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When I wrote Chapter Four of this new book, a lot of it flows from an article I’d done about four or five years before in the Israeli Law Review. When I did that research, it was kind of interesting to me. Most people know, or people who are interested in this whole general area, know that the former the Soviet Union, this was very common. And there were exposes, the World Psychiatric Association sends a delegation in the late 80s, early 90s, there were quite a few books written about it and articles. But China at that point nobody seemed to pay that much attention to, and it was pretty clear that the same kind of things were going on in China as were going on in the Soviet Union. Fast forward, the Iron Curtain fell, some of the abuses – not all – in the former Soviet Union had been remediated to some extent. But again what was happening in China was pretty much under the radar.

It became known, interestingly, with regard to what is seen as the persecution of the Falun Gong. Is it a political group? Is it a kind of exercise? Is it meta-physical? I can’t answer that but it seemed very, very clear to me and to most neutral observers that practitioners and adherents were being singled out, and they were being marginalized as mentally ill. One of the things, we’ll talk about it latter, is why do governments do this and I will discuss that in a few minutes but it seemed to me that China in many ways was paralleling

What is interesting to me is that in this new draft act , of which I am enormously ambivalent I should tell you, I think…and I have sent some comments to other people about it….I think there are some other things that are better than China has had before but an awful lot of it strikes me as very problematical. would not only not meet constitutional standards in a Western country but also I think pretty clearly does not comport with the UN Convention on the Rights of Persons with Disabilities which China has ratified.

It seems to me that this new law, Article 27 — about the disturbance of public order — should be a red flag. What does that mean? We are sitting here on the corner of West Broadway and Leonard Street and how far are we from Wall Street where there is an occupation going on that seems to be spreading. Is this disturbing the public order? One could read the pages on Facebook and an awful lot of American citizens think it is. Is something like this was being done in Beijing or Shanghai would, could everybody be dragged away to a psychiatric hospital? Under the strict language of the Act, yeah, it probably could.

EL: Well, in terms of that, and you sort of mentioned it in your answer. The Chinese government itself has the power under even the criminal law, arguably; I mean maybe it is not directly stated in the criminal law but they use the power to detain people indefinitely. Why do they choose to, for example Falun Gong and other dissidents, why do they choose to use a mental health analysis instead of using the criminal law when they are basically an authoritarian state. Why did the Soviet Union do that, why does China continue to do that?

MP: It seems to me that there are at least three main reasons for that Elizabeth, and that truly is a great question. First of all, there are always some, albeit minimal, procedural safeguards in the criminal process. They are not always adhered to. … I spent some time working in China with criminal defense lawyers and I was teaching them how to, pedagogically, how to do certain things but I also spent much more time learning and I realized that it is not a lot those of us who have practiced criminal defense work in New York or New Jersey would go “oh my God” but at least there is a something there. There is nothing there on the psychiatric commitment side. So that’s number one.

Number two, when there is a hearing, when there is an adjudication, there is usually a limit to the sentence. It may be a draconian sentence, it may be for many more years than we would think make sense. But at least there is a number there. Psychiatric commitment is, in these jurisdictions indefinite. And I should say, after the CRPD , the Convention is ratified, I don’t think indefinite commitment without clear judicial review passes muster under the international human rights law.

But the third I think is the most important. Because I think stigmatizes. We know that if we call somebody a mental patient, he will be discredited. And if he has political motives, that will mean, well, we can ignore them. I use this example, I think, in that book, about someone in Romania (when Romania was a completely authoritarian state) who was picked up, and his psychiatric charge was he was carrying a sign saying that the prime minister of the country must go; the , “Well if he thought he was serious that someone would listen to him, he must be crazy.” It’s a self-fulfilling prophecy. It’s a loop. But I think those three reasons together are really it.

EL: Right now, before…..I know they have the draft law published right now and it was opened for comments back in the summer, but before that. Right now how does involuntary commitment work ? Are there laws in place? Who makes the decision if an individual should be involuntarily committed? How does it work?

MP: The decisions is made basically by the State. Someone gets picked up; very, very often family will call and ask: take my relative and send him to the hospital. And there is no independent assessment. In 1985….I should say to your listeners, I have been a professor since the mid-1980s but I was a real lawyer before that. I practiced 13 years both as a criminal defense lawyer and as an advocate for persons with mental disabilities. I filed an amicus brief in the U.S. Supreme Court in 1985 in a case called Ake v. Oklahoma in which the Supreme Court ruled that a person who is indigent had a right to a psychiatric evaluation at state expense if he was putting forth the insanity defense. The idea being that this is something that can’t simply be done, can’t be decided on the say-so of the state doctor.

In China it is always done on the say-so of the State doctor. There is virtually no sense of independence. There is also no lawyer appointed. One of the issues that I think is really important; we know this, we know that both among the United States and in other nations, serious mental health reform only happens when there are lawyers assigned to represent patients. I know that sounds very lawyer-centric. Pardon me, I plead guilty to that. But if you were to go to the United States and go state-by-state and see where has there been reform, where has there not, it’s an easy question. Where have there been lawyers like in New York, the Mental Hygiene Legal Service, like in New Jersey, the Division of Mental Health Advocacy law office, like in DC, the Public Defenders Service/ Mental Health Division, that’s where it happens. In other nations, where you have it: Israel is a nation that has a robust public defenders office doing these things and they are enormously successful. Where there are no lawyers, reform doesn’t happen.

There are no lawyers doing these cases on the ground in China. I believe that after ratification of the CRPD, this needs to happen. Commitment must be subject to the judicial process at every step. That is demanded by the CRPD and it’s not in the draft much less in the older law.

EL: So to clarify, the draft mental health law that has been proposed has no provisions for a lawyer to be appointed.

MP: Correct.

EL: And there is no independent review of a state’s decision.

MP: One can ask for a review but it is absolutely, utterly optional. There is no sense that it is obligatory, it is not mandatory.

EL: Now, in terms of involuntary commitment, you say that the decision is made by the state. Would that be – what division of the state? Is that the Ministry of Public Security or is it not clear?

MP: It’s not clear. You have sort of two different ways it could happen. The Ministry of Public Security and

An Ankang Hospital in China
this whole Ankang hospitals that are really shrouded….I mean, I heard about them….oh my goodness…I’d been doing mental disability work my whole career. I’ve been doing international human rights mental disability work for 11 years. I’ve been going to Asia for nine years. But it wasn’t until about four or five years ago that I even heard about these hospitals. And they operate…there is virtually no way to find out what’s going on in them and that ministry is Public Security. The others go through the Ministry of Health, I believe.

EL: So the Ankang hospitals are within the Ministry of….?

MP: Of Public Security. And those involve people who are seen as being criminally dangerous. It’s a very, very murky line between criminality and other kind of dangerous behavior. Very often, it’s what you choose to call it. But there is very little, there is no review, and there is very little outsider involvement. It’s like a world in and of itself.

EL: And in terms of that line between criminality and involuntary commitment….One of the things that is being heavily criticized both by foreign scholars and even Chinese legal scholars is this continued use of “disturbing public order.” And that’s included in the new draft mental health law. My question is….just to get to the people who write this law. Is there any sincerity in the use of this term? Does the Chinese government believe that….I mean is there sincerity in the belief that perhaps the expression of a different opinion is evidence of mental illness? And how do they get doctors on board with that?

MP: It’s very hard for me to tell what was in their minds. There is no record of this. And you can come

Occupy Wall Street - Political Protest or Endangering Public Saftey?
with multiple explanations Elizabeth. On one hand you can look at it just plain meaning. Endanger public safety means somebody is standing in the middle of a main street screaming at cars, right? That could cause an accident. And that you and I would agree might endanger public safety. And that’s one possibility.

… In this study that was done by the Equity and Justice Initiative of Psychiatry and Society Watch that was published recently which analyzes this commitment system in China, it is replete with example of people who were picked up and psychiatrically hospitalized because basically they were seen as dissident. It’s an over-used word. I am very concerned in any jurisdiction but especially, especially, in a jurisdiction that has this kind of track record of locking people up for disagreeing politically. I am very concerned that this kind of language, like in Article 27, is far too overbroad and I see that as a really troubling issue.

Why do state psychiatrists go along with it? This is something I have been trying to deal with for 20 years in terms of thinking about it and you don’t know. I remember reading one study in which the researchers said – well you know if we went along for the ride we would get more vacation days or get a nice home at the beach – something like that. Which sounds so depressingly banal, right, but it also in fact may be so.



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