Research On The Abuse Of Custody Regulation By Close Relatives Of Mental Patients

To avoid citizens'"being recognized as mentally ill person" and strengthen mental patients' treatment remedies to protect the rights of mental patients which refers to healthy living. Having experienced 27 years of long legislative process, "People's Republic of China Mental Health Act of People's Republic of China" finally come to the public's sight, tort liability will violate the criminal law and get sanctions. Being lacking of legal norms, there are still many cases in which people are recognized as mentally ill person in practice, those normal persons who should not be treated finally get treatment as mental patients for a variety of reasons. The treatment for mental disorder persons may involve many different issues, such as mandatory health, personal freedom, honor decreasing; one point is quite clear:for those who constitutes a crime, he/she will be held criminally responsible according to the law. This article is written after the pass of" Mental Health Act", the problem will focus on the regulation of custody for the close relatives of those mentally ill patients, aiming to better protect the rights of mental patients from this perspective.The first part will overview the custody of close relatives, conduct an analysis of close relatives, guardianship and custody to make the meaning of close relatives' guardianship become clear. Guardianship for close relatives of mental patients, under the conditions of the existing legislation, is that the spouse, parents, children, siblings, grandparents, grandchildren, and other close relatives are supposed to guard the personal and property rights for psychiatric person without civil capacity or with limited capacity, and act civil acts and conduct civil proceedings. When exercising custody, if the close relatives breach the principle of protecting the interests for the guardians, and abuse liability and alternatives, they will take the responsibility.The second part of the paper will conduct a empirical analysis against the concept of guardian abuse.Firstly, paper will give a affirmative evaluation on the progress of the new law, especially establishment of the "involuntary hospitalization principle" which shows substantial progress in this area.To safeguard the patients' own interests regardless of the starting point of custody or treatment methods is reasonable because of the ward-centric legislation. Following closely, paper will then clarify the concept of the abuse guardianship of close relatives, and combining with the cases, paper will analyze the legal provisions of the "People's Republic of China Mental Health Act"and conclude that there are still some undesirable issues, in addition to chronic difficulties, some problems still can not be properly dealt with, despite having experienced a long legislative process to work out the relatively reasonable law which can adjust to China's national conditions and the legislative status quo. As the guardianship of close relatives is too large which has been recognized by the new law, relatives rights and ownership of content still has custody of likelihood, and this will lead to a confusion, mental patients' right to appeal to the law will be difficult to achieve because of the lack of practical interoperability. Moreover, the right also dose not have a time limit. The most prominent problem is that the new law has not established the mechanisms for judicial review, the justice's final declaration of the right has not been reflected in the new law. These problems are likely to produce problems after the legislative.The third part of the paper will discuss and make recommendations on the regulation system of guardianship for close relatives. At first, mental patients are a vulnerable group. The fundamental purpose of regulating close relatives' custody is to protect the interests of the mentally ill persons.The paper will conduct a brief analysis of the particularity in protecting the rights of mental patients focusing on providing the direction guidance for the system construction. Secondly, after learning from other countries' legislation on this issue and solutions, the paper will provide a viable system of horizontal comparison for the next step of our legislative and practical work. Last but not least, paper will try to propose countermeasures and build regulation mode for close relatives' guardianship on quite a number of problems by the combination of the analysis of second part. Finally, the right to appeal to the law is the last barrier, so to improve the mental patients' right to appeal is quite necessary and it needs special instructions.