II. INTERNATIONAL STANDARDS ON ETHICAL PSYCHIATRY

In evaluating China's past and current practices in the field of forensic psychiatry, it is important to be aware of the more widely applicable standards of law and ethics that have been established by the international community in the general area of mental healthcare and psychiatry in recent decades. The bodies chiefly responsible for defining these standards are the United Nations, the World Psychiatric Association (WPA), and the various psychiatric professional organizations of different countries.³⁵ The pre-eminent or overarching relevant provisions - namely, that people everywhere enjoy equal rights to freedom of the person, freedom of political and religious belief, freedom of expression, the right to a fair trial and so forth - are comprehensively set forth in the Universal Declaration of Human Rights³⁶ and the International Covenant on Civil and Political Rights (ICCPR).³⁷

In the early 1980s, in response to growing international concern over the political misuse of psychiatry in the Soviet Union, its satellite states and a small number of other countries (notably, South Africa under apartheid),³⁸ the United Nations undertook a major investigative review of mental healthcare provision around the world. In particular, the world body focused on the rules, procedures and practices pursued by various countries in the area of involuntary psychiatric committal and treatment. In 1983, Special Rapporteur Daes presented the results of the investigative review in a report to the U.N., figuring the following passage prominently in its conclusions:

[W]e are painfully aware that:

Psychiatry in some States of the international community is often used to subvert the political and legal guarantees of the freedom of the individual and to violate seriously his human and legal rights.

In some States, psychiatric hospitalization treatment is forced on the individual who does not support the existing political regime of the State in which he lives.

On the basis of these findings, the Special Rapporteur recommended that the U.N. Commission on Human Rights should, among other things, urge all member States "[To] prohibit expressis verbis psychological and psychiatric abuses, in particular for political or other non-medical grounds."³⁹ After several years of discussion and drafting work within the UN, this initiative bore legislative fruit in December 1991, when the world body's General Assembly adopted a wide-ranging set of provisions entitled "Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care." According to Principle 4 of this important U.N. document,

· A determination that a person has a mental illness shall be made in accordance with internationally accepted medical standards.

· A determination of mental illness shall never be made on the basis of political, economic or social status, or membership in a cultural, racial or religious group, or for any other reason not directly relevant to mental health status.

· Family or professional conflict, or non-conformity with moral, social, cultural or political values or religious beliefs prevailing in a person's community, shall never be a determining factor in the diagnosis of mental illness.

· A background of past treatment or hospitalization of a patient shall not of itself justify any present or future determination of mental illness.

· No person or authority shall classify a person as having, or otherwise indicate that a person has, a mental illness except for purposes directly relating to mental illness or the consequences of mental illness.

Among other important general provisions, the Principles state: "Every patient shall have the right to be treated in the least restrictive environment and with the least restrictive or intrusive treatment appropriate to the patient's health needs and the need to protect the physical safety of others" (Principle 9). "Medication shall meet the best health needs of the patient, shall be given to a patient only for therapeutic or diagnostic purposes and shall never be administered as a punishment or for the convenience of others" (Principle 10). "Physical restraint or involuntary seclusion of a patient shall not be employed except in accordance with the officially approved procedures of the mental health facility and only when it is the only means available to prevent immediate or imminent harm to the patient or others" (Principle 11.11). "Psychosurgery and other intrusive and irreversible treatments for mental illness shall never be carried out on a patient who is an involuntary patient in a mental health facility..." (Principle 11.14). "In the cases specified [where involuntary committal or treatment is involved] the patient or his or her personal representative, or any interested person, shall have the right to appeal to a judicial or other independent authority concerning any treatment given to him or her" (Principle 11.16). And according to Principle 13, all mental patients shall have "the right to full respect for his or her...freedom of communication...and freedom of religion or belief."

Principle 20 deals specifically with the rights of mentally ill criminal offenders and reads as follows:

· The present Principle applies to persons serving sentences of imprisonment for criminal offenses, or who are otherwise detained in the course of criminal proceedings or investigations against them, and who are determined to have a mental illness or who it is believed may have such an illness.

· All such persons should receive the best available mental health care as provided in Principle 1 above. The present Principles shall apply to them to the fullest extent possible, with only such limited modifications and exceptions as are necessary in the circumstances. No such modifications and exceptions shall prejudice the persons' rights under the instruments noted in paragraph 5 of Principle 1, above.⁴⁰

· Domestic law may authorize a court or other competent authority, acting on the basis of competent and independent medical advice, to order that such persons be admitted to a mental health facility.

· Treatment of persons determined to have a mental illness shall in all circumstances be consistent with Principle 11 above.⁴¹

Thus, the U.N. General Assembly ruled that no derogation from or restriction of fundamental civil and political liberties was to be permitted, or otherwise viewed as justifiable, in the case of detained criminal offenders who were ascertained by governmental authorities as being mentally ill.

Within the international psychiatric community, increasing reports in the 1970s and thereafter concerning the political abuse of psychiatry in the former Soviet Union and elsewhere provided a powerful impetus to efforts by concerned professionals to establish clear ethical codes aimed at eliminating political and other forms of unwarranted outside interference from the practice of psychiatry in all countries. The first major outcome of these efforts was the "Declaration of Hawaii," passed by the General Assembly of the World Psychiatric Association in July 1977 and updated at its July 1983 world congress. According to the preamble of the Declaration,

It is the view of the World Psychiatric Association that due to conflicting loyalties and expectations of both physicians and patients in contemporary society and the delicate nature of the therapist-patient relationship, high ethical standards are especially important for those involved in the science and practice of psychiatry as a medical specialty. These guidelines have been delineated in order to promote close adherence to those standards and to prevent misuse of psychiatric concepts, knowledge and technology.

The WPA statement continued,

If and when a relationship is established for purposes other than therapeutic, such as in forensic psychiatry, its nature must be thoroughly explained to the person concerned... As soon as the conditions for compulsory treatment no longer apply, the psychiatrist should release the patient from the compulsory nature of the treatment and if further therapy is necessary should obtain voluntary consent... The psychiatrist must on no account utilize the tools of his profession once the absence of psychiatric illness has been established. If a patient or some third party demands actions contrary to scientific knowledge or ethical principles the psychiatrist must refuse to cooperate... The psychiatrist should stop all therapeutic, teaching or research programs that may evolve contrary to the principles of this Declaration.⁴²

At its world conference in Athens in October 1989, moreover, the WPA adopted a further resolution stating, among other things: "A diagnosis that a person is mentally ill shall be determined in accordance with the internationally accepted medical standards.... Difficulty in adapting to moral, social, political, or other values, in itself should not be considered a mental illness."⁴³ In addition, the Athens resolution affirmed a number of key subsidiary protections for the rights of the mentally ill. For example: "The final decision to admit or detain a patient in a mental health facility as an involuntary patient shall be taken only by a court or a competent independent body prescribed by law, and only after an appropriate and proper hearing... They have the right of appeal and to be heard personally by the court or competent body." Also, "Patients who are deprived of their liberty shall have the right to a qualified guardian or counsel to protect their interests."⁴⁴ In August 1996, the WPA's General Assembly reiterated and updated these various principles in its Declaration of Madrid.⁴⁵ As noted above, China is a full member of the WPA.

Taken together, the UN's 1991 Principles and the WPA's Declarations of Hawaii and Madrid provide the core set of international standards upon which the ethical and legal practices of psychiatrists around the world should properly be evaluated. By detaining large numbers of non-violent political and religious dissenters and subjecting them to forensic psychiatric assessment and compulsory hospitalization, China's medico-legal establishment is acting in violation of almost all of these international legal and ethical standards.

³⁵ Several Western psychiatric associations have formulated national-level ethical guidelines in recent years. One example is the Canadian Medical Association's "Code of Ethics Annotated for Psychiatrists," approved by the board of directors of the Canadian Psychiatric Association in October 1978; see http://www.cma.ca/eng-index.htm. In the area of forensic psychiatry, one of the more noteworthy examples is the "Ethical Guidelines for the Practice of Forensic Psychiatry," adopted by the American Academy of Psychiatry and the Law in May 1987 (and revised in October 1989); see http://www.cc.emory.edu/AAPL/ethics.htm.

³⁶ According to Article 2 of the Universal Declaration of Human Rights (adopted and proclaimed by General Assembly Resolution 217 A (III) of 10 December 1948), "[N]o distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs"; in other words, all rights listed in the document apply equally to all citizens of any country. Article 5 states, "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment"; Article 9 adds, "No one shall be subjected to arbitrary arrest, detention or exile"; and Article 10 continues, "Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him."

On more specific related matters, the Declaration states, in Article 18, "Everyone has the right to freedom of thought, conscience and religion; [including the right...] to manifest his religion or belief in teaching practice, worship and observance"; in Article 19, "Everyone has the right to freedom of opinion and expression..."; and in Article 23 (4), "Everyone has the right to form and to join trades unions for the protection of his interest."

Finally, addressing the general question of states of emergency and national security-related measures, Article 29 specifies: "In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society."

³⁷ The relevant rights as set forth in the Universal Declaration are enlarged and elaborated upon in the International Covenant on Civil and Political Rights (ICCPR) (adopted Dec. 16, 1966, G.A. Res. 2200A [XXI], entered into force March 23, 1976, signed by China in October 1998, not yet ratified) in the following provisions: Article 2 (non-discrimination on the basis of political and religious opinion, ethnicity or similar grounds), Article 4 (exclusion of the right to freedom of thought, conscience and religion from the scope of rights that States Parties may derogate from in times of national emergency), Article 7 (freedom from torture), Article 9 (ban on arbitrary arrest or detention), Article 12 (no restriction allowed on key rights except as necessary to protect national security, public order, public health or morals or the rights and freedoms of others), Article 14 (right to a fair and impartial trial), Article 18 (freedom of thought, conscience and religion), Article 19 (freedom of expression and the right to hold opinions without interference), Article 21 (right of peaceful assembly), Article 22 (freedom of association, including the right to form and join trades unions), and Article 26 (equality before the law and prohibition of discrimination on grounds such as race, color, sex, and political or other opinion).

³⁸ In a major report of 1986 submitted to the U.N.'s Sub-Commission on Prevention of Discrimination and Protection of Minorities, for example, the Sub-Commission's Special Rapporteur stated:

Between 8,000 and 9,000 [black] Africans suffering from mental disorders are detained against their will in privately owned institutions in the Republic of South Africa... There is not a single black psychiatrist in South Africa and vital decisions about thousands of African mental patients are made by part-time physicians who do not even speak the language of the patients... Recent legislative measures of the Government concerning the "rehabilitation" of African pass [law] offenders equate in a dangerous way the non-observance of the apartheid laws with mental disorder... These conditions and policies, being a direct effect of apartheid in the health field, are inimical to the letter and spirit of the Constitution of the World Health Organization... (Erica-Irene A. Daes, Special Rapporteur of the U.N. Sub-Commission on Prevention of Discrimination and Protection of Minorities, Principles, Guidelines and Guarantees for the Protection of Persons Detained on Grounds of Mental Ill-Health or Suffering from Mental Disorder [New York: United Nations Publications, 1986] E/CN.4/Sub.2/1983/17/Rev.1, p.8.)

³⁹ Ibid., p.30.

⁴⁰ Paragraph 5 of Principle 1 reads: "Every person with a mental illness shall have the right to exercise all civil, political, economic, social and cultural rights as recognized in the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights and in other relevant instruments, such as the Declaration on the Rights of Disabled Persons and the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment."

⁴¹ U.N. General Assembly, report of the Third Committee, Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care (New York: United Nations, December 17, 1991), A/46/721. For a wider discussion of the ethical aspects of compulsory psychiatric hospitalization, see Robert Miller, "The Ethics of Involuntary Commitment to Mental Health Treatment," in Sidney Bloch and Paul Chodoff, eds., Psychiatric Ethics (Oxford University Press, 1991) pp.265-289.

⁴² Declaration of Hawaii, 1983, as included in Appendix II of Bloch and Reddaway, Soviet Psychiatric Abuse: The Shadow Over World Psychiatry, pp.237-239.

⁴³ The World Federation for Mental Health (WFMH) adopted the same principle in its January 1989 "Declaration of Human Rights and Mental Health." According to the document's preamble, "Whereas a diagnosis of mental illness by a mental health practitioner shall be in accordance with accepted medical, psychological, scientific and ethical standards...and whereas persons have, nonetheless, been at times and continue to be inappropriately labeled, diagnosed and treated as mentally ill...difficulty in adapting to moral, social, political or other values in itself shall not be considered a mental illness" (from a pamphlet issued by the WFMH, on file with author).

⁴⁴ "WPA Statements and Viewpoints on the Rights and Legal Safeguards of the Mentally Ill," adopted by the WPA General Assembly in Athens, October 17, 1989; in Geneva Initiative on Psychiatry, Human Rights and Professional Responsibilities of Physicians in Documents of International Organizations (Amsterdam and Sofia, 1998), pp.70-71.

⁴⁵ Declaration of Madrid, 1996, as cited in Mental Health Reforms (Journal of the Geneva Initiative on Psychiatry), no.1, pp.8-9 (1997). Among new provisions included in the Madrid Declaration were that "psychiatrists should devise therapeutic interventions that are least restrictive to the freedom of the patient," and that "no treatment should be provided against the patient's will unless withholding the treatment would endanger the life of the patient and/or those who surround him or her."