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APPENDIX IV: PRC DRAFT LEGISLATION
Document 14: Mental Health Law of the People's Republic of China Draft of Ninth Revision in English368
Chapter 1. General Provisions Article 1. The purpose of the Mental Health Act is to facilitate the development and improved management of mental health work in China; to facilitate the improved care and treatment of mentally ill persons; and to protect the legal rights of the mentally ill. Article 2. To develop mental health services, to provide active treatment of mental illness and to prevent mental illness are the guiding principles of mental health work in our country. The program of developing mental health services shall be included in the global program and yearly plans of governments at various level; facilities for mental health services shall be improved; and scientific research on mental health shall be undertaken and full utilization of the results of such research shall be encouraged in the treatment and prevention of mental disorders and in the management of mental health services, in order to guarantee the effective implementation of the guiding principles being. [sic] Chapter 2. Mental Health Facilities Article 3. Mental health centers, mental hospitals or mental health care institutions (or stations), mainly undertaking diagnosis, treatment and prevention of various mental disorders in local areas, shall be organized and led by bureaus of public health in the provinces, autonomous regions and cities. Article 4. Mental health rehabilitation centers, mental rehabilitation hospitals or facilities, mainly admitting and taking care of the mentally ill in convalescent or chronic stages in order to promote their rehabilitation, shall be organized and led by bureaus of Civil Administration, in the provinces, autonomous regions and cities. Article 5. Security mental hospitals, mainly admitting and taking care of the mentally ill under compulsory treatment and strict control according to legal provisions, shall be organized and led by bureaus of Social Security369 in the provinces, autonomous regions and cities. Article 6. Departments of mental health, for carrying out mental health services shall be set up in general hospitals of counties or at higher level. Psychiatric units or mental hospitals, mainly admitting mentally ill persons under penalty, shall be set up in the hospitals of prison or correctional institutions as required. Article 7. Mental health facilities of provinces or cities shall be set up in quiet places with easy access, in order to facilitate the patients to get necessary care and treatment. Article 8. The ration of personnel to psychiatric beds shall be determined according to the scales and the roles of the mental health facilities. The ratio of personnel to psychiatric beds in mental health centers and mental hospitals shall not be lower than 1:1; in mental rehabilitation centers or in security mental hospitals the ration shall not be lower than 0.6:1; and in teaching hospitals or research institutions, the ration shall be higher than 1:1. The component of mental health professional staff in the total number of personnel of the mental health organizations shall not be less than 70 percent. Article 9. In various mental health facilities, doctors and nurses shall have been professionally trained and qualified. Psychiatric wards shall be quiet and comfortable. The environment inside the ward shall be clean and decorated, and outside there should be enough space for the daily activities of the patients. Facilities for occupational therapy shall be available. Various routine work systems, protection measures for patients and management systems including open wards or semi-open wards shall be established. Article 10. Various mental health facilities shall be under the quality control supervision and regular review by the local authorities. Facilities failing to pass such reviews shall be ordered to be improved within a limited time period. Article 11. Departments of Mental Health or Psychiatry and Departments of Medical Psychology or Behavioral Sciences shall be set up in medical universities or medical colleges. In some universities with adequate facilities, specialty or faculty of mental health shall be set up for training teachers, specialists and professionals in mental health. Chapter 3. Management of Mental Health Work Article 12. A National Mental Health Committee, consisting of members from Ministries of Public Health, Civil Administration, Social Security,370 Justice, National Education Committee, and leading mental health workers of the country, shall be organized by the State Council. Article 13. Mental Health Committees, consisting of members from Departments of Public Health, Civil Administration, Social Security, Justice, and mental health experts, shall be organized by the governments of provinces, autonomous regions and cities, respectively. The leading groups of mental health shall be organized by the county government. Article 14. The duty for mental health committee at various levels and mental health leading groups shall be: 1) To formulate mental health programs that will be subject to regular review, and to promote their implementation by relevant departments.
Chapter 4. Treatment of the Mentally Ill Article 15. The treatment and hospitalization of the mentally ill shall principally be on a voluntary basis. Patients who consent to be admitted to mental health facilities shall fill a voluntary admission form according to the written recommendations of the evaluating or referring psychiatrist. In the hospital patients shall hold the same rights as patients in medical wards. Patients can be discharged on their own request. Article 16. For the best health of mentally ill persons, any who shows florid symptoms severe enough to impair their capacity to work, study or living skills, but who refuse to be voluntarily hospitalized or receive treatment, shall be taken to the mental health facility by their close family members or guardians for treatment for the purpose of preventing further deterioration. Following evaluation by the psychiatrist and confirmation of the need for hospitalization, patients can be taken by their close family members or guardians with the certification by the psychiatrist and admitted. The discharge of patients shall be with the agreement of close family members or guardians, and shall follow the proper process stated in this Act. Article 17. Persons who are diagnosed as mentally ill can be involuntarily hospitalized by their close family members or guardians, or the working unit, or local police, with the admitting certification by a psychiatrist for the purpose of treatment and custody, if they show one of the following: 1) Violence toward others;
When the psychiatrist in charge of the treatment testifies that the patient's mental disorder is in remission and that the danger of harm to other or to himself is no longer present, the person who took the patient to the hospital can take him out after following the prescribed process. Article 18. Mental patients shall be treated, as far as possible, in the community or outpatient facilities. When hospitalization is needed, they shall be placed in the least restrictive facilities such as the psychiatric department in a general hospital or a mental health facility. Involuntary admission to a security hospital shall be used only for those patients with clear evidence of dangerous intention and behavior. Article 19. In the hospital, the rights of mentally ill persons to correspond, to purchase or receive items for daily living, to receive visits from relatives, friends and others, and to keep their privacy, shall be guaranteed. Mental health professionals shall not insult, physically or mentally abuse patients or act in any way that harms or injures patients. Article 20. Mental health professionals are obliged to put the patient under temporary protective restraint only when the patient is likely to hurt himself or others in the hospital. Such action can only be ordered by a psychiatrist, and the reasons and procedures of restraint shall be recorded in the patient's chart. Article 21. Mental patients themselves and their family members have the right to be informed about the treatment and its possible side-effects, and the doctors shall tell them the truth, and unless it is involuntary treatment, patients and their family members have the right to decide whether or not to take the treatment. Before applying electric convulsive therapy or psychosurgery, written permission in written form [sic] by patient himself or his family members is required. Article 22. Mental patients, their family members or guardians have the right to file a complaint against the superintendent or professionals in the mental health facility to the local Mental Health Committee or leading group and request an investigation and suitable intervention, when the rights of the patients are infringed. They also have right of appeal to the local court if not satisfied with the decision made by the local Mental Health Committee or leading group. Article 23. Mental patients have the right to receive adequate treatment. Those who need treatment but lack the resources to cover their expenses for treatment, shall be provided financial support or access to treatment by local welfare agency or local authority. Article 24. Mental patients who had a job before the illness have the right to get mental health care and welfare free of charge as other ill person do. Chapter 5. Rights of the Mentally Ill Article 25. Mentally ill persons shall be treated with respect for human dignity. They shall not be expose to teasing, discrimination, insult, and abuse of any kind. Article 26. The right of mentally ill persons to vote or be elected, if suspended by court because of their illness, shall be restored as soon as their illness is in remission and upon such certification by a psychiatrist. Article 27. Mentally ill persons who had jobs before their illness have the right to return to their former position, or to be placed in a more suitable one upon the recommendation of a psychiatrist when their illness is in remission. Article 28. Mentally ill persons who have no job shall be provided opportunity for work by the local government and agencies in such places as welfare factories, occupational workshops when they recover from their illness and are able to work. Welfare factories and occupational workshops in which more than 50 percent of the workers are mental patients are exempted from taxation. Article 29. Mentally ill persons who lost their ability to work and have no living resources shall be [eligible for]372 social welfare provided by local authorities, as other handicapped persons. Article 30. Mentally ill students, who discontinue their study under the recommendation of a psychiatrist based on the nature and severity of their illness, can return to their studies under the recommendation of the mental health facility and school regulations when they recover from their illness. Article 31. School or classes providing special education and training shall be set up for mentally retarded children, to enhance their ability to live and work. Article 32. Mentally ill persons who are in remission and who are competent to make the decision shall be allowed to marry under the Marriage Law of the PRC. Their right to have children shall not be denied solely for reason of mental illness. Article 33. When the spouse of a mentally ill person wants a divorce, under provisions of Article 25 of the Marriage Law of the PRC, the living, treatment, and guardianship arrangements shall be made by the court. Article 34. The right of mentally ill persons to inherit under provisions of the Inheritance Law of the PRC shall not be taken away for reason of their illness. Article 35. Mentally ill persons who are involved in mental health teaching or as research subjects shall be given information about the purpose, procedures and related matters in clear and understandable form, and their informed consent shall be obtained. Chapter 6. The Criminal Process Article 36. In the criminal process, the proceedings shall be suspended when the defendant is declared incompetent to stand trial because of mental illness; the proceeding will continue when the defendant is restored to competency. Anyone found to be mentally ill and not able to serve the penal sentence, shall be transferred to mental health facility or put on probation under the guardianship of the family members to receive the needed treatment. Article 37. During the penalty, the days spent in mental health facilities for treatment shall be counted in the time to be served. Article 38. In security mental hospital, the patient's mental condition shall be reviewed at least once every six months. When a remission is confirmed by a psychiatrist and the symptoms endangering others and himself are no longer present, the patient can be discharged and put under the care of his family members or guardians. Patients transferred from the judicial system shall be transferred back at discharge.
Chapter 7. Forensic Mental Health Assessments Article 39. The forensic mental health evaluator should be qualified as a psychiatrist (or "attending psychiatrist" so called in China) or as a forensic physician with knowledge and clinical experience in the field of psychiatry. Article 40. The rights and duties of forensic mental health evaluators: 1) Right to review the relevant case materials, to join the investigation and to interview or question the concerned persons or witnesses with the consent of the referring agency;
The duties of the forensic mental health evaluators: 1) Forensic mental health evaluators have a duty to safeguard the confidentiality of the case materials reviewed.
Article 41. Definite conclusions regarding the mental state of the defendant at the time of the alleged offence or action, and written opinions about the criminal responsibility of the assessed person should be included in the report of the forensic mental health evaluation. Different opinions in the assessment or conclusion should also be indicated in the report. If questioned by the referring agency regarding differing opinions or conclusions in the report, the evaluator has the duty to explain. If the referring agency considers it necessary, a re-evaluation can be conducted by the original evaluators or other evaluators based on additional materials. However, the conclusions should not be revised under any coercion or pressure.
Article 42. The assessed person, or his legal representative or lawyer has the right to know the results and conclusions of the assessment and the evidences on which they are based. When the conclusions of the assessment are believed to be incorrect or unfair, the assessed persons, their family members or guardians have the right to request the court to review the conclusion or request another agency to re-evaluate. The payment to the re-evaluator should be provided by the applicant. Chapter 8. Legal Responsibility Article 43. Persons who engage in any of the following acts shall be investigated and have legal responsibility under Article 134 of the PRC Criminal Law: 1) Acts that threaten, menace, blackmail or inflict violence on a person, and which directly induce a severe mental disorder.
Article 44. Rape or seduction of the mentally ill or mentally retarded persons who lack the ability to protect themselves by means of cheating, luring, or use of force, shall be prosecuted under provisions of Article 139 of the PRC Criminal Law. Article 45. The intentional infliction of physical harm on a mentally disabled person resulting in organic mental disorders, or intellectual impairment, or severe personality change with significant impairment of the ability to work, study and live, shall be punished as severe injury, under provisions of the PRC Criminal Law. Article 46. The Mental Health Committees or leading groups have the right to give criticism, warnings, or penalties to agencies or persons who severely violate the Mental Health Law. If grave consequences are induced, the legal responsibilities will be investigated and prosecuted under the Criminal Law. Chapter 9. Definitions Article 47. The terms in this law are defined as follows: Mental Disorders: Referring to psychosis, neurosis, developmental disorders, personality disorders, psychosexual disorders and other mentally abnormal states. Mentally Disordered Persons: Persons who suffered from a mental disorder or disorders. Mental Health Services: The programs and resources supplied for diagnosis, treatment, rehabilitation and prevention of mental disorders, and for the promotion of mental health of normal persons. Mental Health Facilities: The facilities provided for mental health services, such as mental health centers, mental rehabilitation centers, security mental hospitals, mental hospitals, departments of psychiatry in general hospital, mental health care institutions, psychological consultation clinics, rehabilitation stations, occupational therapy stations, day care centers, welfare shops for the mentally ill, and other facilities for mental health care of children and aging persons. Community-based Mental Health Services: Services provided by the primary mental health facilities for the mentally ill in the community. These facilities include the following: day hospitals where patients stay during the day; rehabilitation stations or occupational therapy stations where the patients take part in occupational therapy; home beds refer to visits by or social workers to interview and treat mental patients in their homes and give advice on treatment and nursing to patients and their relatives. Open-door Ward: Wards where the patients have the right to determine whether they should be admitted and discharged, or should accept any treatment. The patients may be participating freely in any activity in the hospital. Psychiatric in-patients have the same rights as the in-patients in general hospital. Half-open Wards: Wards where the relatives or the guardians of the patient have the right to determine whether the patient should be admitted and discharged, and the patient should accept any treatment. The patient may be allowed to move about in the ward or outside; however, for reasons of safety, the patient is allowed to take part in only some activities in the hospital. Chapter 10. Appendix Article 48. Appropriate implementation clauses or other regulations may be formulated by the concerned Departments in the State Council. Article 49. The date of the beginning of the implementation of this law is ___. (Note: This Draft was reviewed and discussed by all participants and WHO experts, especially Dr. Saleem Shah,374 during the MPH/WHO National Workshop on Mental Health and Law, Chengdu, Sichuan, China, People's Republic of China, October 21-24, 1990.) 368 This English translation of the ninth draft of China's Mental Health Law appears as Annex 3 in a WHO report of January 28, 2000 describing the results of a WHO mission to China in September 1999 to discuss issues relating to mental health and law. As part of this mission, the WHO delegation and China's Ministry of Public Health jointly convened in Beijing a National Workshop on Mental Health Law. According to a note attached to Annex 3 of the WHO report, this ninth draft of the Mental Health Law was written "after the MPH/WHO National Workshop on Mental Health and Law, Chengdu, Sichuan, PRC, October 15-24, 1990." The inclusion of this draft of the Mental Health Law in the January 2000 report by the WHO almost certainly means that it was still the most recent draft of the Law, despite having been drafted some nine years previously. According to recent articles in the Chinese medical literature, a tenth draft of the Law is currently circulating for discussion in China, but no copy of the draft has as yet come to light. 369 NB: China's network of secure mental hospitals, or "Ankang," is entirely under the control and administration of the Ministry of Public Security (Gong'an Bu, i.e. the police). It is unclear why, in this and other Articles of the present translation, the term Gong'an was rendered as "Social Security"; elsewhere in the document (Article 17, item 3) it was correctly translated as "public security." 370 See previous Note. 371 Ditto. 372 The original translation states here: "shall be no social welfare..."; this was presumably a misprint. 373 This word is probably a typographical error and should read: "other." 374 Dr. Shah, who had very wide knowledge and experience of psychiatry in China, tragically died in a car crash in the early 1990s.
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