Several major criminal cases involving people with mental health issues have occurred in the past few weeks, giving rise to a debate over whether it is time to amend the Mental Health Act (精神衛生法).
The proposed amendments concern mandatory hospitalizations. A decision once made by a review committee comprised of experts would now be made by a judge. The thinking behind this change is that judges should be the ones to make a decision to restrict a person’s physical freedom.
This thinking is simplistic and too general.
As part of the effort to restrict the spread of COVID-19 in Taiwan, anyone who might have come into contact with an infected person is required to isolate themselves. This is also a form of restricting physical freedom, with the person in question required to remain within the confines of a small room for at least 14 days, unable to leave at will, even when there is a strong likelihood that they have not actually been infected.
Why, then, is a judge not asked to decide on these cases, instead leaving the decision up to experts to sort out? It is because we all trust that experts do not abuse their power, and that concerns over the infringement of a person’s rights is outweighed by the imperative of safeguarding the community.
Also, the legal system would not be able to handle and make a decision on the large volume of cases within a reasonable timeframe.
Epidemic prevention legislation is governed by the Communicable Disease Control Act (傳染病防治法), which is similar to the Mental Health Act in the spirit of mandatory isolation and treatment.
Infectious diseases and mental health issues have been treated the same way since the Middle Ages in Europe, but back then medicine was not so advanced, and rights infringements were commonplace.
In modern society, and especially in Taiwan in the 21st century, infectious diseases and mental health issues are treated differently, and one rarely hears about these kinds of infringements.
In Europe, judges are involved in the decisions behind mandatory hospitalizations in 33 out of 40 countries, but are entirely absent from the process in the other seven countries. These include five northern European countries known for their robust human rights records. In the UK, only Scotland requires judges to be involved.
Although having neutral judges deciding upon mandatory hospitalization can reduce concerns over conflicts of interest, it complicates the process.
Taiwan once had more than 3,000 mandatory hospitalizations per year, but after the law was amended 14 years ago, this figure fell to 600. If judges are to be required to make these decisions, given how busy the courts are, this figure is sure to fall further.
This means that more mentally ill people who should receive treatment would be sent back into the community rather than be admitted to an institution.
The largest hole in Taiwan’s social safety net is the excessively high threshold for mandatory hospitalizations. The most serious problem in the current legislation is that self-inflicted injury is restricted to bodily harm, but in some places overseas, this definition includes the possibility of causing damage to one’s professional reputation or status, both of which can also lead to mandatory hospitalization.
Any concerns over abuses of power by experts could be alleviated by looking to northern Europe, where a judge is only involved if an extension to the mandatory hospitalization is required, or should the person involved apply for it.
The alternative is for expert committees to hand decisions on all mandatory hospitalizations to judges who have little knowledge of mental illnesses. This would only make matters worse.
Shen Chen-nan is a physician.
Translated by Paul Cooper
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