, vol.14, no.1 (2000): 18.
 Adopted at the Tenth Meeting of the Standing Committee of the Eighth National People’s Congress on 27 October 1994, promulgated by Order No.33 of the President of the People’s Republic of China and effective as of 1 June 1995. Available at: http://www.gov.cn/banshi/2005-08/01/content_18943.htm
 Carole J. Petersen, ‘Population Policy and Eugenic Theory: Implications of China’s ratification of the United Nations Convention on the Rights of Persons with Disabilities’, China: An International Journal, vol.8, no.1 (2010): 104.
 Reported in: Guy Malcolm Ramsay, Shaping Minds: A discourse analysis of Chinese-language community mental health literature, Amsterdam: John Benjamins B.V., 2008, p.32.
 Robin Munro, ‘Judicial Psychiatry in China and Its Political Abuses’, Columbia Journal of Asian Law, vol.14, no.1 (2000): 45.
 This figure has also been confirmed by statistics from other sources. According to the World Health Organization, seven percent of China’s population – about 100 million people – suffers from some form of mental illness. See Kent Ewing, ‘Down and out in China’, Asia Times Online, 8 May 2010, online at: http://www.atimes.com/atimes/China/LE08Ad01.html.
 Huang Xuetao, Liu Xiaohu, Liu Jiajia, ‘A Legal Analysis Report on Chinese Hospitalization System for Mental Patients’, http://wenku.baidu.com/view/3bb31b2acfc789eb172dc8b1.html, 2010, accessed on 15 April, 2011.
 Article 82 of the Mental Health Law states: ‘Where persons with mental disorders or their guardians or close family members feel that an administrative organ, medical establishment or other relevant unit or individual have violated this law and infringed a person with a mental disorder’s lawful rights and interests, they may file suit in accordance with law’.