Citation

Salzberg SM. Int. J. Law Psychiatry 1991; 14(3): 137-168.

Affiliation

University of British Columbia Faculty of Law, Vancouver.

Copyright

(Copyright © 1991, Elsevier Publishing)

DOI

unavailable

PMID

1864686

Abstract

The legislative response to the crisis in the Japanese mental health care system has, on the one hand, been prophylactic. The major thrust of legal reform has been to prevent the human rights abuses which occurred all too easily under the former structure of legal regulation. Thus, a new category of admission, voluntary admission, has been recognized and promoted as the preferred hospitalization procedure. Standards for the physical treatment of patients have been promulgated, and procedures instituted for review of periodic reports and requests for discharge or improved physical treatment, with notification given patients as to their rights under the law. The model chosen for this new system of safeguards is far from a thorough-going legalistic model. Patients have no right to a judicial hearing. Even the informal hearing provided may be limited, or eliminated in the PRB's discretion. Reliance is placed upon the PRB and the Designated Physicians to protect the patient's rights and to prevent improper admission and treatment. However, the PRB is not independent. It is appointed by the prefectural governor and its functional units, the review panels, are controlled by Designated Physicians judging, in most cases, decisions or actions taken by other Designated Physicians. The individual Designated Physicians to whom are entrusted many of the critical diagnostic, therapeutic and physical treatment decisions respecting an individual patient will in many cases be, moreover, an employee of the hospital concerned. Beyond this closed administrative process, there are, in legal terms, only the extraordinary powers of the governor or Minister of Health and Welfare to detect improper admissions or physical treatment and remedy them by order. There are no appeal procedures and no access to the courts specifically provided within the Law's system of safeguards. Certain areas of concern, such as the right to refuse certain types of medical treatment, are not addressed in the Law at all. The new system of legal safeguards reflects the continuation of a paternalistic, medical model in which abuses will be more difficult to hide from the light of the new, carefully channeled and limited administrative review process. Related to but even beyond the question of the prevention of human rights abuses, the new Law is also concerned with the affirmative realization of the most important right of the mental patient, the right to effective treatment and a return to a normal place in society.

Language: en