Xu Wei’s Long Road To Freedom

Xu Wei, a patient incarcerated for over 14 years in Shanghai’s Qingchun Psychiatric Rehabilitation Hospital, finally won his freedom on 27th September 2017.  This case, often hailed as the “first case” under China’s new Mental Health Law (2013), has a long and complex history.

In 2003 Xu Wei was admitted to hospital after an argument with his father. He was diagnosed with paranoid schizophrenia. After the death of his father, legal guardianship passed to his older brother, Xu Canxing, who exercised his “right of guardianship” by repeatedly refusing to allow Xu Wei to be discharged, claiming that he was “too busy” to look after him. For over seven years the hospital upheld Xu Canxing’s decision.

In May 2013 Xu Wei began a lawsuit with the support of lawyers Yang Weihua and Huang Xuetao (of the Equity and Justice Initiative), to exercise his rights under the new Mental Health Law and seek discharge. Under the new law limitations were placed on involuntary commitment, restricting it only to cases where patients were deemed to “pose a threat to themselves and others”. Doctors confirmed that Xu Wei posed no such threat.

The defendants in the case were Xu Wei’s brother, Xu Canxing, and the Qingchun Psychiatric Hospital. In December that year the Shanghai Minhang District Court notified Xu Wei that his case had been lodged. This was the first case of its kind brought under the new Mental Health Law. The case subsequently received much publicity – including a documentary broadcast on state TV – which raised important issues about China’s mental health institutions and the injustices of guardianship. The documentary revealed a shocking picture of conditions in Shanghai’s psychiatric institutions and showed how guardianship is routinely abused, resulting in the long-term denial of basic rights and freedoms. It also revealed inconsistencies between the Mental Health Act and long-standing practice. Even though the new Law upholds the system of guardianship, it includes provisions to curb involuntary commitment and protect the rights of the individual. The fact that Xu Wei’s case was lodged at all was a tacit acknowledgement of Xu Wei’s legal capacity. A medical assessment by a different psychiatric hospital in Shanghai confirmed that Xu Wei did indeed have “mental capacity for civil action”.

Regardless of this, the court’s verdict, announced on 14th April 2015, ruled against Xu Wei and in favour of his brother and the hospital. Xu Wei’s lawyers prepared an appeal and EJI collected the views of numerous informed parties to help construct the most effective case. However, the hearing at the appeal court later that year was equally unsuccessful: it seemed that political pressure might have come to bear: despite the new Law, the Shanghai authorities seemed unwilling to set a precedent by challenging the system of guardianship. A further appeal by Xu Wei was rejected even before it came to court.

Despite all these setbacks, Xu Wei, Lawyer Yang and EJI continued to pursue the case, requesting the intervention of the Judicial Appraisal Centre of the Institute of Forensic Sciences of the Ministry of Justice. On 6th July 2017 this august body at last gave its decision, stating that: “The patient, diagnosed with schizophrenia, no longer suffers seriously from the condition and should therefore be considered to have full mental capacity for civil action”. This decision appears to have trumped all former court Verdicts and the hospital quickly agreed to have Xu Wei discharged in the presence of his acting lawyer.

Xu Wei’s release was quickly followed by that of his girlfriend, Yingchun (also a long-term patient in Qingchun Psychiatric Hospital), and the couple now plan to set up home together. They have modest savings and some income from welfare benefits. Xu Wei has been invited to do temporary self-advocacy work with a local NGO, which should provide him with some income and a supportive community. But he is now 51 years old and, after so many years incarceration, he faces big challenges in rebuilding his life.

Stephen Hallett 3rd Oct 2017





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