In early July, a Chinese woman named Dong Yaoqiong streamed a video of herself throwing ink at a portrait of China’s leader, Xi Jinping. In the video, Dong explains that the gesture was intended to “say publicly that I oppose the tyranny of Xi Jinping’s dictatorship and the brain-control oppression imposed by the Chinese Communist Party.” A little over a month later, Dong suffered a different form of brain control. According to Radio Free Asia, she has been confined to a psychiatric hospital in her native Hunan.

Every day in China, hundreds of people are involuntarily confined in mental health facilities, some through their involvement in criminal cases, many more via the government’s civil commitment processes. Whether, how, and how long to detain the seriously mentally ill is, to be sure, a worldwide problem of increasing gravity. In China, where the government employs many types of detention, these issues have proved to be particularly troublesome.

Last year, over four years after China’s first mental health law took effect, the situation received some public attention when the story of one victim’s eventual triumph over long-suffered injustice appeared in China’s media and was later turned into an award-winning short story and optioned for a film. Xu Wei, a 50-year-old man, regained his freedom after 15 years of involuntary confinement for psychiatric treatment in a Shanghai psychiatric hospital.

Xu’s battle was not easy. In 2001, his family first sent him to a psychiatric facility for one year of involuntary hospitalization. The grounds for detention was his unusual persistence in filing petitions against various government agencies because of perceived injustices. One year after Xu was discharged from the hospital under the guardianship of his father, his family again institutionalized him against his will, and the hospital diagnosed him with schizophrenia. While in the hospital, his father passed away, and guardianship was transferred to Xu’s brother, who refused to take him home after Xu again became eligible for discharge. According to a hospital doctor, Xu, with the aid of a guardian’s supervision and prescribed medicines, was then able to resume normal life. Yet he remained in this second detention for 14 years while four lawsuits brought by Xu or on his behalf stimulated three further psychological evaluations. Finally, after Shanghai promulgated its own mental health regulation in 2015 and just after the National People’s Congress enacted General Rules of Civil Law in March 2017, a third medical evaluation determined that Xu had completely regained civil legal capacity and could therefore be discharged without a guardian.

Like Xu, many detained Chinese psychiatric patients are able, with proper medication, to live normal lives, but are instead trapped in psychiatric wards for years, even for life. A 2001 World Health Organization report estimated that “one in four people in the world will be affected by mental or neurological disorders at some point in their lives.” In 2016, the People’s Daily, the official newspaper of the Chinese Communist Party, stated that around 100 million Chinese have various levels of mental illness. How to properly treat such huge numbers is a formidable challenge.

According to China’s Mental Health Law, people can be admitted to a psychiatric hospital through two paths: generally, via voluntary admission and exceptionally via involuntary admission. In both cases, in-patient therapy is mandatory when a person is diagnosed with a severe mental disorder and has inflicted or could inflict injury to him or herself or others.

A voluntary patient may request official discharge at any time, and the medical establishment is required to consent. However, if the commitment is involuntary, patients can be released only to the supervision of their guardians except in the relatively rare instances when they are found to have fully regained their civil legal capacity, as Xu ultimately was.

Involuntarily committed psychiatric patients, especially those who have been thought to be possibly dangerous to others, have to overcome many obstacles before they can be discharged, including obstacles from their guardians. First, their mental health has to be proved medically sound and suitable for discharge. Second, most have to have a guardian who is able and willing to pay accumulated medical bills, and to take the responsibility of future care and supervision. This requirement can be very hard to meet for the homeless and the poor. Although the Mental Health Law and the newly-promulgated General Rules of Civil Law provide that rural village committees and urban street offices can act as guardians of the mentally ill who do not have guardians, these local officials usually face the practical restrictions of limited finances and capacity and often try their best not to get involved. The third and probably most common obstacle is, ironically, that family members for various reasons frequently oppose the professional decision that the patient has recovered and is fit for discharge. They often either refuse to show up at the hospital or seek to refute the discharge diagnosis. They may not want their normal lives interrupted, or sometimes, for example in cases of inheritance, they may want to continue enjoying property that belongs to the detained person.

This is an area in which the possibilities for arbitrary detention are great, and China could do much more to protect individuals’ right to freedom. Although the provisions of the Criminal Procedure Law and the Security Administration Punishment Law are insufficient, they at least purport to provide some basic protections for alleged criminals and minor offenders, respectively. Even the new, frightening Supervision Law, which, wholly apart from the psychiatric confinement system, empowers a new government agency to detain officials and government-related managers for a broad variety of suspected misconduct, prescribes time limits, albeit long ones, for holding those subjected to incommunicado detention. But the Chinese government has been widely criticized for using psychiatric wards and other low-visibility institutions including drug and prostitution rehab centers, “political re-education” camps, and “black jails” as largely unregulated methods for imposing arbitrary detention.

There is no role for a truly impartial third party in the current procedure for involuntary psychiatric commitment. Under the Mental Health Law, the decision of two certified psychiatric physicians is sufficient to institutionalize a patient, potentially for the rest of his or her life. No hearings and judicial approval are required. Thus, following the Soviet model, involuntary confinement in a psychiatric hospital at the request of the authorities has proved to be a convenient instrument for the suppression of political dissidents and human rights activists. According to the most recent report of the Chinese NGO Civil Rights and Livelihood Watch, China’s medical profession has “continued to collude with the authorities in carrying out psychiatric incarceration of critics of the government.”

The Mental Health Law itself is too broad to be properly implemented. “Mental disorder” is the illness addressed. Unfortunately, the law vaguely defines it as “a disturbance or abnormality in perception, emotion, cognition or other mental activity, brought on by any cause, which results in obvious mental suffering or a deficit in abilities such as social adjustment.” Despite the breadth of this definition, undoubtedly, not all of the over 100 million Chinese reportedly suffering from some level of mental illness need to be involuntarily hospitalized. Yet lack of due process in such important decision-making jeopardizes millions of people’s basic right to freedom from arbitrary detention.

Xu Wei’s case was unusual. If he had not demonstrated the same zeal to challenge his incarceration that he had shown in petitioning against other injustices, which is what originally got him into trouble, he would still be confined. Moreover, although few Chinese lawyers are experts in this field and most people do not have access to any lawyers, Xu managed to gain the assistance of an able lawyer, Yang Weihua, who spent the last five years of Xu’s detention working to win his freedom. An earlier lawsuit that Xu had brought against his brother for infringing his right of personal freedom illustrated the complexity of the legal obstacles confronting plaintiffs in cases of this sort. The court rejected Xu’s claim on the grounds that he lacked the eligibility to sue due to his impaired legal capacity as a hospitalized psychiatric patient. That view, of course, would deny relief to many illegally-confined people. Ultimately, Yang successfully convinced other judges to mandate the third medical evaluation that resulted in Xu’s release.

Even with the new General Rules of Civil Law, it is still unclear what recourse a detained patient has when a guardian is not acting in the patient’s best interests. The new law does not authorize the involuntary patient to sue the guardian. Instead, only other individuals or organizations that might be eligible as potential guardians have the right to file a case against the infringing guardian. Also, the courts cannot necessarily be relied on to protect involuntary patients from arbitrary administrative detention. Some scholars in China have long criticized the Chinese judiciary for showing exaggerated deference toward medical and forensic evaluation of issues that the scholars believe should be decided by the courts, and the decisions of China’s judges are notoriously subject to Communist Party direction and the distortions of corruption.

Despite China’s rapid economic growth, the National Mental Health Work Plan (2015-2020) reports that for every 100 thousand people there are only 17.1 inpatient psychiatric beds and 1.49 certified psychiatrists. Restricted by the shortage of such public health resources, hospitals may not be able to serve as many psychiatric patients as necessary. At the same time, as previously mentioned, many hospitalized patients are unable to obtain deserved discharges because of unpaid medical bills, and greater insurance coverage and community mental health services are urgently required.

In dealing with these difficult problems, the Chinese Government must remain mindful of its international obligations. It long ago ratified both the United Nations Convention Against Torture and the International Covenant on Economic, Social and Cultural Rights, which both require adherence to higher procedural and substantive standards than China currently observes. One decade ago, it ratified the Convention on the Rights of Persons with Disabilities, which imposes more detailed rules regarding the mentally ill. In 1998, it also signed the International Covenant on Civil and Political Rights, which enshrines the universal right to freedom from arbitrary detention. We hope Beijing will finally ratify this core major human rights document and take further steps to eliminate the abuses accompanying involuntary psychiatric confinement.

When Xu Wei finally walked out of the psychiatric hospital where he had spent roughly half of his adult life, some Chinese media reported his belated victory with the headline “Chinese version of ‘One Flew Over the Cuckoo’s Nest’.” If Xu’s story actually becomes a movie, it will surely raise public awareness of the importance of further reform of both the country’s mental health and justice systems.