On The Legal System Of Administrative Involuntary Compulsory Treatment For Mental Patient In China

Psychosis, a kind of disease resulting from the dysfunction of thalamus and brain, usually affects the patients’ cognitive ability and self-control ability and bring harm to others and the patients themselves. In China, there are more than100million psychiatric patients with various types of mental illness, of which about1.6million are seriously ill. Those with the severe mental diseases should be promptly hospitalized, once they are found to be potentially or actually dangerous. Hospitalization of psychiatric patients is usually based on voluntary principle. However, a compulsory treatment should be implemented when the patient is dangerous to others’ personal fatalness and unwilling to be hospitalized, and hence a national administrative system of compulsory treatment should be established to ensure the implementation. Administrative compulsory treatment of mental patients refers to the executive authorities’ specific administrative act of violating the spirit of the patients’ will and forcibly sending the patients, who are seriously ill so as to be hospitalized or probably/already dangerous to themselves or/and others, to psychiatric institutions for treatment according to the relevant legal proceedings, on the case that the guardians are unable to perform their guardianship or disagree with compulsory treatment. The system of administrative compulsory treatment of mental patients has a real significance in protecting the human rights of psychiatric patients. This system is based on the theory of human rights, the theory of national parens patriae and the theory of national police power, and the basic principles of the system include the principle of legality, the principle of proportionality, the principle of combining compulsory treatment and treatment, the principle of due legal process, and the principle of the right to relief.Since1980’s China has attached importance to administrative compulsory treatment system for the mental patients. However, there was no concept of this system until1990’s. There was no systemic regulation about administrative compulsory treatment system at that time in China; many normative documents (including local regulations and administrative regulations) established the administrative compulsory treatment system for the mental patients. The Mental Health Act was enacted in2012, which established administrative compulsory treatment system for the mental patients, including the substantive conditions, procedure, rights protection, relief means, and so on. Although an administrative compulsory treatment system for the mental patients has been initially established in China, there still exist some serious problems in its design and implementation. Many expressions are unscientific about the applicable conditions to, and the illness standards, dangerousness standards, compulsoriness standards of administrative compulsory treatment of mental patients; there are a lot of deficiencies in the designed procedure from the application, hospitalization, diagnosis, decision, treatment, discharge, to follow-up treatment and relief, and the system of legal liability pursuing. In practice, the cases are quite frequent that the basic human rights of mental patients are infringed.In order to improve the administrative system of compulsory treatment of mental patients, the following measures should be put into practice: the scientific pathological conditions, necessity conditions and willingness conditions should be set to protect mental patients’ substantive rights such as the right to freedom, right to information, right to be visited, right to privacy and property right during their administrative compulsory treatment. Third, the procedures of administrative compulsory treatment such as application, acceptance, diagnosis, decision and discharge should be improved; the system of letters and calls, the system of administrative reconsideration, the system of administrative compensation， the system of administrative litigation，mechanism of Investigating and Fixing the Liability also should be improved.