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
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.
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."
· 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.
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.
The WPA statement continued,
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.
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."
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:
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."