Rethinking China’s mental health law reform: Treatment decision-making and the UN Convention on the Rights of Persons with Disabilities

Abstract

This thesis explores China’s mental health law reform regarding treatment decision-making in the new era of the UN Convention on the Rights of Persons with Disabilities (CRPD). It adopts a socio-legal approach, not only by undertaking a comprehensive desk-based analysis of the reforms introduced by China’s Mental Health Law (MHL) but also examining its implementation based on evidence from practice. The thesis seeks to answer the research question: does China’s first national MHL take a step closer to the requirements of the UN Convention on the Rights of Persons with Disabilities on mental health treatment decision-making? If not, why not?

The thesis addresses the CRPD and the relevant authoritative interpretations that require States Parties to abolish mental health detention and involuntary treatment. States Parties are obliged to provide non-coercive supports under which persons with mental health issues are supported to consent to or refuse mental health treatment. This thesis also engages with the criticisms of this approach and finds the consensus from the debate, as a basis of assessing whether the MHL takes a step closer to the CRPD requirements. However, it is not intended to challenge the interpretation of the CRPD Committee. After providing a contextual background of the mental health services and legal system in China, the thesis then outlines a comprehensive study of the current normative framework for mental health treatment decision-making under the MHL. Compared to the seven municipal mental health regulations and two drafts that operated before the MHL’s enactment, the thesis argues that the MHL has taken a step closer to maximising service users’ decision-making rights in respect of treatment. However, the qualitative interviews and an analysis of the courts’ judgments undertaken as part of this thesis suggest this change introduced by the MHL has not been translated into practice. Family members and psychiatrists share the authority in deciding detention and involuntary treatment; whilst the voices of service users may be silenced. This thesis suggests that inadequate implementation of the progressive law reform is a result of several institutional factors: the remaining power imbalance between psychiatrists and service users, the central role played by family members’ in exercising rights and responsibilities under the MHL, and the barriers that restrict service users’ access to justice through the courts.