Feng Xiaoyan’s case shows how practices of involuntary hospitalization and adult guardianship can combine to lock away unfortunate victims – sometimes for life.
Originally published in The Diplomat
August 13, 2020
By USALI Research Scholar Yin Chi & NYU Law Professor Jerome A. Cohen
It has long been known that China’s psychiatric facilities are routinely manipulated by government officials in order to silence political dissidents. Yet a growing number of cases are coming to light in which mental hospitals are also being misused by influential citizens for more personal reasons. Because people diagnosed with mental illness often end up in a civil confinement facility for years, if not for the rest of their lives, the system of involuntary hospitalization for mental illness has become a catch-all for all kinds of unwanted people.
The case of Feng Xiaoyan, who was diagnosed with schizophrenia in April 2020 and is currently confined in a Shandong province hospital, has been reported as an all-too-familiar case of political repression. On closer examination, however, it is not clear that Feng’s political activities alone were offensive enough to provoke the government to hospitalize her. Her activities may have been eccentric enough to make her husband concerned about the impact of her behavior on his career. It was her husband who took her to the hospital in the first place and her husband who now refuses to enable her discharge. Whatever the root cause of her situation, Feng is now stuck in a legal limbo from which escape is extremely difficult.
As Radio France Internationale, Human Rights in China, and The Globe and Mail have all reported, Feng’s confinement began shortly after she was picked up by Beijing police for distributing pro-democracy leaflets near Wangfujing in April. Her leaflets promoted, among other things, “democratic reform and reelection.” Yet, according to a recorded conversation with the Dongcheng District police, which has jurisdiction over the Wangfujing area, the offense that got Feng picked up was not political dissent, but rather the simple distribution of pamphlets; she would have been detained equally for distributing advertisements. This assertion is supported by the fact that the Beijing police did not charge her or institutionalize her. They allowed Feng’s husband to pick her up and transport her back to their native city of Linyi in Shandong.
Rather than taking Feng to their home, however, her husband took her to the Linyi No. 4 People’s Hospital. His decision to hospitalize her may have been encouraged by his former supervisor in the local government. In any event, Feng underwent involuntary admission and was diagnosed with schizophrenia. Her daughter, who has been the primary source of information for all reports on this case, including our own, maintains that Feng is entirely sane. She says that, if her mother has any mental illness at all, it is the result of being improperly institutionalized and medicated.
This is not Feng’s first stay in a mental hospital. The Globe and Mail has corroborated through the Linyi Foreign Affairs Office that Feng was previously diagnosed with paranoid schizophrenia at a hospital in Tianjin in June 2019. Their daughter maintains that this initial involuntary admission was the husband’s way of preventing Feng from suing him for a domestic assault. Soon thereafter he had a change of heart and retrieved her from the hospital. However, The Globe and Mail also reports that Feng was again sent to the mental hospital in Linyi in both October 2019 and January 2020.
This time Feng’s husband has not relented. Their daughter believes that her father, a former Communist Party official who has recently gone into the real estate business, sees her activism as a threat to his career. He has received messages from his former supervisors in the local government about their dissatisfaction with Feng’s behavior. Given a real estate market in which good relations with government officials are essential, he might easily be motivated to silence a wife who espouses dissident views. In this sense, prior reports are not incorrect in saying that Feng’s confinement is the result of her political views. To be clear, though, it was her husband and not a government agency that decided to confine her, and preventing her further pamphleteering is only one of his possible motivations for keeping her confined. By their daughter’s report, we should recall, Feng’s original confinement was entirely in order to prevent her from suing her husband, and he has also threatened his daughter with mental confinement if she continues to advocate for her mother’s discharge.
Feng’s episodes of involuntary admission were probably illegal under China’s Mental Health Law, which only took effect in 2013. This law states explicitly that “voluntariness” is the principle of psychiatric admission; the sole exception that allows for – or even mandates – involuntary admission is when a patient has endangered or is about to endanger herself or others. To the best of our knowledge, Feng has never shown any indication of endangering anyone. Nevertheless, unfortunately, involuntary confinement of people, despite no evidence of threatened danger, keeps occurring. Reported cases of illegal involuntary confinement include a homosexual spouse who came out of the closet, an older college student who did not get along with his younger classmates, a nagging parent, and a cynical and rebellious adult child. According to a 2019 study by a group of Chinese psychiatrists, which sampled 3,864 involuntary admission (IA) cases in Shanghai, “Non-medical factors might be the main causes of the high IA rates in Chinese psychiatric institutions.”
Under Article 109 of China’s General Provisions of Civil Law, some formerly involuntarily confined individuals have successfully sued their guardians and psychiatric hospitals in local courts for violation of their personal freedom and personality rights, claiming damages for the harm inflicted. It is a welcome improvement in China’s legal system that its citizens are turning to judicial channels to deal with this type of dispute and that judges are beginning to favorably respond. In 2015, Chinese courts changed the filing process for civil and administrative cases from an application system to a registration system. This means that, with few exceptions, courts must accept and register the filing of a lawsuit. This is a dramatic shift from the previous situation, when courts were authorized to exercise discretion, reviewing filings as mere applications and preventing cases from entering the judicial system by simply not accepting or even responding to the paperwork.
Notice, however, that all the above-mentioned cases were brought by plaintiffs who had already been discharged from confinement. Feng is different. She is still incarcerated in a psychiatric hospital and is thus considered to have diminished capacity in civil matters. She therefore has to rely on her guardian to act on her behalf in order to handle matters like hospital discharge and lawsuits. Yet, in her case, the first-tier guardian is her husband.
The Mental Health Law offers three pathways to discharge: first, discharge at any time upon the patient’s request during voluntary hospitalization; second, discharge at any time upon the guardian’s request for involuntarily hospitalized patients who showed a risk of endangering themselves at the time of admission; third, discharge upon the hospital’s permission for involuntarily hospitalized patients who showed a risk of endangering others at the time of admission. The law further provides that, if necessary, the guardian shall handle the discharge paperwork for the patient.
Although Feng should not have been hospitalized in the first place, now that she is hospitalized, her way out is limited to the last two scenarios, which both largely rely on her guardian — her husband.
Adult guardianship in China has long attracted calls for reform. A nominal reform was passed in 2016, when the General Provisions of Civil Law provided that a guardian shall act in the best interests of the ward and shall respect the ward’s wishes, including not to interfere with matters that the ward has the capacity to handle independently. However, these requirements are generally not implemented because of the absence of clear and detailed instructions and procedures. In practice, once a person is diagnosed with “mental impairment” as determined by either one or two licensed psychiatrists, she is then in fact treated as having diminished capacity to handle civil matters. No judicial decision is required. What is in the best interests of the ward and what matters the ward can handle independently are left up to the guardian’s judgment.
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