Statement Calling for Reviewing the Bill for Amendments to the Act on Mental Health and Welfare for the Mentally Disabled
On October 26, 2022, the Bill for Amendments to the Act on Mental Health and Welfare for the Mentally Disabled (the “Bill”) was submitted to the 210th session of the Diet as part of the Bill partially amending the Act on Providing Comprehensive Support for the Daily Life and Life in Society of Persons with Disabilities, etc.
The Bill was created to review hospitalization for Medical Care and Protection, establish a visiting service for inpatients, and require psychiatric hospitals to report incidents of patient abuse.
The Japan Federation of Bar Associations (the “JFBA”) has called for reviewing the involuntary hospitalization procedure pursuant to the “Act on Mental Health and Welfare for the Mentally Disabled” (the “Act on Mental Health and Welfare”) in “Declaration Calling for the Full Implementation of the Convention on the Rights of Persons with Disabilities” published in November 2014, and has also called for the abolition of the involuntary hospitalization procedure pursuant to the Act on Mental Health and Welfare targeting only individuals with cognitive impairment, and the formulation and implementation of a roadmap (basic plan) toward the abolition in “Resolution Calling to Establish the Dignity of Individuals with Cognitive Impairment” published in October 2021.
In August 2022, Japan underwent a policy review by the U.N. Committee on the Rights of Persons with Disabilities, and its concluding observations were published in September. In its observations, the committee recommended abolishing all legal provisions legitimating forced treatment of persons with psychosocial disabilities (cognitive impairment) (Item 34-a), and urged reviewing all cases of persons with disabilities who are hospitalized in psychiatric hospitals to cease any indefinite hospitalization to ensure their informed consent; and foster their independent living, along with the required mental health support in the community (Item 42-b).
The government is being called on to implement reform based on the observations, to abolish the involuntary hospitalization procedure, including hospitalization for Medical Care and Protection (Article 33 of the Act on Mental Health and Welfare). However, even though the Bill sets a period of time for hospitalization for Medical Care and Protection, it also allows for repeated renewals, permitting individuals to be hospitalized indefinitely, which is not in line with the aforementioned declaration and resolution by the JFBA and the aforementioned concluding observations of the U.N. Committee on the Rights of Persons with Disabilities calling for drastic reform toward the reduction and abolition of the involuntary hospitalization procedure. Furthermore, the current system which requires the consent of an individual’s family member, etc., for hospitalization for Medical Care and Protection should be abolished to begin with as this places too much of a burden on the family member, etc., from the perspective of protecting the rights of the individual. In addition, the Bill takes it further by keeping the consent of an individual’s family member, etc., as a requirement for hospitalization for Medical Care and Protection but allowing such hospitalization with the consent of the mayor of a municipality in cases where the family member does not express their agreement or disagreement to hospitalization, expanding the scope of the application of such hospitalization. Therefore, there is no choice but to say this goes against the drastic reform mentioned above.
Furthermore, the Bill uses the same definition of “abuse” and “obligation to report the abuse of inpatients at psychiatric hospitals” as in the Act on the Prevention of Abuse of Persons with Disabilities and Support for Caregivers (the “Act on the Prevention of Abuse of Persons with Disabilities”), which was urgently requested (Article 40-3, paragraph 1 of the Bill). However, the scheme for responding to reports of abuse included in the Bill is different from the one included in the Act on the Prevention of Abuse of Persons with Disabilities as it does not appoint a readily accessible local municipality to be in charge of the initial acceptance of reports of abuse. Instead, it designates the prefecture as the only place to which abuse can be reported. This is not sufficient from the perspective of encouraging such reports and preventing delays in first responses.
Also, following the acceptance of reports, the Bill states that employees of the Ministry of Health, Labour and Welfare or the prefecture, or their designated doctor may conduct an on-site inspection of the psychiatric hospital, and interview other inpatients of the psychiatric hospital and other relevant parties, and that the designated doctor may enter the psychiatric hospital to examine the inpatients at the hospital (Article 40-5, paragraph 1 of the Bill). However, investigating reports of abuse should be the responsibility of employees of the prefecture, etc., as it involves granting redress for human rights violations. Also, the role of the designated doctor should be limited to a supplementary role in determining and responding to abuse, such as giving technical advice as needed. Given how conventional operations under the Act on Mental Health and Welfare for the Mentally Disabled work, the proposed scheme cannot be expected to provide a prompt response in providing redress to the individuals whose human rights have been violated. Instead, focus should be on ensuring a prompt response to reports of abuse by the public administration with the help of appropriate involvement and advice from professionals, including lawyers, etc., as provided in other abuse prevention acts.
For the reasons above, the JFBA calls for reviewing the retention of hospitalization for Medical Care and Protection, the expansion of its application, and the introduction of the insufficient scheme for responding to reports of abuse. In addition, the JFBA calls for starting discussions involving not only individuals with cognitive impairment and self-help groups formed by such individuals but also bar associations that are the bearer of the responsibility for the protection of human rights while working toward drastic reform of the mental health and welfare system to abolish the involuntary hospitalization procedure as recommended in the concluding observations published by the U.N. Committee on the Rights of Persons with Disabilities.
November 9, 2022
President of Japan Federation of Bar Associations