Opinion Calling for Fundamental Reform of the Mental Health and Welfare System – Proposals on Short-Term Process Toward Abolishing the Involuntary Hospitalization Procedure
February 16, 2023
Japan Federation of Bar Associations
The Japan Federation of Bar Associations (the “JFBA”) compiled the “Opinion Calling for Fundamental Reform of the Mental Health and Welfare System – Proposals on Short-Term Process Toward Abolishing the Involuntary Hospitalization Procedure” dated February 26, 2023, and submitted it to the Minister of Health, Labour and Welfare on February 21, 2023.
Summary of Opinion
1. Amending the Hospitalization Procedure Pursuant to the Act on the Mental Health and Welfare System
(1) The legislation should be amended as follows to raise the requirements for the hospitalization procedure pursuant to the Act on the Mental Health and Welfare System:
(a) As for involuntary hospitalization, the issues of how soon and imminent it might be for the patient to cause bodily harm to themselves or others should be seen as requirements. From the perspective of achieving a balance of interests, among persons who might cause such harm to others, those who might commit acts that would only be a minor infringement of interests should be excluded from the requirements for such hospitalization.
(b) As for hospitalization for medical care and protection, the following requirements should be met for such hospitalization, and the requirement of an agreement from the patient’s family member or others for such hospitalization should be removed from the legislation.
- The patient is in such a state that they are unable to make decisions for themselves regarding such hospitalization due to their severe psychiatric disorder, even with the best possible care.
- If they are not hospitalized, there is a high probability of serious deterioration in the patient’s condition and not receiving proper treatment that is expected to improve their condition; and,
- There are no alternatives that are less restrictive than hospitalization.
(c) It should be clearly stated that the fact of the patient not actively refusing hospitalization is insufficient, and that clear agreement from the patient is required for voluntary hospitalization. Such hospitalization must be based on the patient’s free will.
(2) As for voluntary hospitalization, the legislation should clearly stipulate that such hospitalization must be based on the patient’s free will, and the system restricting the discharge of inpatients should be deleted from the provisions of the Act. In addition, the proper treatments to be given at locked wards and the prohibition of activity restrictions (through isolation and physical restraints) should be clearly stated.
(3) A maximum period for which inpatients can be admitted for involuntary hospitalization and hospitalization for medical care and protection should also be stipulated by law.
2. Guaranteeing Due Process
(1) The Psychiatric Review Board should be fundamentally reformed to ensure its independency and fairness by taking measures such as changing its member structure, separating its secretariat from its administrative branch to become an independent department, and giving binding effect to the outcomes of the reviews by the Board.
(2) As for guaranteeing procedural rights and review proceedings by the Board to inpatients at psychiatric hospitals (including non-psychiatric hospitals which have a section for the care of persons with mental disorders; the same applies hereafter), the following measures should be taken for fundamental reform and be clearly stipulated in the Act on the Mental Health and Welfare System.
(a) Guaranteeing the right to hire an attorney and establishing a legal expenses aid system funded by the government
(i) Guaranteeing the right to hire an attorney for proceedings on requests for discharge and improved care and treatment (a “request for discharge, etc.”)
(ii) Establishing a government-funded legal expenses aid system for inpatients.
(iii) Introducing provisions prescribing the obligation of the prefectural governor (in cases of involuntary hospitalization) and the administrator of the psychiatric hospital (in cases of hospitalization for medical care and protection) to notify inpatients who are admitted for such hospitalization of the details of the rights and system described in (i) and (ii) above.
(iv) Introducing provisions prescribing the obligation of the administrator of the psychiatric hospital to make the details of the rights and system described in (i) and (ii) above known to such inpatients.
(v) Introducing provisions prescribing the obligation of the Board to notify such inpatients of the details of the rights and system described in (i) and (ii) above.
(b) Guaranteeing inpatients and their representatives in the proceedings on requests for discharge, etc., the right to inspect and copy records, submit evidence, attend hearings, be involved in the process, and demand the attendance of specific persons at such hearings.
(c) Introducing measures for the substantive documentary review of the notification of hospitalization and periodic reports on the patient’s conditions such as establishing on-site review procedures, increasing the number of panels conducting reviews on periodic reports on the patient’s conditions, and shortening the period for which such reports are required to be submitted.
(d) Introducing provisions prescribing the obligation of the Board to clearly state the reasons for the outcomes of their reviews.
(e) Guaranteeing inpatients the right to file an objection against the decision made by the Board.
3. Aiming to Enhance Social Resources in Communities
As for the state of social resources necessary for such people to lead a peaceful life in inclusive communities, a fact-finding survey and examination should be carried out while consulting those with mental disorders. In addition, social resources should be enhanced in terms of both quantity and quality by transferring the budgets and human resources allocated to medical care centered on hospitalization to be used for medical care and welfare centered on helping patients live in communities.
4. Examining and Investigating the Reality of Human Rights Violations
The reality of human rights violations committed against those who are/were subject to involuntary hospitalization and the discrimination and prejudice faced by such people should be examined and investigated, with the aim of establishing legislation to restore their dignity and redress such persons for the damage they have suffered.
