Resolution Calling to Establish the Dignity of Individuals with Cognitive Impairment

• Japanese

  October 15, 2021

Japan Federation of Bar Associations

 

 

The dignity of all human beings must be protected.

However, in terms of individuals with cognitive impairment, many of them are subjected to experiences such as involuntary hospitalization in a mental health facility; living out their lifetimes in a mental hospital without living in society for several decades; dying by suicide at the height of their adolescence in despair over compulsory segregation with no way out; carrying deep emotional wounds created by abuse during hospitalization such as coercion, insult, offensive language, violence, and physical restraint; and struggling with isolation, poverty, and living in fear of becoming helplessly segregated from society at times.

Long-term segregation in a mental health facility has a decisive and serious impact on the life of individuals who have undergone the treatment. It negatively impacts their personality, honor, and dignity, and deprives them of the opportunities to make life choices in various circumstances—such as receiving an education equally in a community, loving people and being loved by people, working, and starting a family—thereby damaging the development of their life.

These violations of human rights stem from the legal system applied specifically to individuals with cognitive impairment.

The Act on Mental Health and Welfare for the Mentally Disabled (the “Act”) lays down the involuntary hospitalization procedure prescribed exclusively for individuals with cognitive impairment based solely on their mental conditions. By means of indefinite segregation in a mental health facility, the Act has been setting limits on the life and dignity of the relevant individuals. It is this legal system that has provided grounds for institutionalizing the discrimination and prejudice against individuals with cognitive impairment and has structuralized the wrong social construct that those who have mental disabilities should be segregated and excluded from communities.

It is this legal system that has prevented the provision of necessary resources required for in-home care or post-discharge support for community living, thereby subjecting individuals and their families to isolation and poverty, and creating a fence in the community.

Leaving this cycle repeating, the legal system has prevented individuals with cognitive impairment from finding a place of comfort and peers and living a peaceful life in a community with dignity as a person.

On October 23, 1971, at its 14th Convention on the Protection of Human Rights, the Japan Federation of Bar Associations (the “JFBA”) declared its commitment to “eradicating human rights violations associated with healthcare.” Since then, the JFBA has reiterated its concerns about the recurrence of human rights violations against individuals with cognitive impairment.

However, while human rights violations against individuals with cognitive impairment continue, the JFBA has failed to achieve the reform of the legal system to protect the dignity of these people, nor has it been able to provide adequate redress or legal assistance for the harm.

In 2014 Japan ratified the Convention on the Rights of Persons with Disabilities (the “Convention”), in which Article 14, paragraph 1 sets out that the existence of a disability shall in no case justify a deprivation of liberty in order to secure the enjoyment of human rights and fundamental freedoms of persons with disabilities and respect their inherent dignity.

Aiming to achieve the goal of eradicating human rights violations against individuals with cognitive impairment based on their disabilities—for which working towards reforming the current legal system radically to abolish the involuntary hospitalization system targeting individuals with cognitive impairment thereby redressing the harm they have been subjected to by human rights violations and guaranteeing the dignity of every one of them—the JFBA, yet again, calls on the national government to create a new legal system as well as improve the current one, and urges the national and local government to implement diverse measures as spelled out below:

1. 1. Reforming the medical care laws and the medical care system for individuals with cognitive impairment
   1. (1) Abolishing the involuntary hospitalization system set forth in the Act on Mental Health and Welfare for the Mentally Disabled, which is a mechanism applied exclusively to individuals with cognitive impairment and authorizes the involuntary commitment to a mental health facility against their will, in violation of the general principles of law which typically require imminent danger before involuntary commitment. Towards this goal, formulating a roadmap (basic plan) and creating a legal system to implement it.

      
      

   2. (2) Enacting expeditiously a medical care law centering on patients’ rights which is applicable equally to mental health care as well, thereby ensuring to provide healthcare services of equal quality and standards to general medical care, including, among others, the application of the general principles of law on informed consent. In addition, establishing and refining the legislation required to operate and publicize such a law.

      
      

2. 2. Due process to protect the dignity of individuals with cognitive impairment associated with their hospitalization

   
   

   During the transition period to the abolishment of the involuntary hospitalization system, the conduct towards individuals with cognitive impairment that involves their dignity—such as involuntary hospitalization and the restriction of movement—should be premised on due process as described below:
1. (1) The independency and the member structure of the Psychiatric Review Board as well as its examination procedure and other practices will be radically overhauled to ensure rigorous operation of the Psychiatric Review Board system, for which the national government will provide necessary financial resources.
1. (2) Particularly, the procedure to examine whether criteria for admission and extended hospitalization are satisfied will be radically reformed to change it to an effective and substantive examination procedure wherein, when initiating involuntary hospitalization, an interview with the relevant inpatient will be conducted with no delay after their admission.
1. (3) In order to guarantee inpatients’ rights to request discharge and improved care and treatment, instituting a system expeditiously wherein they are entitled to choose and appoint counsel to seek support.
3. 3. Realizing inclusive community living of individuals with cognitive impairment
1. (1) Reducing the number of hospital beds in mental health facilities and shifting the budget and the healthcare professionals for mental health care to community healthcare and welfare in an organized and smooth manner to guarantee individuals with cognitive impairment community living suited to them.

   
   

2. (2) Establishing a necessary and effective welfare service system including the following for individuals with cognitive impairment so that they can live in a community being themselves and feeling safe and secure:
1. − Providing secure housing
2. − Providing stable and adequate income security by means of disability pensions, public welfare benefits, and other financial aid
3. − Enhancing employment and labor market conditions
4. − In the event that mental conditions or other ailments have developed, providing counseling, support, and other services to maintain community living
3. (3) Setting clear objectives for community inclusion so that inpatients with cognitive impairments may aspire to live in a community without worries. To ensure the objectives are achieved, designing policy measures and providing necessary financial resources, such as mandating mental health facilities to accept support service activities provided by peer supporters and social welfare professionals.

   
   

4. (4) Building a useful counseling and support system to ensure that the community inclusion of individuals with cognitive impairment will not become a burden to or the responsibility of their families.
4. 4. Restoring dignity of individuals with cognitive impairment and realizing a society without discrimination and prejudice against them

   
   

   Conducting investigations, and verifying results, of the systematic human rights violations caused by the legislation for segregation of patients with cognitive impairment, as well as of the actual situation of the entrenched discrimination and prejudice built into the social structure resulting from such human rights violations, and creating a legal system to restore the broken dignity and detriment. Additionally, in order to eradicate discrimination and realize an inclusive society, undertaking useful policy measures to correct wrong social perceptions, such as building community hubs in the central parts of municipalities for socializing and counseling.

   
   

5. 5. Establishing a national human rights institution in accordance with the principles relating to the status of national institutions (national human rights institutions) for the promotion and protection of human rights (the Paris Principles) as required by the Convention, and introducing a communications procedure

   
   

   In order to ensure the dignity of individuals with cognitive impairment, establishing a national human rights institution to guaranty their rights (Article 33(2) of the Convention) and ratifying the Optional Protocol of the Convention, thereby introducing a communications procedure to report to the United Nations.

The JFBA stands firm in strengthening its activities to bring each of the above policy measures into practice. Additionally, the JFBA is fully committed to developing necessary apparatuses in collaboration with other specialists to protect the rights of individuals with cognitive impairment by instituting an appointed counsel system expeditiously within the local bar associations to provide these people with quick assistance at any time.