| The "Mental Health Law of the People’s Republic of China", which was officially adopted at the end of 2012,has been implemented for three years. It has made a great contribution to the maintenance of mental patients’ rights, whereas it has lots of flaws in the aspect of mental patients’ guardianship. The flaws are mainly manifested in six aspects, namely the abusement of guardians’ rights to forcibly send mental patients to the hospital for diagnosis, the absence of the bottom line of guardians’ rights to know, the lack of effective supervision of the guardianship, the lack of dispute resolution mechanisms of guardians’ identity conflict, the lack of restraint of authority of mental patients’ treatment and the lack of operation of guardians’ legal responsibility regulation. The flaws of the "Mental Health Law of the People’s Republic of China",as an inevitable outcome of the balance of different parties, was due to the influence of the traditional law regulation, the misplacement of legislation, the keen dependency of mental patients’ families. All the reasons determine that the rights of mental patients’ guardians are irreplaceable and the legal protection procedure of mental patients is inseparable to the guardians. However, the existing situation will make mental patients’civil rights hard to be protected, and the institutional discrimination, which deprives mental patients’ self-determination, will block the perfection of the legal remedy of mental patients. The suggestion is made that in the future legislation and practice,more attention should be paid to the reasonable regulation of the guardianship under judicial power, to the establishment of supervisory organization of guardianship, to the provision of a wide range of judicial convenience, to the regulation of the guardianship of mental patients’ compulsory treatment, to the operation of refining guardians’ responsibility, to the learning and using of foreign mature experience. |
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