Reconsidering the Danger Criterion in China’s Mental Health Law: From an Ethical Perspective

1. History of the Danger Criterion in China

The high prevalence of mental illness and the insurmountable demand for, but extreme scarcity of, mental health resources in China are well documented. It is estimated that more than 100 million people in China have mental illness, and about 16 million of these have severe mental illnesses with an annual incidence rate of 13%. With the lack of insurance coverage and severe scarcity of mental health facilities, it is estimated that at least 56 million people with various mental disorders have never received any treatment. Over 70% of patients with severe and persistent mental illness and particularly about 90% of patients with schizophrenia receive no professional care at all.¹

Severely ill psychiatric patients are one of the most vulnerable populations in Chinese society. Not only are the vast majority of them living under the poverty line in extremely poor living conditions, they also suffer from serious social stigma and discrimination.² In China, people with psychosis are routinely described as dangerous in newspaper stories and health policy documents related to severe mental illness. Their alleged threat to society has always been the leading concern of the state and the healthcare system.³ As evident in the involuntary admission criterion for mentally disordered patients in the clinical practice of the past 60 years, safeguarding of public security and social order have been emphasised rather than a patient’s basic rights.

In 1955, due to "the impairment of public security by mentally disordered patients", the State Council (of the Chinese central government) instructed "imperative supervision of the admission of mentally disordered patients" and required all provinces to establish institutions for mentally disordered patients and "severely mentally disordered patients with historic, frequent episodes who often hit or curse others and severely impair public security and who are unable to be cared for by their families should be committed".⁴

In the late 1960s, Mao Zedong outlawed the psychiatry practice during the Cultural Revolution and many mentally ill patients were taken from hospitals and sent to labour camps. Their illnesses were attributed to a lack of appreciation for the class struggle and they were labelled as "counter-revolutionaries".⁵

An absence of a set of national guidelines on psychiatric admission suggests that the basis for diagnosing and imposing treatment is unclear, and does not safeguard the interests of mental health patients. People, who were suspected of having psychiatric disorders, have often been compulsorily admitted to psychiatric hospitals via consent forms signed by families or relatives. Homeless people, suspected of having psychiatric disorders, were often certified and sent for psychiatric treatment by the local civil department and public security departments.⁶

To improve mental health services within these different systems and to protect the rights of mentally ill persons, a committee of five senior psychiatrists started the drafting of the Chinese mental health law, in 1985.⁷ However, it was not until November 2012 that the first national mental health law was officially released after 30 revisions. In the 28-year progress of the legislation, the biggest controversy centred on the criterion for the involuntary admission of severely mentally disabled patients.⁸

In the draft of the mental health law issued by the National People’s Congress⁹ in 2011, it states that: "imminent or current behavior that endangers public security and disturbs public order" are regarded as the criterion for involuntary admission. However, as "disturbing the public order" is not clearly defined, the risk of abusing patients with suspected mental disorders by institutionalising them without due cause increased. This provision met with fierce criticism from the legal, ethical, and psychiatric community.¹⁰ As a result, this criterion was removed in the updated draft law.

In 2012, the Mental Health Law was officially promulgated by the National People’s Congress. The criterion of "having severe mental disorder" and "danger" (including danger to oneself and danger to others) was established, and "danger" has been defined in Article 30 as:

If the result of the psychiatric evaluation indicates that a person has a severe mental disorder, the...