Op-Ed Contributors

Debate: Mentally ill patients

(China Daily)
Updated: 2010-05-04 07:58

Xu Defeng: Strengthen laws on holding them in custody

Regulations on when and how an mentally challenged person can be taken into custody are part of the general principles of the Civil Law, 1986, and its judicial interpretation by the Supreme People's Court, 1988. The General Principles differentiate between people who can be held fully responsible for their actions, on one hand, and those partly responsible or not responsible at all on the other. The general principles say a court, after proper examination, can declare a mentally challenged person has little or no capacity for civil conduct. But, according to interpretations, such declaration is a prerequisite for custody.

Existing regulations, in principle, describe on what basis a person can be declared intellectually challenged with little or no capacity for civil conduct. But they are not satisfactory because of the following reasons.

First, a person is declared totally or partly incapable of civil conduct on the basis of psychiatric and medical diagnoses. Civil conduct, however, is a judicial concept that determines the communication between the mentally challenged and other persons in society. Even though psychiatric diagnosis follows certain medical criteria, it does not conform fully to legal criteria.

Despite the presence of mental illness, a person does not necessarily lose the understanding of the nature and meaning of his or her conduct. If psychiatric diagnosis determines the nature of a person then legal experts should help the medical fraternity set a specific criterion for identifying the capacity for civil conduct.

Second, the law does not provide clear answers on how to protect mentally ill persons not diagnosed as having little or no capacity for civil conduct. The general practice is inaction that results in non-identification of the mentally challenged, who are thus left without custodians.

Third, when cases are relevant to the interests of the mentally challenged, the interpretation of the Supreme People's Court stipulates that identification can be based on the widely recognized mental condition of people. But this can happen only if stakeholders do not raise objections.

The stipulation is vague and arbitrary. The benchmark to decide who can be "stakeholders" is unclear, as is the definition of how to raise an objection. Hence, in practice, things can easily go against the interests of the wards. For instance, an unscrupulous son or daughter who wants to grab his or her parent's property can simply apply to send their parent/s to lunatic asylum.

A custody system should be set up for two reasons: To effectively establish legal relations for the wards and to protect fully. But protecting the wards is more important. People with little or no conscious control over their actions should get proper care in their day-to-day life.

The system to take mentally challenged people into custody should be changed. First, in normal cases, the authorities should respect the right of the mentally challenged to decide his or her choice of treatment. From the psychiatry point of view, people who lose the capacity to understand and judge are rare. Therefore, even a mentally challenged person with limited or no capacity for civil conduct should have the right to decide his or her matters.

Second, care of and protection for the mentally challenged must be strengthened, and the custody of property and personal safety should be integrated.

Third, in order to protect the mentally challenged, a system for State inspection and implementation should be established in order to supplement custody regulations. The inspection authorities may intervene when the custodians refuse to take the responsibility of custody. Besides, staff and facilities for the inspection of custody are deficient, posing a challenge to the improvement of the custody system.

The author is an associate professor with the Law School of the Peking University.