Once an adult citizen enters a psychiatric hospital, he becomes a person who can be ignored. A client and friend I am so familiar with was suddenly pushed into a state of “incapable of civil conduct”. She said she didn’t count anything.
What happened to Zou Yijun made me feel very angry and terrified at the time. In the mental hospital, my tears flowed down. It was this sentiment at the time that allowed me to continue working in this field for 15 years until now.
Hello, everyone. My name is Huang Xuetao. I am a lawyer and I have been paying attention to the field of mental illness.
I am not a psychiatrist, nor a mental patient. Why would I intervene in this field?
I used to be a non-litigation-type civil and commercial law lawyer, most of the time I did work such as drafting contracts and drafting articles of association. In this process, I very much respect the principles of autonomy of will and freedom of contract in the civil law -these principles have high aesthetic value to me. So I especially enjoy my work.
Until I encountered a case, it made me leave the field of civil and commercial law and began to pay attention to the issue of mental illness-this is actually back to the more basic place of civil law.
Starting point: Zou Yijun case
In 2006, I worked as a legal consultant in a monastery and met a believer in the monastery. Her name is Zou Yijun. During that time, she had a lot of conflicts with her family, and she was also very worried that she might lose her personal freedom. Faced with this risk, I asked her to write a power of attorney. About two weeks later, at noon one day, I received a call from Zou Yijun. She said that she was taken to a psychiatric hospital by her brother and asked me to hurry to rescue her.
That night, I took her pre-written power of attorney and rushed from Shenzhen to Guangzhou to find her. For three days in a row, I have been nailed. The reason the doctor refused me was not that Zou Yijun did not want to see me, nor that the signature was false, but that “her mother did not allow us to meet.”
This is clearly the power of attorney Zou Yijun gave me. Why don’t you ask if Zou Yijun would like to see me?
But at that time, once an adult citizen enters a psychiatric hospital, he becomes a person who can be ignored . A few weeks before this, I had a lot of exchanges with Zou Yi. A client and a friend I know so well was suddenly pushed into a state of “incapable of civil conduct”—her mother is her. The guardian, she said nothing.
This situation makes me feel that the autonomy of the will of my clients, the freedom of contract between me and Zou Yijun, and the status of Zou Yijun as a civil subject have been completely denied. This can be said to be “civil dead”, that is, in the civil field, people like Zou Yijun are defined as “non-citizen status” by psychiatrists.
What happened to Zou Yijun made me feel very angry and terrified at the time. In the mental hospital, my tears flowed down.
It was this sentiment at the time that allowed me to continue working in this field for 15 years until now.
As a legal person, the Zou Yijun case made me realize that there is a very scary trap in the field of civil law.
There is a provision in the civil law that our law students will learn when they are in the first grade: “A person who cannot fully recognize and control his own behavior is a person with limited capacity for civil conduct…” Meaning is invalid.”
But this description is very empty. What is meant by “not being able to fully recognize one’s own behavior”? Who has the right to make this judgment?
Regarding this issue, the Civil Procedure Law also stipulates that there are special procedures for an adult to become a person with limited capacity for civil conduct: an application to the court and a declaration by the court.
These are what the law textbooks tell us. Scholars will think that there is no problem, and the regulations are quite good.
But after contacting the Zou Yijun case in 2006, the reality I learned made me feel terrifying. In reality, there are very few cases where the declaration and re-establishment of guardianship are actually carried out through judicial procedures. Many people are immediately defined as incapable of civil conduct as soon as they enter the mental illness system.
The worst thing is that Article 57 of the Civil Procedure Law stipulates: “A person who has no capacity for litigation shall have his guardian as the legal representative for the lawsuit.” In other words, after you have been set up with guardianship, you want to initiate a protest or litigation. All must be raised by your guardian on your behalf—you have no right to raise it yourself.
In other words, once you enter the psychiatric system, your right to sue is not guaranteed, and you cannot speak up for yourself unless you have a good guardian. But if there is a conflict of interest between you and your guardian, there may really not be any chance to come out. At that time, my client Zou Yijun faced such a desperate situation.
So why is there such a trap? What exactly does the law stipulate?
Capacity for civil conduct can be divided into two concepts: one is called capacity for civil rights and the other is called capacity for civil conduct.
Capacity for civil rights defines that everyone from birth to death equally enjoys all the rights provided to you by the law. As long as a child is born, he has the right to inheritance. Just as a minor, you have no right to dispose of the property you inherited. The law stipulates that all citizens have personal freedom, but for a mental patient, you cannot exercise the right of personal freedom. In other words, you have rights, but you have no right to exercise your rights. This is “incapable of civil conduct”.
If your guardian wants to put you in, you can’t exercise your rights. In the case of Zou Yijun in 2006, I knew for the first time that the civil law I had learned had such a cruel reality. And for such a ridiculous thing, there is a more detailed legal basis.
In 2001, the “Shanghai Mental Health Regulations” contained such a clause: “Patients with mental illness should exercise their right to know and make decisions based on their self-knowledge.
What is insight? You know you are sick. The doctor defines you as mentally ill. If you don’t admit it, it means “no self-awareness.” If you are arrested in a psychiatric hospital, you have to defend that you are not ill, you are a person without self-awareness and have no right to exercise your right to know and make decisions.
In 2001, the Ministry of Health issued a red-headed document, in which there was an annex called “Notice of the Ministry of Health on Strengthening the Management of Mental Hospitals”, which listed some “indications for admission”, that is, some standards for admitting people to mental hospitals. One of the criteria is “Those who refuse to receive treatment”-those who refuse to receive treatment can be sent to a mental hospital.
After the Zou Yijun case, I began to understand this field and learned about the existence of these laws and regulations. At that time, I shared these things with my colleagues in the legal profession and found that no one knew. There is such a law, but the legal profession does not know it well.
In addition to the legal basis, there is a theoretical basis for this terrible actual operation.
I also found that a scholar at the level of vice dean of the law school has written many articles to support this approach. He said that the field of psychiatry is the content of biomedicine. We are not restricting his social personality, but a biomedical object. Therefore, the mandatory hospitalization of mental patients should be subject to special medical regulations, not legal norms. .
But how can you separate a person and say that he is a biomedical person, and the law only protects social people? Many legislative theories make me feel very scary.
What’s more frightening is that there are many people who have encountered similarities with Zou Yijun. Prior to this, there have been many similar cases that have been reported by the media, and of course, there have not been many more. Teenagers with internet addiction were imprisoned by their parents, and others were sent to mental hospitals due to family conflicts, conflicts with leaders, petitions, etc.
Want to modify the rules
Many news reports will eventually talk about the need to pass national legislation to regulate these phenomena. Therefore, what I am more concerned about is: what kind of law will be established?
In the Zou Yijun case, I can also say that Shanghai’s mental health legislation is not a legislation passed by the National People’s Congress. You cannot use it to restrict personal freedom, because China’s “Legislative Law” stipulates that legislation restricting personal freedom must It is effective only through the National People’s Congress.
However, once legislation like the “Shanghai Mental Health Regulations” becomes national legislation, I will have nothing to say.
I hope to do something to amend the rules to eliminate these traps and demons in the legislation.
In 2010, I founded an organization called Heng Ping, and released the “Legal Analysis Report on China’s Psychiatric Admission and Treatment System.” From 2011 to 2012, China’s “Mental Health Law” was discussed and reviewed by the National People’s Congress, and the Equity Agency submitted legislative proposals five times. Many of these suggestions were adopted by the National People’s Congress.
One of them is to replace the original “insight standard” with the “risk principle of involuntary hospitalization”. If there is no danger of harm to others, the patient has the right to refuse hospitalization. After all, the law deals with conflicts of rights, and the rights and freedoms of a person should be bounded by the rights and freedoms of others. Insight is a medical term, and risk is a vocabulary that ordinary people can participate in the discussion.
In the draft of the “Mental Health Law”, “the danger of disturbing public order” was also regarded as one of the conditions of “involuntary hospitalization”. Later, we successfully deleted this clause.
Mental patients can also exercise litigation rights , which is also written in the “Mental Health Law.” When there is no prior judicial review, we at least have to leave the possibility of remedy afterwards for the wronged.
Of course, it is not our own credit that our suggestions can be adopted. Both the media and the public’s attention have contributed to this matter.
Another very important reason is that in 2008 the United Nations launched the “Convention on the Rights of Persons with Disabilities.” Article 12 stipulates that all persons with disabilities, including mentally disabled persons, should receive equal recognition before the law. As the first batch of signatories to the convention, China also has the responsibility to implement the spirit of the “Convention on the Rights of Persons with Disabilities” into its domestic legislation.
Sickness does not lead to powerlessness
In the second half of 2012, the “Mental Health Law” was passed, and we hoped to apply this law , so we accepted a case for help from an inpatient mental patient in Shanghai.
This patient is called Xu Wei by the pseudonym. He is a schizophrenic patient. He has lived in a mental hospital for nearly ten years. I once ran away, but was arrested that day. He applied for the change of guardian, but failed.
When Xu Wei was young, he used to work and study in Australia. In the mental hospital, he saw that many people can leave the hospital only if they die-he does not want to repeat this fate himself. He also had a girlfriend in the hospital, and the power of love ignited his passion for life.
These are some fragments of the interview with Xu Wei’s case conducted by CCTV’s news investigation under our coordination.
I really appreciate the willingness of these reporters to try to have a conversation with the mental patients who are hospitalized. You can also see Xu Wei’s communication and expression skills.
We entrusted lawyer Yang Weihua in Shanghai to file a lawsuit against Xu Wei’s mental hospital and his guardian brother on the grounds of infringement of personal freedom. The time of our prosecution was May 6, 2013, the sixth day after the “Mental Health Law” was formally implemented. Therefore, the Xu Wei case is also called “the first case of the Mental Health Law.”
Xu Wei has been detained in a mental hospital for nearly ten years, but as a mental patient, his personal freedom has been confirmed by the Mental Health Law. During the proceedings, we took Xu Wei from the mental hospital to the plaintiff’s bench in the court. However, Xu Wei lost both in the first and second trials.
We felt very frustrated, but Xu Wei was still very insistent on continuing to take action, which moved us very much. In 2017, we won the opportunity for Xu Wei to receive judicial appraisal again.
I called the appraiser at that time, and I asked him: “Did you use pathological standards or legal standards for Xu Wei’s judicial appraisal? He was defined as a person with limited capacity for civil conduct in 2012, and that appraiser clearly used it. The definition of pathology. I did not intervene in that case and did not have the opportunity to protest. If you continue to make the same mistake, I will apply for you to appear in court for cross-examination.”
A few months later, Xu Wei’s appraisal result was that Xu Wei was a person with full capacity for civil conduct-which meant that he could be discharged from the hospital.
Xu Wei’s situation has not changed. He still has some symptoms. What did you mean by saying that he was “incapable of going through the discharge procedures”? Can’t he sign? Can’t he walk? Does he have no money to pay the bill?
neither. Xu Wei possesses all these abilities that can be said. The only flaw in Xu Wei is that he is really sick. Is the sick person necessarily incapable of civil conduct? Must be guarded? It’s definitely not.
We are trying to cut off this crude logic between medicine and rights through the Xu Wei case. Illness should not lead to powerlessness. It does not mean that you are incapable of civil conduct or that you must be guarded.
In most cases, in many people’s minds, the legal capacity of mental patients is questioned and rudely denied. This is the real reason why we pay attention to the topic of mental illness. What we are concerned about is not the medical judgment of this person’s situation, what we are really concerned about is the treatment and punishment of rights.
“Legal capacity” is a term closer to legal philosophy, including: capacity for criminal responsibility ( ability to stand trial, capacity to be punished) , capacity for civil conduct ( ability for contracting, marriage, testamentary capacity) , capacity for litigation ( ability for witnesses) , and capacity for serving sentences / Ability to be punished, sexual self-protection ability (sexual consent ability), etc.
These vocabulary are legal concepts, not medical terms. How can these things be left to the doctor to judge?
Many people have the impression that it is not illegal for a mental patient to kill. Is it really? This involves the concept of “criminal liability”.
There have been some such regulations in the law, which come from an older doctrine. The root is actually the period of the Enlightenment. In order to resist the power of God, people emphasized that people have free will and should have autonomy, rather than being defined by God. And we have to take responsibility and consequences for our choices. So when fighting against theocracy, some theorists have proposed that people are rational people. Then irrational people do not have this kind of autonomy, nor are they qualified to bear such responsibilities. The idea that mental patients are irrational people and do not need to bear criminal responsibility has also developed from this set of logic.
The modern criminal law does have some provisions called “criminal immunity”, which makes many people feel that if a mental patient can be exempt from criminal responsibility, the murder can go unpunished.
Let us put aside this legal term, do mental patients really have no ability to be punished?
no. As long as life can be deprived, freedom can be restricted, and needs can be deducted, he can be punished. “Criminal immunity” is just an artificial regulation in law.
So, is this kind of regulation a kind of favor from the legal circle to the mentally ill group? How does the mentally ill group view the issue of “criminal immunity”?
“Criminal immunity” is a term. In fact, a criminal suspect is defined as “criminal immunity”, which does not mean that there are no consequences. He is not sentenced to punishment, but he may be imprisoned in Ankang Hospital for a long time-detention in Ankang Hospital is not called serving a sentence, it is not called being punished, but being “protected,” but for the parties involved, the same has to be borne Consequences of deprivation of personal freedom.
The term “criminal immunity” has also caused a lot of doubts among the public: Will this thing be abused? Does mental illness become a death-free gold medal?
I don’t understand the attitude of all mentally handicapped people, but some of the mentally handicapped people I have contacted are extremely disgusted with the “criminal immunity” law. They especially hope that these regulations can be repealed.
Because they particularly understand that “criminal immunity” makes the public hostile to them, and they have taken various precautions in advance, which has caused stigma against the mentally handicapped groups.
Many people with mental disabilities who do not have any tendency to violence or have ever had any violent behavior have therefore entered a dehumanizing situation. They have never harmed anyone, just because they were diagnosed as mentally ill, because they will be excused after doing something wrong, and the mainstream society will give these people no chance to make mistakes-their personal freedom, a way of living the same life as normal people. The opportunity was taken away in advance. And many mental patients suffer from life-long isolation.
I would also like to add that the matter of “criminal immunity” is actually changing. In recent years, there have been fewer and fewer judicial expert opinions of “incapable of criminal responsibility”. In recent years, the result of “criminal immunity” has rarely appeared. Forensic experts are already changing.
Among the legal capabilities, there is another thing that attracts much attention is the mental patient’s ability to consent to sex, or the ability to protect themselves. Do mental patients have the ability to sexually consent? Is sex with a mental patient rape?
In the 1980s, there was a judicial interpretation: “Anyone who knows that a woman is a mentally ill person or a person with dementia (to a serious degree) has sex with her, no matter what the criminals use, they should be punished as rape.”
However, this judicial interpretation was annulled in 2013. Because such a provision obviously conflicts with the “Convention on the Rights of Persons with Disabilities.”
Moreover, this provision means that for a mentally ill woman or a woman with severe dementia, she said that she agrees, and the law does not recognize it at all-this is tantamount to depriving these mentally disabled women of all their sexual rights and is an extreme deprivation of the mentally disabled And discrimination.
Last year, there was a case in Handan, Hebei: A husband said that his wife was pregnant while in a mental hospital, and the person who handled it was not him, but a male nurse in the hospital. The husband filed a rape lawsuit against the carer, and the police also took the male carer away for investigation.
Does this male caregiver constitute the crime of rape?
I think that when looking at such cases, it is often necessary to look at two points. One is the wishes of the person concerned, and the other is the attitude of the surrounding people, especially the attitude of the judicial appraiser.
The result of this case made me feel that change is really happening. The girl confessed to herself that she and the nurse are voluntary. The forensic expert acknowledged the expression of a girl living in a psychiatric hospital. Her consent is valid before the law. This case does not constitute rape.
Many people have a misunderstanding that legal ability is a factual judgment and scientific test. Actually not. Legal capacity is a kind of artificial regulation and value judgment , that is to say, whether you accept that his expression is legally valid, is a question of “whether rights are given to you or not to you”.
Whether a person has legal capacity or not often depends on the attitude of those in power. The people in power here are not only legislators and judicial officials, but also judicial appraisers in the case, how their families and service providers think about them, as well as the attitudes of the media, onlookers, and each of us.
Don’t think that we are all powerless. not like this.
For people with disabilities, a healthy person is a person with power. Your attitude is also very important. For many people who are on the margins, we are actually the ones who are in a superior position. Sometimes we have to admit that we are in an advantageous position.
It is easy for us to confuse legal capacity and civil capacity with the usual term “capability”, but they are not the same thing. Legal ability is more about the right to exercise your rights-it is about rights, but the use of the word ability has caused confusion in everyone’s thinking.
A 17-year-old person has no full capacity for civil conduct, and when you are 18 years old, Chinese law recognizes that you are a person with full capacity for civil conduct, and you are given this right without any formalities. This is stipulated.
Like litigation capacity, generally non-legal professionals usually do not have the ability to litigate, but you can ask an expert to ask a lawyer to help you, and you can participate in the litigation. You can get support for the abilities you don’t have.
Supportive autonomous decision-making
The “ability” we usually talk about is that everyone has their own strengths and weaknesses, and how to deal with situations where certain abilities are lacking is an attitude of the law.
If you don’t have this ability, don’t go out, or if you don’t have this ability, we will make some supplements for you to give you a chance to go out. These are two attitudes.
The Convention on the Rights of Persons with Disabilities also intervenes in how to make up for those who are lacking in the ability to exercise their rights. The direction of adult guardianship reform is to promote the transformation from “alternative decision-making” to “supportive autonomous decision-making.”
This transformation includes the individual level, the community level and the public level. Every field and every category needs some changes.
Everyone can actually make decisions on their own. We should give people who did not have autonomy some options, and we also need to provide some personalized services. Mental patients don’t just need medicine. Like everyone else, they need multiple services, such as electricity, water, mobile phones, and community integration. The public level needs legislative and judicial protection, and public finances also need to provide some reasonable conveniences.
More importantly, the participation of people with mental disabilities is needed in the public sphere. In the process of our legislative participation, people with mental disabilities have always worked with us. This is very important because it is difficult for people without this status to truly understand their experiences and needs.
We often hear from medical professionals that mental disorders are the most burdensome disease. Of course, if you shut people up for decades, the burden is all recorded in the medical system. The burden is really very heavy. However, the mentally handicapped are not willing to accept this love, and they are more willing to become workers.
A person with a disability can become a worker, a service provider, or a taxpayer as long as he receives some suitable support. And this transformation is already happening. Many good practices and pilot projects have emerged in China.
The picture below is very interesting. It shows a group of old ladies and grandpas playing mahjong in the room, and the people who provide services for them are the rehabilitation of mentally handicapped people.
People with mental disabilities have been serving the elderly in Kunming for more than ten years. I asked them: Have you had any conflicts for so many years? They said no, they all enjoyed themselves. I asked: What is the most serious conflict between you and your neighbors? The person in charge said that the most serious conflict was that the green plants in the yard behind them blocked the sunlight and caused conflict. Therefore, integration does not necessarily bring any risks.
So, how much does the issue of mental disorders have to do with each of us?
In fact, there may be more mentally handicapped people around us than we thought. A survey conducted in Shenzhen in 2019 showed that 1 in 5 adults is a mentally handicapped person. And with the deepening of aging, the incidence of Alzheimer’s disease is also getting higher and higher. If we have no mental problems today, it does not mean that we will never have any in the future.
In addition to mental patients, there are many people who have the possibility of being substituted for decision-making. For example, some healthy elderly people cannot enter nursing homes without family members’ signatures. In fact, the rights of the elderly can easily be emptied.
There are also women’s decisions about caesarean section and natural delivery. After she was hospitalized, she signed a power of attorney to authorize her husband to exercise the right of informed consent. As a result, sometimes the doctor only recognized the husband’s decision, not the mother’s own decision.
The development of supportive autonomous decision-making will not only solve the decision-making problems of people with mental disabilities, mental disabilities, autism, and intellectual disabilities, but also improve many doctor-patient relationships, teacher-student relationships, and parent-child relationships.
We discuss mental illness and focus on the loss and restoration of citizenship. I feel that the self-advocates around me who work with me are not people who accept my help, but partners who work with me to promote social change.
thank you all.
This article comes from WeChat public account: Yixi (ID: yixiclub) , author: Huang Xuetao
Posted by:CoinYuppie，Reprinted with attribution to:https://coinyuppie.com/once-an-adult-enters-a-mental-hospital-everything-can-be-ignored/
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