China Intends To Legislate Against Mental Illness &Nbsp, And The Responsible Person Will Bear Criminal Responsibility.

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Due to lack of legal norms, in recent years has repeatedly exposed the "mental illness" incident, should not be admitted to the individual due to various mental illness reasons, was sent to a psychiatric hospital for isolation treatment, the parties encountered complaints difficult, complaints difficult, difficult to discharge.

Yesterday, the Legislative Affairs Office of the State Council issued the mental health law (Draft) to solicit opinions from all walks of life. The draft made the first comprehensive stipulation on involuntary hospitalization.

If a mental patient is admitted to a mental hospital intentionally, he will bear criminal responsibility and civil liability.

The assessment results indicate that patients do not need to continue hospitalization, and patients or guardians can handle discharge procedures according to law.

Diagnosis of focus

It is forbidden to force others to examine mental illness.

[draft] in view of the general concern of the society about "mental illness" and compulsory admission, the draft is clear that the diagnosis of mental disorders should not be based on the causes of mental health. The diagnosis of mental disorders should be made by psychiatric practitioners. In addition to other provisions of the law, no one should be forced to make physical examinations to determine whether they suffer from mental disorders.

The draft also clearly stipulates the conditions for the application of involuntary inpatient medical measures: only those with mental disorders can not identify or control their own behavior, and they can harm themselves, endanger public safety or personal safety, and disrupt public order.

[interpretation] the treatment of patients with mental disorders may involve all kinds of problems, such as compulsory medical treatment, personal freedom and reputation reduction, all of which are closely related to the basic rights and freedoms and dignity of human beings.

"But in real life, some people who have ulterior motives may force their relatives or others into a mental hospital, and mental hospitals may randomly diagnose and treat them in pursuit of economic interests, which increases the risk of compulsory treatment for normal people."

Cheng Bin, a lawyer at Guan Dao law office in Beijing, said: "without strict procedures, people can be sent to a mental hospital, which will become a medical reason for the loss of personal freedom of citizens."

Yang Fude, director of Beijing Hui Long Guan Hospital, said that involuntary hospitalization was included in the draft and became one of its key contents. It is indeed related to the current incidents of illegal treatment of non acute patients in psychiatric hospitals. It will rise to a legal level and will effectively reduce or eliminate such cases.

[case] a multimillionaire was sent to a mental hospital by his wife.

In December 20, 2005, He Jinrong, a multimillionaire in Guangzhou, was forced to be admitted to a mental hospital after his family conflicts and his wife clashed.

After discharge, He Jinrong hospitalized the Guangzhou brain hospital on the grounds of the hospital's admission of infringement of reputation right, claiming 1 million yuan.

The forensic identification center of the Chinese forensic society identified He Jinrong's mental state.

Correction of focus

Objection may be requested by the parties concerned.

[draft] strictly regulate the applicable procedures of involuntary inpatient medical system, including special requirements such as the time of diagnosis, the number of doctors diagnosed, and emphasize that the diagnosis of mental disorders should be made by psychiatric practitioners.

At the same time, it provides sufficient objection procedure for the parties and their guardians.

If the parties or their guardians have objections to the conclusion of the involuntary hospitalization medical treatment, they may choose a medical institution with a legitimate qualification to conduct a re visit; if there is any objection to the conclusion of the re examination, they may independently entrust a mental disorder judicial authentication institution that has obtained the qualification according to law to conduct the appraisal.

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The correction mechanism after admission is stipulated.

For involuntary inpatients, medical institutions should organize psychiatric practitioners to conduct regular examinations and assessments, and county health administrative departments should conduct regular inspections.

[interpretation] Huang Xuetao, the author of the legal analysis report on China's psychiatric treatment system, said that this free choice is very progressive.

But in fact, the right of personal freedom of involuntary treatment is given to doctors. Doctors do not have the judgement of legal judgment or social ethics, and forced treatment should be judicial judgment.

We must pass the judicial process. Judges should have the right to decide whether to be hospitalized or not. The diagnosis of psychiatrists can serve as an important reference for judges' decisions.

[case] Xu Wu flies over the insane asylum.

In 2006, Xu Wu, a staff member of Wuhan Iron and Steel Group, was sent to the psychiatric department of Wuhan Iron and steel two hospital for treatment. In April 19, 2011, Xu Wu escaped from the hospital and went to Guangzhou to "clean up" for himself.

The police and the factory staff brought Xu Wu back from Guangzhou to the two hospital of WISCO to continue hospitalization.

After Xu Wu discharged.

People's Daily recently commented on the many doubts about the "Xu Wu incident". On the one hand, it shows that the work of relevant departments needs to be improved, and it also reflects the blank of mental health legislation in China.

Accountability of focus

People liable for mental illness should pursue criminal responsibility.

[draft] clear tort liability.

The draft stipulates that anyone who violates the will of others to determine whether he or she has mental health examinations and intentionally sends mental patients with mental disorders to medical institutions should bear criminal responsibility and civil liability according to law.

Medical institutions should be diagnosed as mental disorders on the basis of mental health status, and patients with mental disorders diagnosed as mental disorders by intention or negligence. The relevant responsible persons will be subject to administrative penalties such as suspending practice activities, expulsion and revocation of practice certificates. If a crime is constituted, they will be investigated for criminal responsibility according to law.

Where a false identification report is issued by an appraisal institution or an appraiser, it will be subject to administrative punishment for cancellation of registration; a judicial expert who is penalized for intentional crime or duty negligent crime and is revoked by the judicial administrative department shall not be engaged in judicial expertise for life.

[interpretation] some experts say that in recent years, the use of psychiatric diagnosis without definite quantitative criteria, the subjective initiative of doctors, the particularity of mental hospitals and other reasons, the illegal treatment of non acute mental patients admitted to hospital, family conflicts, economic disputes, conflicts with local governments, and so on, have been sent to mental hospitals and other cases and reports have aroused great concern from all walks of life.

This seriously violates the rights of the parties and causes the intensification of social contradictions.

"Mental illness" is often deprived of personal freedom, accountability of criminal responsibility and criminal law convergence, strengthen the deterrent against offenders, to avoid causing serious consequences.

[case] Xu Lindong was shut down for more than 6 years.

In October 2003, Xu Lindong, a Henan Luohe man, was sent to Zhumadian mental hospital by the relevant party members of the township party committee of Luohe Town, Yancheng county.

In April 25, 2010, Xu Lindong was taken home from a psychiatric hospital in Luohe by relatives.

Subsequently, 4 persons responsible for the Xu Lindong incident were removed from office.

According to the investigation, 3 of them were suspected of abuse of authority and fraud, and forged the relevant proofs of Xu Lindong's admission to mental hospitals.

Dialogue. Wang Xixin, vice president of Peking University Law School

National legislative norms "

JINGWAH times: drafting the mental health law for many years, why has all walks of life been highly concerned?

Wang Xixin: mental patients are a relatively large social group.

We hope that on the one hand, we need to treat those mental patients who really need treatment, but on the other hand, we must prevent some people from forcefully diagnosing and treating so-called mental patients based on other purposes, that is, what we call "mental illness".

Therefore, we have been calling for the introduction of laws at the national level.

JINGWAH times: can local regulations fail to solve the problem?

Wang Xixin: there are laws and regulations in some places, but this kind of legalization efforts sometimes encounter an awkward reality. In the diagnosis and treatment of mental illness, all of them involve compulsory admission. If you don't want to, you may be forced to treat you. This forced treatment is a compulsory measure.

The legislative power of coercive measures can only be stipulated by law in terms of the provisions of the legislative law. That is to say, in the strict sense of the local regulations, there may be an illegality, so this is the embarrassment we encountered here.

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JINGWAH times: where is the key to mental health law?

Wang Xixin: the first problem is diagnosis.

What is it called?

Another problem is the question of forced treatment of mental patients, and which subjects have the right to give people to force treatment. Many of the existing laws are not clear, some are public security organs and guardians, but this involves the issue of civil law, that is, if a person is diagnosed as a mental patient, he is a person without civil capacity, that is, he can not make a decision, then who will help him to make a decision is his guardian.

Some guardians are not to protect the interests of the guardians. Some may be retaliation. How to set this procedure is also a problem to be solved by mental health law.

From the current draft, we have responded to these problems. The specific system design also needs to be discussed and studied during the period of soliciting opinions.

JINGWAH times: does this reflect that mental health may also be a social problem?

Wang Xixin: Yes, so there is a very important point in this law that is to protect the basic rights of citizens.

From the legal point of view, there are two cores.

The first is the conditions for the delivery. The draft has made some progress, clearly stipulates the conditions for the application of involuntary medical measures. If there is no obvious real violence, it will not necessarily be forced to be admitted.

However, this condition still needs to be clear. For example, we are worried that this person will have consequences, which of course can not constitute a reason. If this can be a reason, everyone can say that there may be harmful consequences. This standard is subjectivism, so we have to go back to the rule of law.

Then, we must have a clear idea of who and what subjects can force the treatment according to what kind of standard, that is, we must have realistic harm consequences.

Secondly, it is the program design of psychosis diagnosis, and how the procedure is very reasonable.

Because in practice, the rights of experts are very difficult to be controlled through procedures. Therefore, the prevention of abuse of rights is the key.

Draft summary

The mental health law (Draft) consists of seven chapters and seventy-five articles, which are divided into general principles, prevention of mental disorders, diagnosis and treatment of mental disorders, rehabilitation of mental disorders, safeguard measures, legal liabilities and supplementary provisions.

The draft provides for the protection of the rights and interests of patients with mental disorders, the prevention and rehabilitation system for mental disorders, and the involuntary hospitalization system for mentally ill patients.

The draft clearly stipulates that the basic rights of citizens in the constitution stipulated by the constitution, such as the dignity and personal safety of patients with mental disorders, are not infringed. Legitimate rights and interests such as education, labor, medical treatment, privacy, material assistance from the state and society are protected by law.

The draft stipulates that

In order to solve the outstanding problems in a targeted way, the draft has made a comprehensive provision for the involuntary inpatient medical system, and has set strict legal responsibilities for the illegal implementation of involuntary medical measures.

Expert opinion

The definition of public order is vague.

Huang Xuetao: in terms of the applicable conditions of involuntary inpatient medical measures, there are loopholes in the "danger of disturbing public order" expressed in physical standards.

The definition of "public order" is very broad and vague. Like falsely accused leaders, whether it is disturbing order or not, is it forced to be treated? Putting public order on top of it, in fact, provides legitimacy for such forced treatment.

Mandatory treatment requires detailed rules.

Huang Xuetao: the draft stipulates that "patients with suspected mental disorders who violate the criminal law shall be dealt with according to the provisions of the relevant laws. If the government needs compulsory medical treatment, the public security organs shall carry out them."

No progress has been made.

For patients with suspected mental disorders who violate the criminal law, there is no objection right, and the objection procedure should be perfected.

This is very important because power is easily abused. Forensic experts in psychiatric expertise master the right to life and death, and the parties have no opportunity to disagree. Finally, they are deprived of the right of a party to be judged according to a medical standard.

Maybe this specific method has not been written out, it will be drawn up by the Ministry of public security and the Ministry of health, but there are lots of loopholes in it. If it is not perfected, many people can be sent to the police for compulsory treatment without judicial procedures.