Posts tagged: Jeremy Daum

Project Unlock – What’s Up with Caging the Mentally Ill in China?

By , July 24, 2013

Over at the new blog – China Law Translate – Jeremy Daum has translated two recent mainland articles about individuals with mental illness and the impact of China’ new Mental Health Law (articles are here and here). 

On October 26, 2012, after working on a draft law for close to 27 years, China finally passed its first Mental Health Law; that law took effect on May 1, 2013.  Unfortunately, much of the focus of the foreign press about the new law has largely been on the changes to involuntary commitment and whether those changes will reduce the threat that political dissidents  will be wrongfully and involuntarily committed.  What’s been less of a focus has been the law’s impact on its actual target audience: those with diminished mental capacity. 

And that’s why Daum’s two translations – both recently published articles from the Chinese pres s – are interesting.  Both focus on the plight of the mentally ill.  Both examine the all too prevalent practice of caging severely mentally ill individuals. 

The pictures that accompany the articles – photos of individuals chained and in cages, some of whom are stark naked – are shocking to say the least.  And it would be easy to conclude that this reflects the callousness of a culture toward the mentally ill.  But nothing could be further from the truth – if anything, the caging of these individuals is a result of the dire situation of mental health care in China, especially in the rural areas. 

In “Cage People,” the Chinese reporter estimates that in Hebei Province alone 100,000 severely mentally ill individuals (usually considered people with schizophrenia, bi-polar disorder, etc.) are kept in cages as their only form of treatment.  Although the reporter gives no citation for this number (thus use this number with caution), the use of restraints and cages has been well documented in other sources.  In a 2011 World Psychiatry article entitled Mental Health System in China: History, Recent Service Reform and Future Challenges which examined China’s first experimental national mental health program – known as 686 Program and adopted in 2004 – the authors note the need for the program to include support for unlocking and freeing mentally ill individuals and finding treatment for them.

Lack of Mental Health Professionals

More than anything, this caging is a last resort in a system that has provided little financial support and few specialists in mental health.  China estimates that over 100 million people suffer from some form of mental illness; 16 million of those suffer from severe mental illness.  According to Mental Health System in China, China only has 16,103 licensed psychiatrists and 24,793 licensed psychiatric nurses;  in other words, 1.24 licensed psychiatrists for every 100,000 people and 1.91 licensed psychiatric nurses for every 100,000 people.  China is far below the  global average, where there are 4.15 psychiatrists and 12.97 psychiatric nurses per 100,000 people.  Id.  As a result, it’s not surprising that 91.8% of all the mentally ill in China never seek help.  For those with severe mental illness, 27.6% never receive any type of help and 12.0% of the severely mentally ill only visited non-mental health professionals.  Id.  

Social workers, who are key in a community-based mental health care system, are few in China.  However, China is rapidly expanding its program, with the goal of training 3 million social workers by 2020.  See Renne C. Lee, UH Aids China in the Developing Social Work Profession, Houston Chronicle (Mar. 4, 2013).

Disparities between Urban and Rural Life in China – extends to mental health care

Disparity Between Rural and Urban Areas

But what makes that shortage even worse is that since the economic reforms, there has been a brain drain from the rural clinics to more profitable hospitals in the urban areas.  See Yanzhong Huang, The Sick Man of Asia, Foreign Affairs (November/December 2011).  Even though the Chinese government has recognized the need to institute a community-based care model for mental illness, where patients are not all hospitalized but instead are treated while remaining in the community, the Chinese government still expends much of its resources on psychiatric hospitals.  See Mental Health System in China.  This inherently means that money will flow to the urban areas. 

Lack of Adequate Insurance and Funding to Rural Health Care Services

Finally, even with the reforms of health care funding, especially in the rural areas, mental health care is still too expensive for many Chinese.  According to WHO, only 2.35% of China’s total health budget is spent on mental health (in the U.S. 5.6% of the national health care spending is on mental health – see Washington Post article);  as of 2011, less than 15% of China’s population had insurance which covered mental health (although 45% of US mental health patients cite cost as a major burden).  See Mental Health System in China. 

Due to these factors, many severely mentally ill in the rural areas have only their families to take care of them.  With little to no treatment, these families sit by while their relatives’ illness only gets worse.  As a last resort, these families resort to restraints, not because they want to but because they have no choice. 

Does the Mental Health Law Change the Current Situation?

Chapter IV of the Mental Health Law- “Rehabilitation from Mental Disorders” – creates a community based model of care which should limit

All for One, One for All – Community Based Mental Health Services

hospitalization to only necessary situations.  This type of model allows those with diminished capacity to be integrated into society and is in line with China’s commitments under the Convention on the Rights of Persons with Disabilities (which China has ratified and the U.S. still has not).  Rural and village governments are required to assist those families obtain the services they need.  This assistance includes financial assistance. 

Unfortunately, the law leaves the funding of what could be a useful framework to the local areas.  For already impoverished villages, they just don’t have the resources to carry out their responsibilities.  As Daum’s translation of “The Need to Promote the Mental Health Law” demonstrates, even when families apply for their legal mandated “Minimum Subsistence Allowances,” the local fund is often inadequate and does not enable them to seek the medical help their relative needs; there will still be out of pocket costs that are too high for many villagers.   

As Huang Xuetao, a lawyer at the Equal Justice Initiative, noted in the article, the hopeful prospects of the Mental Health Law are diminished by three things: (1) the lack of education to the people about the protections of the new law; (2) the lack of funding for mental health care and (3) the government’s  lack of attention to the matter. 

Until those factors change, especially the last two, China’s Mental Health Law will not achieve its objectives.  However, these frank articles in the Chinese press – soon after the Mental Health Law took effect – might be a positive sign that change is on the way. 

China Passes Mental Health Law, Creating More Problems Than Solving Them

By , December 11, 2012

Don’t think that we missed this one.  China Law & Policy just hasn’t had the chance to write about it.  At any rate, after 25 years of discussion, and two rounds of very vocal public comments in the past year, on October 26, 2012, the Standing Committee of the National People’s Congress finally passed its Mental Health Law (“MHL”).

Jeremy Daum, a research fellow at the Yale-China Law Center, shared with China Law & Policy a draft English translation of the new Mental Health Law.  Although an official translation has since become available at China Law Info, a subscription is required to view the translation.  As many readers may lack a subscription, with Daum’s permission, China Law & Policy is sharing his early draft translation.*  You can find a PDF of his translation by clicking here..

One of the major improvements to the law since earlier drafts is the removal of the provision that specifically permitted involuntary commitment if the individual’s behavior was deemed to be “disturbing public order” or “endangering public safety” (see interview with Prof. Michael Perlin about this issue here).  Earlier drafts which included that clause were vigorously attacked by both Chinese and foreign experts noting that such a provision would give carte blanche to the police to involuntarily commit anyone who expressed a dissenting view.  As Chinese Human Rights Defenders (“CHRD”) highlighted in its seminal report on China’s mental hospitals, The Darkest Corners: Abuses of Involuntary Psychiatric Commitment in China, some of China’s many mental hospital “patients” are in fact dissidents who were involuntarily committed outside of any court process for expressing their dissenting views.

Deletion of this provision is certainly a step forward there are still aspects of the adopted law that make it far less than ideal and demonstrates the continued need for better protections for the mentally ill in China.

Family members are still able to commit an individual against his or her will

In addition to voluntary commitment, Article 28 of the Mental Health Law still permits family members to involuntarily commit an individual that the family member suspects has a mental illness.  In effect, the Mental Health Law places the family in a separate sphere that assumes that family will not abuse the process.

But if the goal of the Mental Health Law is to “protect the lawful rights and interests of those with mental disorders” (MHL, Art. 1) and to integrate those with mental disorders into society, then allowing family members to involuntarily commit individuals runs against these goals by putting those with mental illness or disorders at the mercy of their family.  This also runs counter to the Convention on the Rights of Persons with Disabilities (CRPD) which requires that the rights of those with mental disabilities be on equal footing with the rest of society (see CRPD, Article 3(a)).  China has signed and ratified the CRPD but the new Mental Health Law is not in keeping with many of the CRPD’s provisions let alone its spirit.

No Court Oversight of the Commitment Process

International human rights law, which the CRPD adopts repeatedly through reference, is clear that any decision to deprive one’s liberty, including on health grounds, is challengeable before a court or other judicial body (see United Nations Commission on Human Rights, Report of the Working Group on Arbitrary Detention (Dec. 2005) Para 63-66).

China’s current Mental Health Law creates a system for involuntary commitment that is completely devoid of any court oversight.  When an individual appears at a mental hospital – either voluntarily, brought by a family member, or in the case of homeless individuals, by the police (MHL, Art. 28) – he or she is examined by one of the hospital’s psychiatrists.  If the psychiatrist determines that the individual suffers from a severe mental illness and that he or she demonstrates either harm to him or herself or harm to others, then involuntary commitment is required (MHL, Art. 30 – the law here uses “应当” which has the same effect of the use of the word “shall” in English laws, making involuntary commitment mandatory if the facts apply).

There is no provision to challenge the hospital psychiatrist’s diagnosis in a court of law or even before an independent arbitrator.  Instead, if the individual or its guardian disagrees with the initial assessment, he or she can request that the hospital provide a different psychiatrist to do an second assessment or go to another mental hospital to request a second opinion (MHL, Art. 32).  It is questionable if another doctor in the same hospital will be a true independent opinion or if he or she will just agree with his colleagues.

Similarly, even if the patient or his family requests an evaluation from another mental hospital, (1) under the Mental Health Law, there is no obligation that this hospital do the assessment and (2) it is not clear that the doctors in that hospital will be any more independent.  These doctors will still be state employees and colleagues of the original doctors.

If after the second opinion, the patient or his family still disagrees with the assessment, it is only at that point that he or she can go outside of the system and hire an independent psychiatrist of his or her choosing (MHL, Art. 32, ¶3).  However, the law makes no mention as to what to do if this third opinion disagrees with the two opinions provided by the state.  Article 35 of the Mental Health Law forbids involuntary commitment where the second opinion disagrees with the first, but makes no mention of what to do with the third opinion.  Without court involvement, presumably it will not be sufficient to overturn the prior opinions and free the individual.

Guardians Are Too Easily Appointed and Too Difficult to Remove

The Mental Health Law provides a tremendous amount of power an individual’s guardian but provides no method for how that guardian should be appointed.  Instead, it is necessary to look to the General Principles of Civil Law which discusses guardianship for individuals with mental illness.

Unfortunately, the General Principles does little to flesh out the appointment process.  Instead, it makes clear the level of abuse that can occur.  Article 13 of the General Principles requires the appointment of an agent ad litem (a guardian) for mentally ill individuals who are “unable to account for his own conduct.”  But the law does not flesh out what “account for his own conduct means.”  Some individuals with mental illness may still be able to lead a relatively normal life and just need help in certain aspects.  But the General Principles is much more black and white; much more all-or-nothing and do not allow for that gray area that provides for some independence for an individual with slight assistance from a guardian.

Additionally, the General Principles provides no formal or independent process by which a guardian is appointed.  Instead, it appears that basically, if a person wants to be a family member’s guardian, she can just declare herself as such (Article 17 of the General Principles pretty much limits guardians to family members although there is a provision for a work unit member).  Based on the General Principles, the process for guardianship in China is not an appointment process but rather a declaration one.

Article 17 of the General Principles does contemplate a court action where the individual or someone else might disagree with the declaration of guardianship.  But it would be better to involve the court at the initial stage and require it to review guardianship decision to give the relationship any legal effect.  In fact, the Article 12(4) of the CRPD requires such a process – that an impartial authority or judicial body review all decisions to limit an individual’s legal capacity, such as the appointment of a guardian.  Without judicial oversight of the guardianship process, the process is subject to abuse and the individual with mental illness is again denied his ability to function equally in society with others.

Conclusion

In reality, the Mental Health Law does little to foster an environment where those with mental illness can lead an independent life and be accepted by society.   Furthermore, although the law discusses the very real (and dire) need to increase the number of mental health professionals in China, that has remained aspirational.  As of yet, the Chinese government has remained silent on how much money and what incentives it will provide to achieve that goal.  Providing adequate and sufficient medical assistance for those suffering from mental illness is just as important to making sure that those individuals will be able to lead a full life.

**********************************************************************************************************************************

* Jeremy Daum drafted this translation within days of the Mental Health Law’s promulgation.  It wasn’t until now that China Law & Policy had the chance to publish this translation.

Use of China’s Exclusionary Rule & Its Potential Impact on Upcoming CPL Adoption

By , October 10, 2011

Over at the US-Asia Law Institute’s blog, research fellow, Jeremy Daum has just published a thought provoking article on the Zhang Guoxi case, the first case to publicly – and perhaps most effectively – use China’s exclusionary rule to exclude evidence that was obtained through torture.

In June 2010, China surprised the world by issuing detailed rules on the use of evidence obtained through torture, essentially excluding it as the basis of conviction when the prosecutor could not show that the evidence was obtained legally and without torture.  China Law & Policy blogged about these new rules here and here.

On paper, the new rules provided hope that the police would reign in their ardent use of torture as a means to obtain a conviction.  But in practice, it appeared that the courts, the enforcers of the new exclusionary rules, had little institutional power to control the more powerful police and prosecutor’s offices.  This fear appeared to be realized when the Supreme People’s Court, a few weeks after the Rules’ adoption, chose not to apply them to overturn a death sentence that appeared to be based on a confession obtained through torture.

But as Daum describes below, a trial court in Ningbo has done what scholars thought was impossible – use the exclusionary rules to deny the use of a suspect’s confession where the prosecutor was unable to, or more aptly was too arrogant to provide evidence that the confession was obtained legally.

The Ningbo trial court did not just stop there.  Instead, the trial court issued a clear and transparent opinion on its decision, reflecting its reliance on the letter of the law concerning the new exclusionary rules. As Daum notes below, in China such an opinion from a trial court is rare making Daum wonder, what impact will the appellate court’s decision (the decision has now been appealed to the intermediary court), and the public’s response, have on the Chinese government’s impending adoption of an amended Criminal Procedure Law (“CPL”).

Below is an excerpt of Daum’s interesting article with a link to the full version.

 

Zhang Guoxi Case: a simple case of bribery?

Excluded : The Zhang Guoxi Case

By Jeremy Daum
Research Fellow, US-Asia Law Institute, NYU Law School

Normally, ‘dog bites man’ is not news, but in the generally bleak climate for reform that pervades China’s criminal justice system, a story of “judge upholds law” has gained some traction in the Chinese media. As Chinese and foreign experts scrambled to absorb new draft revisions to China’s Criminal Procedure Law (CPL) in time to offer their opinions during the single month allotted for public comment, another less publicized story was also making waves in the legal community. A trial court in Ningbo has been hailed as the first to give full force to rules on the exclusion of illegally gathered evidence jointly introduced slightly over a year ago by China’s Supreme People’s Court, Supreme People’s Procuratorate, Ministry of Justice and top law enforcement agencies (“the Rules”), by excluding a confession and allowing a defendant to go unpunished…

…The case itself is remarkable only in its mundanity.  It is an ordinary bribery case in which Zhang Guoxi (章国锡), an official from a local construction administration project, was accused of abusing his office to accept seventy-six thousand yuan (about $12,000 U.S.) in graft over four years. The mistreatment that Zhang allegedly received at the hands of interrogators is also not the sort of blood-curdling horror story that “shocks the conscience” or that one might expect would provoke a judge to take a stance against his investigative and prosecutorial colleagues, risking his career and reputation….

….What is exceptional about the case is instead the trial court’s insistence that prosecutors and investigators follow both the spirit and the letter of the law.

Read the full article here.

Panorama Theme by Themocracy

%d bloggers like this: