Article 14: Liberty and security of the person

Mandatory hospitalization regulated by the Mental Health Act indeed a form of deprivation of liberty of the person (in response of Paras. 98-103)

120. According to Paragraphs 98 and 99 of the State Report, the government claims that “no one in Taiwan shall be deprived of his/her liberty because of their disability”, and justifies the arbitrary detention of persons on medical grounds under certain conditions in the Mental Health Act by interpreting the ‘mandatory treatment’ as one necessary measure to protect the right to health of such persons with a mental health condition. We submit that this interpretation is not only contrary to the fact but the State’s obligation under Article 14 Paragraph 1(b) of the CRPD that persons with disabilities ‘are not deprived of their liberties unlawfully or arbitrarily”.

121. The “Mental Health Act” allows for the arbitrary and a forced detention of a person in a medical facility who has been assessed by a ‘specialist physician’ to be at risk of ‘self-harm or harming of others’ against his/her will and wishes. Despite the Act providing for a procedure for the person detained to seek relief after their detention (for example, the person detained or their legal guardian has the right to ‘petition the court’ for a ruling to cease emergency or mandatory hospitalization), we submit that the existence of a procedural process to seek relief after detention does not justify the position advanced by the State Report in para. 98. that no one would be deprived of his/her liberty because of disability. this is done for the protection of the person detained.

122. We maintain that the compulsory detention policy itself constitutes discrimination against PWDs, contrary to Article 14 of the CRPD. We would remind the Government to pay attention to the “Guidelines on Article 14 of CRPD” adopted by the United Nations Committee on the Rights of Persons with Disabilities in September 2015. Paragraph six of the Guidelines makes it clear that there is an absolute prohibition of mandatory detention on the basis of a person’s actual or perceived impairment, even when State legislation provides for “other reasons for their detention, including that they are deemed dangerous to themselves or others.” The Paragraph points out that this is “incompatible with Article 14, while it is discriminatory in nature and amounts to an arbitrary deprivation of liberty”. The government should adopt a working schedule to reform the Mental Health Act to ensure that it is in compliance of the CRPD.

Mental Health Act falling into a measure of social control

123. The compulsory detention provisions within the “Mental Health Act” have been used by authorities to control public for social security reasons, going beyond the ‘protection’ objective of the Act.⁴ This is contrary to the conditions placed in the Act.” Persons and those who are not suffering from any mental issues got detained without having criteria of the Act met even those who are not suffering from any mental health issues got detained, as their liberties were arbitrarily deprived. the liberties of these individuals. For example, in 2014, a youth was arbitrarily detained under the Act after visiting Cheng Chieh, the perpetrator of the 2014 Taipei Metro Attack that resulted in four deaths and 24 injuries, in prison and the youth was questioned by police and placed in forced medical detention by Department of Social Welfare. He was only released after the petition of third party advocates that the detention did not fit with the conditions set by the Act. Similarly, in 2016, following Metro attacks in Taipei, another individual (搖搖哥) who are often seen around the National Cheng-Chi University was detained and placed in medical facilities by police and Department of Social Welfare for no apparent reasons. other than vague complaints by pedestrians.⁵ After strong advocacy effort and petitions to the court by NGOs and a court ruling that the detention was in contravention of the conditions required under the Mental Health Act as well as the detained person himself expressed his unwillingness of being hospitalized, he was finally released the next day. Both of these cases involved individuals who was not harming themselves or others, nor did they possess the risk to do so. These cases demonstrate a callous willingness of the authorities to use arbitrary deprivation of liberty under the guise of ‘mental health protection’ to maintain public "peace and security."

124. Paragraph 63 of the Concluding Observation and Recommendation adopted by the International Review Committee in January 2017 states: “The Review Committee recognizes that the compulsory hospitalization for the allegedly mentally ill in accordance with the Mental Health Law is not merely a medical matter. The Committee received information that it has been abused on occasion as a measure for the arbitrary detention of controversial persons but not the mentally ill. It recommends that the procedures for compulsory hospitalization be revised in several respects to assure confined persons’ immediate access to fair administrative and judicial reviews, including habeas corpus. Furthermore, the Legal Aid Foundation should revise its requirements and procedures in order to facilitate the earliest opportunity for detained persons to receive legal assistance.” The Government should take a leading role in increasing public awareness and understanding of people with mental health disabilities. This will avoid the public abusing or misusing the existing notification mechanisms due to fear and stigmatization, which leads to an exclusion of people ‘suspected to be a mental disability’ simply because they were ‘acting strangely’ or seemingly insane.

125. The Government should comment and reflect on the procedural deficiencies of compulsory detention or hospitalization of people with actual or suspected mental health disabilities:

     1. Frontline police and rescue squad personnel are often forced to deal with public reporting of someone suffering from mental disabilities, without the training and capacity to adequately assess whether the person has harmed themselves or others, the risk of self-harm or harming others, or their risk factors and motivations. This can further exacerbate the fear, stigmatization, and mislabeling of persons with mental disability by the general public. We request the Government explain and comment on whether frontline police and rescue squad staffs are trained and know that they will notify local health department officials. The Government should also examine whether local health departments have a sufficient number of social workers and monitoring staff available to ensure sufficient assistance can be provided on top of their daily community support work.

     2. The Mental Health Act stipulates that the need assessment for compulsory hospitalization requires the agreement of two medical specialists. While this is motivated by the desire to protect the right of the person being detained, in that there is a cross-checking mechanism to ensure the decision to detain is absolutely necessarily. However, the hierarchical structure of Taiwan’s medical profession, where decisions of senior doctors often cannot be challenged by junior doctors and the patients themselves, results in that this ‘safety mechanism’ cannot be meaningfully utilized. If the medical professionals themselves don’t have an understanding and awareness on human rights, there will be additional restrictions or further forced medical procedures being placed without the person’s consent.

     3. The “Mental Illness Mandatory Assessment and Community Treatment Review Committee” (“The Review Committee”) is made up of medical professionals, family members, and legal professionals. However, the appointment of the Review Committee members lacks openness and transparency, as well as lacking the participation of the persons who is the subject of compulsory hospitalization. The problem of recruitment leads to unwarranted weight on the opinions of the medical professionals while ignoring the views and voice of the persons themselves. Existing cases have demonstrated that those who are vulnerable to multiple levels of discriminations (for example, a mental disorder on top of being a minority on sexual and/or gender identities minority such as transgender or intersex person) are often lumped in with the majority group by the Review Committee, ignoring their specific multi-level vulnerabilities.

Not all persons subject to compulsory hospitalization are able to file petitions to contest such measures (responding to Paragraph 126 of the State Report)

126. According to statistics from the Department of Mental and Oral Health, Ministry of Health and Welfare, although the number of compulsory hospitalization cases submitted to the Review Committee has gradually decreased, the approval rate remains high at 90% or above (See Table 14.1). However, under the Mental Health Act, hospitals have the authority to forcibly detain patients for up to five days without the detention constituting ‘compulsory hospitalization’ as defined by the Act. This type of detention will therefore not count as part of the department statistics; thus we would suggest the reported number by the government paints the process in better light than is actually the case.

127. The State Report seems to imply that the enactment of the “Habeas Corpus Act” in 2014, giving persons with mental disabilities the right to direct petition to the court regarding their detention, have led to the decrease in the number of compulsory hospitalization and arbitrary deprivation of liberty cases. We submit that the two are not necessarily correlated as other reasons could have contributed to the decrease in the number of compulsory hospitalization cases as determined by the Review Committee. While it is possible the Review Committee have strengthened their review standards under the guidance and monitoring of human rights groups, it is also possible that the hospital and the clinic pressuring the patients into signing consent form to say that they were voluntarily admitted into the hospital. These practices biased the number of cases that are submitted to the Review Committee.

128. In practice, it is extremely rare for persons compulsorily hospitalized under the “Mental Health Act” to petition their case through the courts process. It is rare to receive a positive outcome for the following reasons: Many of the persons with mental disabilities person detained under the “Mental Health Act” are also restricted in their ability to communicate to the outside and to meet with legal representatives. It is very difficult for detained person to petition to the courts without the assistance of in hospital social workers or other help. The petition application process and legal aid assistance have a very high threshold that is difficult to meet, making it difficult to obtain legal help throughout the petition process. The “Habeas Corpus Act” states that the court shall base its review of the legality of the arrest or detention on the legal basis, the alleged factual circumstances that have given rise to, and the procedural legality of the arrest or detention. The Act does not consider whether the petitioner was actually arrested or detained, or whether the arrest or detention was necessary. This leads to the courts in most cases only consider the procedural legality of the detention, and completely ignoring whether the deprivation of liberty was, legitimate, appropriate, and necessary in their consideration.

129. We would recommend:

     1. The Ministry of Health and Welfare should properly consider Article 14 of the CRPD and it the Committee’s Guideline on Article 14 providing absolute prohibition of detention on the basis of impairment. It can no longer rely on the reason of protection and treatment to justify the deprivation of liberty of a person with mental disabilities.

     2. If an absolute prohibition cannot be achieved in the short term, the Government should amend the Mental Health Act in accordance to Article 14, Paragraph 1(b) of the CRPD, as well as Article 8 of the Constitution of Taiwan to ensure consistency with the principle of legal reservation by the judiciary. Decisions to deprive a person of their liberty through compulsory hospitalization should be made through proper judicial process, the Judicial Yuan should collaborate closely with psychiatric medical professionals and representative groups to create a Mental Health Court, allowing for proper judicial scrutiny of every case. This will avoid and prevent any compulsory hospitalization that is solely done as an expedient way of achieving public and social security but not medically necessary.

     3. Mental health institutions should adjust its administration process to allow patients sufficient communication channel with the others as well as upholding their right to seek and meet with their legal representatives, the same right that is afforded to those under state detention. The Legislative and Judicial Yuan should aim to strengthen the review process of habeas corpus cases to critically examine the need and necessity of every restriction and deprivation to a person’s liberty.

Compulsory hospitalization is not the only option. The State should explore alternative treatment options (response to Paragraph 191 of the State Report)

130. The current process of compulsory hospitalization is by default triggered when a person who has a mental disability or suspected to have a mental disability shows symptoms that would be seen by medical professionals as indicating a mental disorder. While we acknowledge the importance of making medical care and support accessible to people who have mental disabilities, compulsory hospitalization should not be the only option available in accordance to Articles 14 and 25 of the CRPD. The State Reports pointed out that Article 8 of the Mental Health Act required the government to set up cross agency community care, support, and rehabilitation framework, but there has been a general reluctance by the Ministry of Health and Welfare and other government departments to invest sufficient personnel and financial resources to develop alternative and multidisciplinary treatment and rehabilitation support options for people with mental disabilities.

131. Under the current regime that lack sufficient supporting framework, most families of persons with mental disabilities have to take on the burden and responsibility of caring and supporting their family member who suffers from mental disabilities. When family members who find themselves unable to continue to provide such care, their only option is to send their family member to mental health institution through the reporting mechanisms to health authorities to exchange some amount of respite. Medical professionals often file for compulsory hospitalization for persons suffering from mental disabilities because they don’t believe the community has the appropriate resources and capacity to provide adequate care. Many patients are forced into the compulsory hospitalization scheme when they can be adequately cared for and supported through appropriately resourced community schemes and would not require full time care in a hospital.

132. The Ministry of Health and Welfare should take the lead in re-assess and appropriately re-distribute resources that are available for mental health treatment and support in order to establish alternative treatment and support mechanisms and respect the choice of persons with mental disabilities. One example would be to invest in capacity building of peer supporting network and groups to meaningfully realize CRPD Article 19’s goal of allowing persons with mental disabilities to live independently and their inclusion in the community. Further, the Ministry of Health and Welfare could consider following the example set by some Western countries where a comprehensive transitional unit combining medical professional, social workers, and psychologist support to allow persons with mental disabilities who are at a high-risk phase or in an emergency situation to receive support beyond the capability of the community but without triggering the process for compulsory hospitalization.

4. After the Taipei Attack that occurred in May, 2014, a youth went visit the perpetrator in prison. He was questioned by police and placed in forced medical detention by Department of Social Welfare. He sought help from the society in the medical center. There was a petition for habeas corpus made by a third party. He was only released after the Court ruled that neither of the two major criteria of forced hospitalization “severe patient” and “imminent danger” was met.

5. In 2016, the following day of a random manslaughter in Neihu, Taipei, an individual (搖搖哥) who are often seen around the National Cheng-Chi University was detained and placed in medical facilities by police and Department of Social Welfare for no apparent reasons other than vague complaints by pedestrians. After strong advocacy effort and petitions to the court by NGOs and a court ruling that the detention was in contravention of the conditions required under the Mental Health Act as well as the detained person himself expressed his unwillingness of being hospitalized, he was finally released the next day.