In China, the recognition of legal capacity is equated with mental capacity assessment. This allows disability to form the basis for depriving or denying a person legal capacity. The laws differentiate persons according to their mental states and are discriminatory as they presume that persons with mental disabilities do not have the ability to exercise legal capacity. In practice, whether persons with mental disabilities are able to understand their own actions is frequently based on a medical assessment of mental capacity.
The guardianship system places persons with disabilities under the substituted decision-making regime. As a result, persons with disabilities are unable to make decisions concerning themselves based on their own will and preference.
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The Mental Health Law that came into force in 2013 has been perceived as an attempt to prevent involuntary treatment and increase the involvement of persons with mental disabilities. This legislation, to a certain extent, restricts the authority of a guardian. For example, under this legislation, a guardian has no authority to restrict the personal liberty of a person with mental disability. In other words, a guardian does not have authority to detain a person under guardianship at a mental health facility or force such person to undergo mental health treatment. However, many of the provisions in the Mental Health Law still underscore the powers of guardians to make decisions for and on behalf of a person with mental disability. While the Mental Health Law allows a person with mental disability to bring a legal action, this is not carried out in practice given the related requirements under China’s civil procedure law.
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Certain quasi-administrative procedures further aggravate the negative impact of the guardianship system. For example, the Disabled Card (regardless of the type of disability) issued by the China Disabled Persons’ Federation has a column to identify the guardian of the person with disability. However, there is no law that requires persons with physical disabilities to have a guardian. In practice, persons with cognitive or intellectual disabilities must identify their guardians under that column. Alternatively, for persons with visual impairment or similar disabilities, it is strongly recommended (if not mandated) that such persons also identify a guardian. Moreover, it must be noted that under most circumstances, the family of a person with disability can apply for a Disabled Card without the presence or knowledge of such person. The requirement of identifying a guardian is, in practice, a deprivation of legal capacity.
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Once legal capacity has been deprived, the daily lives of persons with disabilities will be limited in many aspects. For example, they will lose the ability to conclude contracts or conduct other social transactions. Depriving the legal capacity of persons with disabilities also limit other fundamental rights, including the right to vote, the right to marry and found a family, reproductive rights, the right to establish and terminate intimate relationships, and the right to give consent to medical treatment. As persons with disabilities are unable to exercise legal capacity, their rights can be easily infringed. Often, persons with disabilities are involuntarily detained in mental health facilities or forced to undergo mental health treatment. Further, frequently, persons with disabilities are deprived of their property. Despite these infringements on their rights, persons with disabilities are unable to seek compensation or redress due to the restrictions placed on their legal capacity.
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