Analysis Of The Excessive Rights Of The Guardian Of A Person With Mental Illness

Last year, The Mental Health Law of People’s Republic of China was adopted in China and it filled the gaps of national mental health legislation which had existed for more than29years. This law contributed a lot to protecting the rights and interests of persons with illness, while it still had significant deficits. It granted the guardian of the person with mental illness with excessive power during the entire process from involuntary commitment to discharge from hospital. As a result, the guardian is entitled to commit an adult to a mental health hospital against the adult’s will, decide to conduct compulsory hospitalization and treatment on the patient, require the patient to discharge from hospital at any time, refer to and make a copy of all medical records of the patient. However, it didn’t provide adequate judicial intervention to check and supervise the rights of the guardian and psychiatrist doctors. Adequate judicial intervention mainly consists of two aspects. One is that the law did not provide prepositive judicial procedures such as judicial review. The other one is that it failed to provide appropriate procedural accommodations to the person with mental illness, which made the nice provision of "the person with mental illness is entitled to initiate legal proceedings" become dead letters. The psychiatric diagnosis is highly subjective and uncertain inherently, and the psychiatric medication has notable side effects. What is more important, currently, swindling acquaintances is not uncommon in China which has experienced the Cultural Revolution and now is in the period of social transformation, and doctors are likely to collude with the guardian for the sake of economical interests. Within such background, that the law still granted the guardian with excessive power puts the normal adult citizen and the patient with mental illness in danger, that is, their rights of life, health and self-determination can be easily harmed by the guardian, so the "by-psychosis" tragedy will continue and the residual will of the patient with mental illness can not be fully respected. This law has such serious deficit for two reasons. One is that it assumes the guardian to be a "moral person" like a caring and a responsible father and the doctor to be a "moral person" who follows professional morality strictly, while the patient with mental illness to be such a weak person without any ability to reason. As a result, it appears to be supra legal paternalism. The other reason is that those whose interests are directly affected involving psychiatric patients and representatives of organizations guarding the rights of the patients did not participate in the legislation, leading this law to fail to reflect the patients’true appeals and will. The guardian’s excessive rights shall be restricted. It is in conformity with legal theory and international customary practice to let stake-holders participate in legislation and allow justice to intervene in the compulsory treatment procedure. The author of this article suggest that direct stake-holders including psychiatric patients and representatives of organizations guarding the rights of the patients should fully participate in mental health legislation in the future, set prepositive judicial procedures and provide appropriate procedural accommodations to the person with mental illness to effectively check and supervise the guardian’s rights.