National Human Rights Commission, TaiwanNational Human Rights Commission, Taiwan

Recently, the Legislative Yuan held an extraordinary session to deliberate over amendments to regulations in the Criminal Code, the Code of Criminal Procedure and its Implementation Rules, the Rehabilitative Disposition Execution Act, and the Court Organization Act concerning the treatment of criminal offenders with mental health issues. In keeping with its mission to promote the protection of human rights, the National Human Rights Commission (NHRC) wishes to put forward the following specific recommendations:

1. Regulatory amendments pertaining to custody in mental health treatment facilities should comply with the requirements of the International Bill of Human Rights
   1. An upper limit to the period of custody should be clearly stipulated.

The versions of the draft amendment submitted for review by the Executive Yuan and Judicial Yuan stipulate that the period of custody may be extended upon expiration, and there is no limit on the number of extensions permitted. This could result in criminal offenders with mental health issues being placed under indefinite or even lifelong custody. In keeping with Article 9 (the right to liberty of person) and Article 14 (equality before courts and tribunals) of the International Covenant on Civil and Political Rights (ICCPR) as well as Paragraph 19 of General Comment No. 35 on the ICCPR, the NHRC recommends that extensions of custody only apply in criminal cases involving violations of major legal rights such as life or person, that an upper limit be set for the number of extensions allowed, and that an evaluation of the dangerousness of the offense, the mental, intellectual, and other faculties of the offender, and the potential for both recidivism and treatability be conducted before an extension is ordered. With regard to the very few cases where a psychiatrist determines the offender to be uncorrectable through medical intervention while in custody at a mental health treatment facility, the competent authorities should refer to the practices of other developed countries and design a set of treatment measures that strike a balance between human rights protections and the security of society.

1. 2. Court proceedings should include the participation of representatives from disability organizations.

In court proceedings involving extensions of custody, the presence of representatives from disability groups and organizations determined by the competent authority to be in compliance with General Comment No. 7 on the Convention on the Rights of Persons with Disabilities (CRPD) should be required. The inclusion of such representatives can help prevent the misinterpretation of facts and misapplication of the law during deliberations and therefore ensure that the rights of those under custody are safeguarded.

1. 3. Representatives from disability organizations should be included in evaluation committees for cases involving placement in a mental health treatment facility.

In the Executive Yuan’s version of the bill, the amended Rehabilitative Disposition Execution Act, if approved, will authorize the Ministry of Justice to formulate a separate set of regulations governing the establishment of custody evaluation committees and the selection of committee members. However, pursuant to General Comment No. 7 on the CRPD, bills and policies affecting the rights of persons with disabilities should be informed by the opinions of persons with disabilities and their representative organizations. It is the NHRC’s recommendation that representatives from disability organizations be included in any such evaluation committees, that committee members have the best interest of those under custody at heart when conducting evaluations, and that supporting measures be formulated in accordance with the United Nations’ Guidelines on the Right to Liberty and Security of Persons with Disabilities and International Principles and Guidelines on Access to Justice for People with Disabilities.

1. 4. The frequency and intensiveness of scrutiny by the committee should increase with each extension of custody

Extensions of custody constitute the restraint of personal liberty under Article 9 (the right to liberty of person) and Article 14 (equality before courts and tribunals) of the ICCPR as well as Paragraph 19 of General Comment No. 35 on the ICCPR, and thus should require review by an impartial court of law. With each extension of custody, the extent of infringement upon the rights and interests of persons with mental health issues increases exponentially. Therefore, to comply with the principles of reserved judgment and the due process of law, the frequency and intensiveness of scrutiny by evaluation committees should be increased, and justices should be required to take a more judicious stance in the evaluation process and the judicial review of the legality of each extension.

2. Reference should be made to the Guidelines on the Right to Liberty and Security of Persons with Disabilities in order to strengthen the supporting measures for judicial psychiatric hospitals/wards
   
   According to its Program for Strengthening the Social Safety Net: Phase II (2021–2025) announced on July 29, 2021, the Executive Yuan plans to establish six judicial psychiatric wards with 30 beds each and one 300-bed judicial psychiatric hospital as dedicated venues for accommodating offenders who are placed in mental health treatment facilities. The Ministry of Health and Welfare cited the experience of other signatory states in explaining the reasoning behind the establishment of these judicial psychiatric facilities. While such facilities are not an express violation of the CRPD in and of themselves, the NHRC is unable to determine from the above-mentioned plans whether the placement measures proposed by the Executive Yuan based on the level of “risk of violence” are sufficient to safeguard the fundamental human rights of those with mental health issues. As such, the NHRC calls for compliance with the CRPD in the amendment and for the protection of the various rights listed under the Guidelines on the Right to Liberty and Security of Persons with Disabilities—including the right to communication, right to informed consent, access to justice, right to reparation and redress, and right to the due process of law. Furthermore, it is the NHRC’s recommendation that the supporting measures for judicial psychiatric facilities be formulated with the ultimate goal of reincorporating people with mental health issues into society.
    
3. The Mental Health Act should be amended as soon as possible to complete the social safety net
   
   Paragraph 19 of General Comment No. 35 on the ICCPR states, “States parties should revise outdated laws and practices in the field of mental health in order to avoid arbitrary detention. The Committee emphasizes the harm inherent in any deprivation of liberty and also the particular harms that may result in situations of involuntary hospitalization. States parties should make available adequate community-based or alternative social-care services for persons with psychosocial disabilities, in order to provide less restrictive alternatives to confinement.” The current provisions of Article 41 (mandatory hospitalization) and Article 42 (emergency placement) of the Mental Health Act were ruled to be non-compliant with Article 14 of the CRPD and were placed on the priority review list by the Executive Yuan’s Committee for the Promotion of the CRPD. Taiwan is set to submit its 2nd Parallel Report on the CRPD for review this year, and the Executive Yuan should put forward a draft amendment and submit it to the Legislative Yuan for review as soon as possible.