Folk reports of mental illness

20 10 10 10 On the 6th World Mental Health Day, Psychiatry and Social Watch, together with Shenzhen Rights and Interests Organization, released this report, which is the first civil report in China to analyze the psychiatric treatment system from a legal perspective.

The report reveals the chaotic situation of "those who shouldn't be admitted but can't be admitted" in China's psychiatric department and the threat of resource allocation dislocation to the public, points out the defects of the current psychiatric admission system in China, and puts forward some suggestions such as establishing an effective objection mechanism.

Huang, the author of this report, told the reporter of Rule of Law Weekend that this report was also sent to the Political and Legal Committee and the Legislative Affairs Office of the State Council, with a view to providing reference for the ongoing mental health legislation. On the afternoon of 65438+1October 1 1, Mr. Huang received a short message informing the Political and Legal Committee and the Legislative Affairs Office of the State Council that the report had been signed.

Zhang Zanning, director of the Institute of Health Law of Southeast University Law School, added: "The law must protect everyone's rights and interests. Only by protecting him can we protect you and me. "

It is the key to confirm the patient's right to appeal.

According to the report, confirming the right of appeal of hospitalized mental patients is the key to solve the problem of mental illness treatment in China. The core proposal is to establish an effective objection review mechanism and popularize the legal representative system. It is considered that this is an essential system design to protect the rights and interests of mental patients and correct the wrong treatment behavior.

The report believes that the long-term development goal should be to establish a judicial review system for routine cases, that is, involuntary hospitalization should be authorized by the judicial organs. The hospital applies to the court for involuntary hospitalization within a certain period of time after the patient is involuntarily hospitalized, and the court makes a decision on whether or not to grant it. Psychiatrists can participate in the trial as expert witnesses.

The report also said that before the establishment of the judicial review system for routine cases, the objection review function of the courts and health authorities should be fully exerted under the existing system framework, and the civil courts can be used to make quick rulings and the health authorities can handle complaints.

For the legal representative system, in the short term, if the "patient" has the ability to entrust a lawyer, the hospital cannot deny the "patient" the right to entrust a lawyer; In the long run, the National Legal Aid Center should extend the scope of legal aid to all hospitalized mental patients according to the Convention on the Rights of Persons with Disabilities and the Law on the Protection of Persons with Disabilities.

The report also suggested that the decision-making power should be changed from the public security organ to the court for the compulsory reception of mental patients who "seek trouble". At the same time, the parties (including criminal suspects or victims) are given the right to directly initiate judicial expertise.

From 65438 to 0985, the Ministry of Health first appointed the Sichuan Provincial Health Department to take the lead, and the Hunan Provincial Health Department drafted the People's Republic of China (PRC) Mental Health Law (Draft). At the same time, a drafting group composed of psychiatrists was established in Chengdu, which opened a long prelude to mental health legislation in China.

"The reason why the Mental Health Law, which has a history of 25 years, has not been promulgated is because the draft pays too much attention to medical technology, while the substantive provisions for the protection of the rights of mental patients have rarely been improved. Huang thinks that the opinion is very bad and basically confirms the current practice. "

Ding, a famous lawyer, stressed: "The core issue of mental health legislation is how to balance public interests and individual rights. On the one hand, we should protect the public interests; On the other hand, we should protect the rights of mental patients. This must be the guiding principle of legislation. "

It is understood that among the countries in the western Pacific, only China, Laos and Marshall Islands had special mental health laws until 20 10.

While the mental health law is difficult to produce, local mental health legislation is constantly emerging. Until 2065438+00; Shanghai, Tianjin, Wuhan, Shijiazhuang, Heilongjiang and other places have formulated local laws and regulations for compulsory admission of mental patients.

These local mental health regulations have increased the financial input in the field of mental health, which can alleviate the difficulty of lack of resources in the field of mental health in China to some extent. However, because these regulations almost confirm the current system, the abuse of mental illness in the psychiatric admission system has not been substantially solved.

Admission confusion

In Huang's research, the chaotic situation of psychiatric treatment in China is divided into two aspects: "the treatment should not be treated" and "the treatment should not be treated".

The main problems of "whether to collect or not" lie in the heavy responsibility of family guardianship, the serious shortage of social assistance and the serious shortage of financial investment.

The problem of highlighting the legal system is mainly reflected in "collecting what should not be collected", which is the so-called "mental illness", which is also the focus of the report.

According to the research of the report, "being mentally ill" has fallen into a complete strange circle: individuals who should not be admitted to the hospital can easily be sent to a mental hospital for isolation treatment, but when they leave the hospital, they follow the principle of "whoever takes it". The hospital is only responsible for those who pay medical expenses, and there is no error correction mechanism during hospitalization, so it is impossible to complain, appeal and sue. Once admitted, no matter how the parties protest, there is no third-party organization to handle the objection.

After discharge, judicial relief failed. The parties who try to protect individual rights through litigation face many difficulties, either being deprived of litigation ability or being completely deprived of the right to appeal; Either fall into the trap of "medical disputes" and engage in a tug-of-war on the issue of "whether there is a disease", ignoring the irregularity of admission procedures. Even after years of struggle, the party who finally wins the case can only get compensation of 20,000 to 30,000 yuan for mental damage.

This is an irreversible "institutional cycle" faced by most "mental patients", and Zhu Jinhong is a typical footnote.

According to media reports, on March 8, 20 10, Zhu Jinhong was taken to the Fourth People's Hospital of Nantong City, Jiangsu Province by his mother Tang Meilan.

But apart from personal stories, Tang Meilan has almost no other arguments to prove that her daughter is sick. According to the clues held by media reporters, the Fourth People's Hospital did not produce any strong evidence to prove that Zhu Jinhong was ill. In a hospital diagnosis, some hard data such as imaging, laboratory examination and psychological scale evaluation are all missing, and the only basis is the "4-year mental history" provided by Tang Meilan.

201September 12, Zhang Bing, president of Nantong No.4 People's Hospital, said in an interview with a certain media that the biggest obstacle for Zhu Jinhong not to leave the hospital now is that his mother Tang Meilan is unwilling to take her daughter out of the hospital, which leads to Zhu Jinhong's continued "treatment" in a mental hospital. This "fast knot" stems from a "rule" that only guardians can take mental patients out of the hospital.

Zhu Jinhong, who was taken to the hospital, was a little anxious. She looked for opportunities to ask her friends and classmates for help in the hospital. Her letter of help in the hospital aroused social concern, and a certain media reported it, which had a great response in the society. Many enthusiastic people called on the hospital to release people, and the relevant departments held a coordination meeting attended by many people's congresses, political and legal committees, courts and women's federations on how to release people.

However, the efforts of so many institutions have lost to the industry rules of mental hospitals: "whoever sends, whoever receives." Even whether other people can go to the hospital to visit Zhu Jinhong "must get the consent of Zhu Jinhong's guardian". Therefore, the hospital insists that as long as Tang Meilan does not agree, no one else can pick Zhu Jinhong up and leave the hospital, and he has no right to visit.

20 10 On September 4th, 10 Under great social pressure, the hospital sent a lawyer's letter to Tang Meilan, asking her to "perform the duties and obligations of the guardian and go through the discharge formalities for Zhu Jinhong as soon as possible". Tang Meilan rejected the lawyer's letter. The hospital said that lawyers' letters will be sent to Zhu Jinhong's father and two sisters one after another. If relatives refuse to perform their duties, Zhu Jinhong's street office will become her "guardian".

Just when everyone gave up hope that Zhu Jinhong could be discharged in a short time, Tang Meilan suddenly agreed to pick Zhu up. /kloc-On the afternoon of 0/4, Zhu Jinhong was discharged from the hospital. Since then, Zhu Jinhong was placed under house arrest, and important documents such as passport, ID card and bank card were controlled by Tang Meilan until she was rescued by netizens.

Zhu Jinhong has not yet reached the litigation stage after fleeing from the hospital, but more people who go to litigation have suffered a fiasco.

Xiaomei, a girl from Jiangjin, sued the hospital for compulsory admission. She can't file a case for two years. The case was accepted by the court after being reported by the media.

In 2006, Guangzhou multi-millionaire He sued Guangzhou Brain Hospital to the Liwan District Court in Guangzhou. As of 20 13, the case revolved around "Was He Jinrong mentally ill when he was sent to hospital?" So far, the case has not been closed.

Eight major defects

Huang and her working group believe that the main reason for falling into such a strange circle is that there are eight defects in the psychiatric admission system in China:

There is no threshold for compulsory admission; There is no procedural specification for compulsory admission; Denying the individual's right to refuse hospitalization; Presumption of guardian without legal procedures; Discharged from the hospital follows the rule of "who takes it, who picks it up"; There is no error correction mechanism during hospitalization, and there is no way to complain, appeal and sue; Failure of judicial relief; The amount of compensation for mental damage is very low.

As for the reasons for the defects in the system, the report analyzes that the long-standing realistic feature in China is that the vast majority of mental patients are cared for and treated by their families, and the family responsibility is constantly strengthened through legislation, which is pushed to the extreme by the "medical care" system.

Therefore, when a family member sends a client to a mental hospital because of a conflict of interest, the client loses the right to speak and becomes the object of being trampled on. The "medical care" system has no ability to prevent and correct mistakes.

At the same time, the report points out that the deep-seated reason for the defects of the psychiatric treatment system lies in three fallacies in China's psychiatric theory, namely, referring to a deer as a horse and reversing black and white.

First of all, Chinese psychiatry denies the legal nature of compulsory admission, regards "compulsory admission that restricts personal freedom" as "pure medical behavior", thinks that compulsory admission has nothing to do with personal freedom, and refuses judicial intervention;

Secondly, Chinese psychiatry regards partial compulsory admission as voluntary treatment. If a party refuses to be hospitalized, the will of the deliverer is regarded as the party's own will. In theory, "involuntary treatment" against the party's will is called "voluntary treatment";

Finally, psychiatry in China uses medical standards instead of legal standards, and takes medical "self-knowledge" as the standard to judge the client's behavioral ability. Doctors go beyond the power of judges and give the status of "guardian" to the close relatives of the parties or midwives.