ZHANG Boyuan*

 

Abstract: People with mental disorders are a special group that are at high risk of living in poverty. China’s legal system concerning mental health is far from adequate in both theoretical and practical aspects, such as legislative concepts, institutional structure, legal norms, and targeted poverty reduction through health care. The improvement of China’s legal system concerning mental health needs to focus on protecting the rights and interests of people with mental disorders and take the following measures, including the precise poverty control for people with mental disorders, addressing comprehensive empowerment, and strengthening the subjective status of people with mental disorders, promoting the “community based” model of mental health governance based on social return, improving the financing mechanism and making use of the advantages of local governance.

 

Keywords: groups with mental disorders · targeted poverty alleviation · the rule of law

 

As one of the important topics of targeted poverty alleviation, poverty alleviation through healthcare covers two major policies of China, namely the “Poverty Alleviation” campaign and the “Healthy China” initiative. Most of the research related to poverty alleviation through healthcare in China emphasizes the exploration of the general laws of poverty control from the perspective of regional and industrial development. Health risks, including non-contagious chronic diseases, disability, and sub-health, are major threats to public health worldwide,¹ but the impoverishment of people with mental disorders and the heavy economic burden caused by mental disorders are the increasingly prominent health challenges worldwide. According to the latest research results published in The Lancet, mental disorders have become more and more common in the past 30 years. In China and the weighted prevalence of any disorder was 16.6% during the participants’ entire lifetime.² As of the end of 2020, the number of registered patients with severe mental disorders was 6.299 million, including 904,200 registered poverty-stricken people. In the remaining 52 poverty-stricken counties, the number of patients with severe mental disorders was 38,300. However, the academic community has failed to give the necessary attention to the poverty control of this extremely venerable group of people, and related achievements in legal research are also rarely seen. In 2013, the Mental Health Law came into force. Although it provides a preliminary solution for the widely criticized problem of “compulsory mental health treatment”, there are still no effective plans for preventing the impoverishment of people with mental disorders. In these circumstance establishing and improving the legal system and institutional norms for dealing with the impoverishment of people with mental disorders is a practical problem that should be solved. This paper tries to analyze the legal barriers to poverty reduction for people with mental disorders by revealing the inner mechanism and the cause of their impoverishment, hoping to find a way to improve the legal protection for them.

 

 

 

Mental illness refers to disorders or abnormalities of mental activities such as perceptions, emotions, and thinking for various reasons, which lead to obvious psychological suffering or effect the ability of sufferers to function in society. According to the current international classification of diseases (ICD-10), mental disorders are classified into nearly 400 branches under 72 categories in 10 groups, covering all types from severe mental illnesses (such as schizophrenia) to common mental disorders (such as neuroses). Different from other chronic diseases, mental illness has its distinctive features.

 

1. Unidentified pathogen for most mental illnesses. So far, merely a small number of mental illnesses have a clear pathogen cause, including organic mental disorders and mental and behavioral disorders caused by the psychoactive substance. But the pathogens responsible for most mental illnesses have not been identified. There are limited, even no biological early indicators or auxiliary diagnosis methods. As a result, the prevention of most mental illnesses lacks pathological measures. The identification and diagnosis of mental illnesses are mainly based on the knowledge and analysis of the thought, emotion, and other mental symptoms of the patients by psychiatric professionals, while the treatment is mainly to control the symptoms.

 

2. High risk to the society and disability rate. Schizophrenia is a severe disease typical in adolescence or early adulthood. It could become a chronic or repetitive disease accompanied by sequels and incomplete recovery of social behavior. With a high disability rate, it could reduce the capacity to work and the employment rate of the patients. The patients will require care for a long time because their length of healthy life will obviously decline. The loss of labor hours of the patients and those taking care of them would cause a heavy indirect economic burden.

 

3. Heavy burden on the patient’s family. Because mental disorders, especially severe mental illnesses, are often chronic diseases lasting for a long time and causing behavioral disturbances, the patients and their families will easily be reduced to or slip back into poverty. The patients are either have restraints on their liberty or become homeless. The costs of the treatment of mental disorders at the mid-to-late stage are very high, causing serious social and economic burdens. Meanwhile, the prevention,treatment, and rehabilitation of mental disorders will consume enormous resources and large sums of money. From 2010 to 2012, the direct economic burden caused by schizophrenia was 95.69 million yuan, 168.62 million yuan, and 197.7 million yuan and the indirect economic burden was 1.09668 billion yuan, 1.20189 billion yuan, and 1.37508 billion yuan respectively; the average direct economic burden caused by schizophrenia was 154 million yuan while the ratio of direct economic burden and the indirect economic burden was 1:8.5. These figures are consistent with the estimation of most countries. If the overall situation of China is estimated by the data in Guangzhou, the direct medical expenses caused by schizophrenia are as high as 250.3 billion yuan.³ In contrast, the total investment of the central government and the local governments at all levels for improving mental health services was 15.4 billion yuan in the same period, which was just a drop in the bucket.

 

Mental illness has become a social phenomenon and we should be fully alert to its huge negative impacts on our social and economic life. According to the estimation of the World Health Organization (WHO) in 2000, 121 million people were suffering from depression and 24 million people were suffering from schizophrenia worldwide.The overall disease burden could be estimated through disability-adjusted life years as proposed by the World Bank. In 2000, the burden of mental illnesses accounted for 12% of the overall burden of disease. By 2020, the disability-adjusted life year caused by mental illnesses could reach 15% of the total. Because most of those suffering mental illnesses are young and middle-aged people with the greatest productivity in all age groups, therefore a heavier social burden would be caused. According to the latest study on Global Burden of Disease (GBD) by the WHO, the burden caused by unipolar depression (also known as major depressive disorder) will jump from the third to the first from 2004 to 2030 and unipolar depression will become the disease causing the heaviest burden globally. It is pointed out in a report of World Economic Forum (WEF) published in 2011 that “the impact of cancer, diabetes, mental illness,cardiopathy and respiratory diseases to the world economy could reach 47 trillion US dollars in the next 20 years. The accumulated GDP losses equal to 4% of the annual global GDP.” The losses caused by mental illness are estimated to be 16 trillion US dollars, which is equivalent to one-third of the global losses.⁴

 

 

Because of the long process and high complexity, mental illnesses have become one of the main health problems plaguing current society, and the prevention and rehabilitation of mental illnesses require the mobilize rich social resources. As for the prevention and control strategy, it is completely different from those for chronic diseases and infectious diseases. The poverty of people with mental disorders is caused by the degradation of their ability to work and function in society. Income is not the sole factor for judging the poverty or the risk of poverty for people with mental disorders. Multiple factors including capacity, rights, social exclusion, vulnerability, and right of speech should be considered. Therefore, not only should the impact of the institution, capital, and environment on poverty be analyzed but also the risk and opportunities be discussed for considering the poverty of people with mental disorders. In this sense, there are two reasons for the poverty of people with mental disorders. One is that the absence of the ability to resist risks and the opportunity for a better life makes it difficult for those in this vulnerable group to get rid of poverty. The other is that the impact of risks is a major factor for their poverty.⁵ In this sense, the legal path for poverty risk governance focusing on people with mental disorders can be outlined.

The legal system concerning mental health could be promoted in two aspects. One is to prevent and curb people with mental disorders from the risks of health problems and poverty through legislation. The other is to provide more opportunities and resources for them to get out of the mental health crisis and poverty. It should be clarified that the former pays more attention to the warning and prevention of the tendency of “impoverishment” for people with mental disorders of different types and levels of seriousness, which has no essential connection to the disease prevention and control system in the Mental Health Law. Therefore, we should not look at the legal system one-sidedly by judging its effect on prevention and treatment of disease or the overall prevention and control of social security. Since it is an important principle for assessment of the mental health governance under the rule of law, it is necessary to judge whether the legislation effectively prevents the impoverishment and marginalization of people with mental disorders and encourages the resumption of their social functions so they can return to the society by establishing mechanisms to ensure their rights to health and social rights. To be positive, the exploration of the legal system concerning people with mental disorders from the perspective of antipoverty theory and human rights law will promote the innovation in the methodology of mental health public governance in China.

 

 

The Mental Health Law, the Law on Promoting Basic Medical and Health Care, the Law on the Protection of Persons with Disabilities, and other laws constitute the legal framework for protecting the rights and interests of people with mental disorders, providing the fundamental institutional guarantee for protecting the legitimate rights and interests of people with mental disorders. However, it is still insufficient to prevent the group from falling into poverty as well as poverty alleviation and reduction. In the Outline of the Healthy China 2030 Plan published in 2016, it is proposed to implement health-related poverty-alleviation programs, intensify support for the construction of medical institutions in poverty-stricken areas in the central and western regions, improve the service capabilities and ensure the health of the poverty-stricken population, yet all these are merely general principles without detailed measures. At the core of the legal system for medical and health care in China, the Law on Promoting Basic Medical and Health Care lays the institutional foundation for poverty alleviation through healthcare via establishing a public health service system, basic medical services system, medical security, and assistance system, and other systems, yet it fails to clarify the legal status of poverty alleviation through healthcare or cover relevant achievements. For example, a community-based rehabilitation system can effectively improve the service capacity of communitylevel healthcare institutions and reduce the medical costs of patients, yet it is not included in the legal system.⁶ Coming into effect in 2013, the Mental Health Law was published earlier than the Law on Promoting Basic Medical and Health Care. It constitutes the basic framework for the lawful protection of the rights and interests of people with mental disorders. With a specialized system for prevention, treatment, and rehabilitation of mental disorders, it realizes the lawful protection of the rights and interests of people with mental disorders for the full life cycle. Meanwhile, it promotes orderly aid and treatment for patients to balance their personal rights and interests with social security. Nevertheless, it is still not perfect in terms of its legislative concept, institutional paradigm, and specific standards. All provisions of the Mental Health Law are consistent with just 37.3% of the 166 human rights standards in the Checklist of WHO Related to Mental Health Legislation.⁷ The legislation tends to be “patient-centered”; 34.1% of the provisions involve diagnosis and treatment of mental illnesses, accounting for 61.7% of the total number of provisions in the system for prevention, treatment, and rehabilitation. Strictly speaking, it doesn’t quite meet the spirit of human rights law and social law and the law’s role in preventing and curbing the impoverishment of people with mental disorders is comparatively weak. 

 

The legislation on mental health is a controversial and gradual process in all countries. To eliminate the connection between poverty, unemployment, and mental disorders, attention has been paid to venerable groups and social exclusion in policies and legislation.⁸ In response to the challenges of the traditional biomedical model to national mental health, the importance of social environment, value system, and mutual assistance has been highlighted in the policy and legal environment of all countries. Therefore, it is of obvious theoretical significance to reflect on the internal logic structure and ways for realizing external functions of the legal system of mental health in China from the perspective of anti-poverty theory and “maximum welfare” for people with mental disorders. The determinant for the realization of the rights of people with mental disorders is the social support for them. At present, the treatment of patients with severe mental illnesses, poverty-stricken patients staying at home,in particular, has not been finally solved. More than half of the patients with severe mental illnesses have fallen into poverty, yet the current healthcare insurance system fails to solve the problem of medical care for them at home. Besides, fundraising has been an important bottleneck in the improvement of mental health. The fairness of mental health services is not fully reflected in the national strategy for supporting the poverty-stricken population. The financial investment mechanism and compensation mechanism for specialized institutions are not perfect. Facing the huge group of about 100 million people suffering from mental disorders or psychological problems,the investment of governments at all levels into mental health is merely around 2% of the total investment into health in China, which is lower than the level of Western countries which is between 5% to 10%.⁹ The fundamental reason lies in the imbalance of medical resources allocation, improper replacement of rehabilitation logic, low level of equitable access to public services, unscientific policy standards,and other barriers.

 

 

Rehabilitation is a crucial link for people with mental disorders to escape the disease and return to society as well as the prerequisite for poverty alleviation and getting them out of poverty. However, the tendency to highlight policies on people with severe mental disorders enhances the logic to ensure security through enhancing control on them, which is inconsistent with the important objectives to promote their communication with others, equal opportunities in education and employment, and participation and returning to the society without discrimination. The traditional mental health administration system constrains the establishment and running of community rehabilitation centers. “Control of patients” is a coercive measure for ensuring social security at the expense of the freedom of patients. Although a community control network that clarifies rights and responsibilities at different levels has been established, it limits the development space for community rehabilitation and reduces the effective supply of resources for ensuring the social rights of people with mental disorders. Besides, the pursuit of “pointless formalities” and “vanities” in management causes the conflict between government guidance and the independence of rehabilitation service, which lowers the access to community rehabilitation services and fails to satisfy the individualized needs of people with mental disorders or make their voices heard on their rights and interests.¹⁰

 

 

The universally recognized best mental health service model is community-based with specialized institutions for mental diseases as the “last resort”. The final objective for the treatment of patients with schizophrenia is to help them return to society. As a result, the place for treatment should gradually shift from hospitals to communities and even families, which is conducive to improve the social functions of patients, reduce their functional disability, and thus fundamentally lower their expenditure and the risk to be reduced to or returned to poverty because of illness. According to the UN Convention on the Rights of Persons with Disabilities, disability results from the interaction between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others. It is pointed out in article 25 that persons with disabilities have the right to the enjoyment of the highest attainable standard of health without discrimination because of disability and all state parties are required to “provide health services as close as possible to people’s communities, including in rural areas.” “Community based” treatment of mental health problems is an effective treatment mode that reflects the concept of human rights protection.

 

Based on the community, it integrates the service resources of specialized hospitals with those of the community to provide all-around care for people with mental disorders, which requires the improvement of the awareness of the rule of law and the implementation of institutional innovation at an appropriate time. However,the Mental Health Law in China is comparatively “hospital-based”. Under the influence of the national medical system, high-quality resources for mental health are still concentrated in specialized medical institutions in developed regions. Although it is proposed in the 2015-2020 National Mental Health Work Plan that “it is encouraged to treat severe diseases in hospitals and manage rehabilitation in communities”,trying to enhance the role in the community in rehabilitation, there is no professional community mental health service in a real sense in China. In practice, there is a shortage of hospital beds for mental illness, yet the transition to “community-based” rehabilitation still faces multiple barriers. Since community rehabilitation centers are not given the same legal status as specialized medical institutions for mental illnesses,it is difficult to bring their role in community mental health services into full play. People with mental disorders are a special vulnerable group with an extremely high risk of poverty. It is difficult to cure mental illnesses which often require lifelong medication treatment. As a result, the prevention, diagnosis, and rehabilitation of mental illnesses, as well as the returning to society of people with mental disorders, involve a series of complex institutional arrangements. Although mental illness is like chronic disease in terms of long-term treatment and high social burden, the principle for its prevention and control is also greatly different from that for infectious diseases and chronic diseases. The rules for its legal guarantee are different from those for chronic diseases and infectious diseases. According to earlier studies, the median costs of an outpatient service visit for anxiety disorder patients are higher than those of patients of such chronic diseases as Parkinson’s disease and coronary disease. Meanwhile, the median costs of an inpatient service period of them are also higher than those of patients with such chronic diseases as diabetes, Parkinson’s disease,and coronary disease.¹¹ The aforementioned estimations in Guangzhou reflect that the direct economic burden caused by inpatient treatment of schizophrenia is much heavier than that of outpatient treatment, accounting for about 93% of the total direct economic burden. The cost of medicines for outpatients accounts for over 90% of their total expenses while that for inpatients is merely 10%, which indirectly reflects the limitation of hospital-based treatment mode due to the consumption of more resources.

 

 

Lacking of financial resources is a major bottleneck for realizing the welfare for people with mental disorders in all countries. The current capacity of China in mental health service is far away from the needs of the people for health as well as the economic development and social management of the country. Insufficient investment in mental health infrastructure has become an important factor constraining law enforcement. In late 2004, the Ministry of Finance approved the establishment of a nationwide program to subsidize local governments for the management and treatment of serious mental illnesses. By 2012, a total of 376 million yuan had been invested by the central government in the program. A network for prevention and control of severe mental illnesses was established in 1,578 counties of 221 cities under 30 provinces (autonomous regions and municipalities directly under the central government) and Xinjiang Production and Construction Corps except for Tibet. Nevertheless, there is still an extreme lack of mental health services resources in China and the distribution is uneven at present. There are 1,650 professional mental health institutions, 228,000 hospital beds for psychiatric departments, and over 20,000 psychiatrists nationwide. They are mainly distributed in provincial-level and prefecture-level cities. The community rehabilitation system for mental disorders is still to be established. In some regions, the discovery of and follow-up service for patients with severe mental disorders are not fully in place. The duty of guardianship can hardly be fulfilled, some poverty-stricken patients could not be effectively treated, and the treatment of patients under compulsory medical treatment according to law and those causing accidents still faces difficulty.

 

It is no doubt that the single-dimensional anti-poverty policy focusing merely on passive assistance and income support is a major barrier to preventing and curbing the impoverishment of people with mental disorders. An important reason for the high risk of the impoverishment of people with mental disorders is the indifference of the current legal framework to the resocialization of people with mental disorders. Without the powerful support of the government in finance and allocation of legal resources, people with mental disorders face a policy vacuum to ensure their social rights like rehabilitation, employment, and education. Insufficient law enforcement and absence of supervision directly result in poor poverty alleviation for people with mental disorders. At present, the support for people with mental disorders is limited to the traditional way of financial aid without resilience. Because the input of resources is insufficient, the practical needs for poverty alleviation are not considered, and the providing of services and development opportunities as well as the creation and protection of rights are to a great extent neglected. Thus the support does not bring substantial change to their poverty situation. In terms of the assistance to enhance the rights of persons with mental disorders in such aspects as medical treatment, rehabilitation, and social opportunities, it is difficult to ensure that all needs relating to poverty alleviation are covered. As a result, they are unable to get out of poverty because of the difficulty in creating life opportunities to ensure their legitimate rights.

 

 

The policy structure for mental health governance in China originates from an earlier management mode for people with severe mental disorders. In 2004,a nationwide program (“686” program) to subsidize local governments for the management and treatment of serious mental illnesses was launched. Aiming to establish a sustainable prevention and control mode for severe mental illnesses characterized by “government guidance, full participation, scientific support, and community-centered”, the program has played an active role in reducing the troubles caused by patients and improving the support for vulnerable people. However, special guarantees to people with severe mental disorders are highlighted in the Mental Health Law under the inertia of the long-term policy. “Severe mental disorders” stipulated in article 83 of the law is not a legal concept in the strict sense. It is merely a concept covering six mental diseases.¹² Apart from regulating the diagnostic criteria,the law clarifies the obligations of administrative departments for public health,medical facilities, community health centers, rural township health centers, and rural village health clinics for the treatment and rehabilitation of patients with severe mental disorders staying at home and the training of their guardians. Preference is given to “patients with severe mental disorders” in the rehabilitation system and social security system. It is stipulated in article 55 of the Mental Health Law that medical facilities shall provide maintenance treatment with basic psychiatric medications to persons with severe mental disorders who live at home. Urban community health centers, rural township health centers, and rural village health clinics shall establish a health registry for persons with severe mental disorders, periodically follow up persons with severe mental disorders who live at home and instruct them about the use of medication and rehabilitation. Judging from the tendency of the latest policy on targeted poverty alleviation, attention is paid to subsistence assistance and medical treatment. Departments of civil affairs and other departments in povertystricken counties are required to include qualified registered patients with severe mental disorders into such policies as subsistence allowance, temporary relief, and living allowances for people with disabilities in financial difficulty and nursing care subsidies for people with severe disabilities in time. Poverty-stricken counties should provide subsidies for the treatment of patients with severe mental disorders and abolish the prepaid fees for registered patients in the hospital. Priority should be given to patients with poor treatment compliance, weak family monitoring capacity, or no guardian in using long-acting injection for treatment. Departments such as health and medical insurance, and disabled persons’ federations have implemented the policies for the treatment of patients and are making joint efforts to reduce the patients’ expenditures.¹³ Nevertheless, the following problems have still not be solved by the preference in legislation and public policies. First, treatment for free is limited to poverty-stricken patients with a tendency to cause trouble. Without equal access to it, there is “differentiated protection” for people with mental disorders to varying degrees. Second, treatment for free is limited to medication and there is a lack of non-medication measures for later rehabilitation. Third, the financial support is limited to the special funds allocated by the central government.¹⁴ Whether such a program relying on special financial support under government guidance can avoid the trap of “program governance”¹⁵ and provide sustainable welfare for people with mental disorders is still to be proved. Finally, the policies for controlling social risk seriously restrict the rights to personal freedom when the potential threat of people with severe mental disorders is curbed. When the overall resources for mental health are insufficient, the “special protection" for people with severe mental disorders could cause excessive occupancy of social resources and discrimination against them. As a result, other people with mental disorders will be deprived of the resources and opportunities, and the spirit of the rule of law for ensuring fair and accessible mental health services will be weakened.

 

 

It is an indispensable condition for eliminating poverty to maintain and support human rights and human dignity.¹⁶ One of the disadvantages of the current legal system for mental health governance is to limit the legitimate rights and interests of people with mental disorders from the traditional medical perspective with emphasis laid on “disease”, “patient”, and “hospital”. Although it is a simple way for legislation, it can hardly prevent the impoverishment and marginalization of the group. Therefore,the “human rights mode” should be adopted through introducing the knowledge of the discourse on medical care for the disabled and psychiatry. Protection of the human rights of people with mental disorders should be taken as the fundamental logic in making policies and promoting the rule of law. Poverty eradication and targeted poverty alleviation are of great methodological significance and practical value for reflecting on the status quo and development trend of the legal system for mental health in contemporary China.

 

 

Customized protection and assistance strategies should be made for people with mental disorders of varying degrees so that targeted policies can be implemented for specific groups. The one-sided resources supply mode highlighting the increase of government investment should be changed, so a feasible strategy for improving the rule of law should be provided from the demand of people with mental disorders for survival and development and the laws for guaranteeing their rights to health and social participation. The causes of poverty for individuals and households can be classified into four levels, namely the resources enjoyed by a poverty-stricken family or individual, their potential for development, the external impact on them,and the environmental constraints on them.¹⁷ In this sense, the following strategies could be used as specific measures for poverty control. First, people with minor mental disorders often suffer from social exclusion or serious defects in personality and psychology. Considering that they have a certain potential for development,emphasis should be laid on improving the social psychology service system and social correction mechanism to avoid them from dropping into the social relationinduced poverty trap. Second, because people with severe mental disorders are lack development capacity, emphasis should be laid on providing a certain social welfare guarantee and social charity assistance for them to ensure their subsistence with dignity. Although the medical insurance for people with mental disorders and the social assistance for poverty-stricken patients with severe mental disorders are clarified in articles 68 and 69 of the Mental Health Law respectively, the “selective” social security mode is inconsistent to promote all-inclusive social welfare. At present, the social security policies for people with mental disorders are limited to povertystricken patients with severe mental disorders covered by the subsistence allowance. Due to their double identity, they face practical difficulties in daily life. Considering the characteristics of the social security system in China, social assistance is ensured through implementing the social security policies. In particular, the policy to reduce or exempt the medical expenses of patients suffering from major diseases has fundamentally eased the economic burden of the relatives of patients with severe mental disorders. However, these series of social assistance and social welfare policies cannot be enjoyed by those people with severe mental disorders who are excluded from the social assistance system because that they fail to meet the standard for poverty and those people with minor mental disorders. The medical expenses of these people should still be paid on their own. To this end, it is urgent to introduce a social vulnerability assessment mechanism¹⁸ into refined mental health legislation to provide the decision-making basis for improving the social assistance mechanism covering patients with mental disorders and their families in need of help. Correspondingly,family poverty standards and related free medication and reimbursement policies suitable for the flexible social assistance to people with mental disorders could be

provided to improve the benefits to them.

 

 

First, people with mental disorders should not be passive receivers of social welfare. It is the foundation and premise for realizing the publicity of mental health to respect and protect the subjective status of people with mental disorders and improve the system for protecting their rights and interests. The public governance in contemporary China should be aimed at promoting the all-around development and liberty of every individual with the participation of multiple parties. The greatest problem in the current public governance is the absence of the vulnerable group as a basic subject. It is urgent for future policy-making and legislation to change the disadvantageous position of people with mental disorders through strengthening their subjective status and avoid the infringement of their interests. It is proposed in the UN Convention on the Rights of Persons with Disabilities that its purpose is to promote,protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity. The positive correlation between the resumption of the subjective status of people with mental disorders and the publicity of mental health is manifested in the legislation on mental health by different countries in the 1970s. Section 504 of the Rehabilitation Act of 1973 of the US prohibits discrimination against qualified individuals with disabilities by any program or activity receiving federal financial assistance, reflecting the turning from “charity to the rights of the citizen” and laying the institutional foundation for the Americans with Disabilities Act of 1990. The Mental Health Law of South Africa adopts the non-discriminatory term “users of mental health”. Users are encouraged to participate in the policy-making relevant to the development of mental health to turn their unique experience into a reference for decision-making.¹⁹ Therefore, it is suggested to revise such “stigmatizing” terms as “mentally disordered person” and “people with mental disorders” in our legislation promptly. All “users of mental health services” should be mobilized to actively and extensively participate in the decision-making process and thus changing the current situation of passive participation as “patients”. 

 

Second, the rights of people with mental disorders to rehabilitation as well as participation and inclusion in society should be improved and guaranteed. “Full and effective participation and inclusion in society” is stressed in article 3 of the UN Convention on the Rights of Persons with Disabilities as a general principle. The ultimate goal of the treatment of patients with mental illnesses is to ensure that they can return to society. Rehabilitation and returning to society are of greater significance to society and people’s livelihoods. The government should take effective measures to empower people with mental disorders and clear up the way for their participation and inclusion in society. In 1988, respect for the human rights of people with mental disorders and their returning to society was included in the first revision of the Mental Health Law of Japan. In 1999, Japan revised the Mental Health Welfare Law. An important change was to increase social welfare measures to promote the training and guidance for people with mental disorders to return to society. Therefore, the concept, content, and implementation of the anti-poverty policy should be shifted from passive assistance to active support. Passive policies to exclude the development opportunities for people with disabilities should be changed and the rights of people with disabilities should be enhanced. More social services of universalism should be provided and the services focusing on their empowerment and the financial aid should be combined. The government should support people with mental disorders to get out of poverty through improving their educational attainment, developing production,and transferring them to locations where they can find employment. A customized comprehensive assistance plan is of a longer effect than assistance in a single aspect.

 

Third, we should promote equal and non-discriminatory protection of the rights and interests of people with severe mental disorders and people with minor mental disorders. It is suggested to apply the rights to medical rehabilitation, medical insurance, and social assistance in articles 55, 68, and 69 of the Mental Health Law equally to all people with mental disorders. Corresponding regulations could also be made to eliminate the differential treatment in the rights to rehabilitation for “people with mental disorders.” Besides, the implementation of articles 54 and 57 of the Mental Health Law relies on the organizations for disabled persons in specific regions, resources of rehabilitation facilities, and the operation of rehabilitation facilities. All in all, it is necessary to enhance the guidance of the government in the protection of people with disabilities, increase the input of rehabilitation resources, and improve the effective support for people with mental disorders. Therefore, it is also necessary to coordinate the relationship between the Mental Health Law and the Law on the Protection of Persons with Disabilities to share the achievements in the development of social welfare programs concerning the disabled with people with mental disorders and maximize their sense of fulfillment during the enjoying of rights and interests.

 

 

With a high disability rate, mental illnesses are different from ordinary diseases. The protection of the rights to health for people with mental disorders should focus on rehabilitation services that have a substantial impact on their returning to society. 

 

The service network for prevention, treatment, and rehabilitation could become an important path for patients to return to normal life. “Community-based” treatment of mental health problems is an effective mode reflecting the concept of human rights protection. Based on the community, it integrates the service resources of specialized hospitals with those of the community to provide all-around care for people with mental disorders. To this end, it is suggested to establish a “governance community” for mental health based on a balance between hospital and community mental health services. The rights and obligations of specialized hospitals, community healthcare centers and social rehabilitation facilities in prevention, treatment, and rehabilitation should be clarified. Diversified services covering community treatment, follow-up service, two-way transfer treatment should be provided and hospital beds may be placed at home for people with mental disorders. The experience of the Community Treatment Order (CTO) Policy of the UK could be learned from. It aims to provide people-centered service for patients who are less restrictive to compulsorily treatment in hospitals but haven’t fully recovered. As a policy for implementing the previously launched supervised community treatment (SCT) program, it covers the applicable objects, approval subjects, restrictions to the rights of patients, the termination of the treatment order, and the procedures of relief, and so on. It is a “customized health care plan” for the rehabilitation of people with mental disorders. Patients living in the community are required to make a regular return visit and accept a home visit. Considering the safety of the patients, the policy can prevent the recurrence or deterioration of their problems and help them better recover and participate in community life via the concept of community-based rehabilitation. Compulsory community treatment is necessary due to the shift to community care of people with severe mental illness and that it is less restrictive to compulsorily treat someone in the community than to subject them to repeated hospital admissions. It is also effective in bringing stability to the lives of people with severe mental illness.²⁰ Some patients who had been in forced detention in the hospitals were shifted to supervised community treatment, which saved money for the National Health Service in the UK.²¹ This legislation successfully clarifies the boundary between the rights to decision-making by medical professionals and the judicial authority, which is conducive to easing the tension between scientific standards and procedural justice and balancing the prevention of social risks and the protection of the rights and interests of people with mental disorders. The CTO policy is very instructive in the construction of a regional mental health services network during the deepening of medical reform in China. Based on the community, China could integrate the resources of health, civil affairs,disabled persons’ federations, public security, education, and other departments through establishing a well-coordinated and interconnected working mechanism to improve the continuity of mental health services. In this way, people with mental disorders can move freely in different parts of the community’s mental health service system. It can promote the protection of the rights and interests of both people with mental disorders and persons with disabilities and improve the access of people with mental disorders to the welfare and rehabilitation resources for persons with disabilities. Therefore, it is necessary to integrate the implementation mechanism for the Law on the Protection of Persons with Disabilities and the Mental Health Law and promote their effective connection from the angle of policy-making and the rule of law.

 

 

A sound system for ensuring the rights to health of the people should be comprised of four major parts: the healthcare financing system, health delivery system, health-based industries system, and public health system.²² The healthcare financing system can be further divided into the system for raising medical funds and the system for pricing and payment of medical services and products. The healthcare financing system is at the core of the management of the entire medical system. It is a process of reallocation of income of different social groups to provide basic social insurance for low-income people and maintain social stability. Meanwhile, it is the major mechanism for regulating the medical supply and behaviors of patients in seeking medical care by medical administration institutions. Moreover, it influences the structure and development direction of the medical industry. An ideal medical system should satisfy the requirements for accessibility, cost, and quality. Accessibility refers to equal access to medical services by all social members regardless of their income and social status. It covers both the supply side and the demand side. On the supply side, it includes the accessibility to venues, facilities, professionals, and basic medical and health services. On the demand side, it is mainly reflected in the payment for basic medical and health services. Reform of the existing payment method for medical services for people with mental disorders will become a new topic for promoting mental health governance in China.

 

The problem in fund-raising is an important constraint on mental health governance. At present, such special services as “free medication” are provided for people with severe mental disorders, yet it is difficult to realize full coverage of all people with mental disorders. According to the Circular of the State Council on Issuing the Poverty Alleviation Plan for the 13th Five-Year Plan Period (Guofa [2016] No.64), the proportion of assistance and the maximum payment for poverty-stricken patients should be determined based on the consideration of multiple factors including their family circumstances, out-of-pocket medical expenses, and the local fundraising; the range of aid for treating major and serious diseases should be expanded from recipients of subsistence allowances and people in extreme poverty in the rural areas to the old, the young, persons with severe disabilities and people with serious diseases in low-income families; and active exploration should be made to provide assistance to critically-ill patients in illness-stricken poor families with emphasis laid on qualified children with serious diseases or severe disabilities. To promote poverty alleviation through healthcare, the General Office of the State Council published the Circular on Issuing Key Missions of 2019 for Deepening Reform of the Healthcare System (Guobanfa [2019] No.28) in May 2019. Local governments are encouraged to make support policies for those with incomes slightly above the poverty line.

 

Differences in regional financial resources and insufficient information have become the greatest constraints on the overall progress of poverty alleviation through healthcare. As a result, local governments should be encouraged to make their own rules and policies considering the recognition of the local realities. The local legislation on mental health and its development vividly demonstrate an objective law of the rule of law in China, namely the pioneering efforts of local governments to promote the overall development of the country. It is also a useful experience in the development of a system of rule of law in China. “Pioneering efforts of local governments in promoting the rule of law” is one of the important features of the transformation of the rule of law in China. The basis for the pioneering efforts of local governments to provide health welfare is the pioneering efforts of developing regions in China to promote economic and social development. Dongguan city in Guangdong province has taken the lead in the reform of the medical insurance system and found a path with distinctive characteristics. Dongguan is the first city in China to establish a medical insurance system under urban-rural integration which is characterized by “universal medical care, beneficial to all, government guidance and centralized management.” In 2017, the city issued the Plan for Mental Health Work in Dongguan (2017-2020) and proposed an assistance mechanism with distinctive local characteristics. With such departments as civil affairs, social security, and disabled persons’ federations fulfilling their respective responsibilities, the social assistance system suited to the features of the treatment of mental disorders is improved to promote social assistance for patients. The disabled person’s federation is responsible for including people with severe mental disorders with permanent residency in the city into the management system for persons with disabilities and taking the initiative to provide them with certificates of persons with disabilities. The civil affairs department is responsible for including people with severe mental disorders into the subsistence allowance system so that all the eligible people will receive the benefits to which they are entitled. For those who have financial difficulties but fail to meet the requirement of subsistence allowance, temporary relief measures will be taken to support their basic livelihoods. Those with severe mental disorders who are unable to work, have no source of income, and have no legally responsible relatives or whose legally responsible relatives are unable to provide support will be covered by the policy of assistance and support for people in extreme difficulty. For those cured or in a stable condition but in need of and who qualify for assistance as homeless persons and beggars, the municipal assistance and management station will provide corresponding assistance. The social security department is responsible for covering those patients who qualify for full funding by the government under the basic health insurance and providing relevant service for them. The human resource department and the disabled person’s federation should support patients who can work after rehabilitation to seek employment and entrepreneurship. Public welfare jobs can be created for those facing difficulty finding employment. All-round services should be provided for them to promote equal employment, avoid employment discrimination and safeguard the legitimate rights to employment.

 

In short, a sound local medical security policy system is conducive to the integration of basic health insurance, serious illness insurance for urban and rural residents, medical aid and assistance for emergency medical treatment, and other systems. As a result, it can enhance the protection for people with mental disorders at varying degrees and empower people with mental disorders in poverty alleviation.

 

(Translated by HU Liang)