Lawsuit for State Compensation for Mental Health Care (Tokio Ito Trial)

Statement regarding the Tokyo District Court ruling

On October 1, 2024 , the Tokyo District Court handed down a judgment in the lawsuit seeking state compensation (Reiwa 2 (Wa) No. 24587) filed by plaintiff Tokio Ito.

The ruling dismissed the plaintiffs' claim for state compensation. The reasons for the ruling did not include any evaluation of the country's mental health care legal system, which was the main point of contention in the trial. Furthermore, the ruling avoided a constitutional ruling on the historical course of the state-led segregation and confinement policy, and contained no in-depth description at all.

The court determined that the cause of Tokio's long hospitalization was due to "the plaintiff's medical condition" based on the contents of his medical records from a period when his condition was not good, and dismissed the plaintiff's argument that the government was responsible for its inaction.

In particular, the reasons for the judgment stated that "It is a well-known fact that patients with mental illnesses such as schizophrenia may experience impaired judgment, and may be unable to make appropriate decisions themselves, resulting in the need for hospitalization even without the patient's consent." This shows the court's discriminatory prejudice against mentally disabled people, who are expected to be hospitalized for long periods of time based on a temporary impairment of judgment.

The court also accepted the defendant's argument that the plaintiff's prolonged hospitalization was due to the fact that he "felt that hospitalization would be easier" and "came to the point where he chose to continue his hospitalization of his own accord," and rejected the plaintiff's argument that he was in a socially hospitalized state that made it difficult for him to express his will voluntarily due to institutionalization.

Furthermore, although "the path to relief is obviously open" through the Psychiatric Review Board and the Habeas Corpus Act, the plaintiff "never requested discharge or sought relief from a lawyer," and the long-term hospitalization "cannot be said to be a problem with the system, such as consensual hospitalization or voluntary hospitalization, nor a problem with psychiatric care policy." Without even considering the reality of psychiatric care in this country and the situation hospitalized patients find themselves in, the problem is reduced to the personal responsibility of the individual patient.

The court concluded, "Therefore, without even considering the further points, the plaintiff's claim is without merit," and dismissed the plaintiff's claim.

Considering that the ruling was handed down over four full years since the lawsuit was filed on September 30, 2020 , and that a total of 16 oral arguments had been held, this ruling can only be described as extremely unreasonable and empty of substance. One can only be stunned by the lack of insight of a court that does not know the reality inside a psychiatric hospital. How much sadness and regret must Tokio have felt, having been forced into social hospitalization for 40 years and losing precious time of his life?

The Research Group for Psychiatric State Compensation Lawsuits, together with the many people who were present on the historic day of the ruling, strongly protests this unjust ruling with anger and sadness. We also declare that, in accordance with the wishes of the plaintiff, Tokio, we will appeal to the High Court.

We hereby declare that we will continue to fight tenaciously until the day we achieve fundamental reform of mental health care in this country, until those with mental illnesses are truly and truly restored to society, and until the day when the "misfortune of being born in this country" is erased.

October 2 , 2024

Research Group on State Compensation Lawsuits for Mental Health Care

 Plaintiff Ito confidently responds to party questioning Document 2.27 

 On February 27, 2024, the 15th oral argument took place. This time, unlike the usual 10 minutes before the start of the trial, the doors to Courtroom 103 opened 30 minutes before the trial began. The gallery was soon filled to capacity. Those who arrived after the courtroom was full and were unable to enter the courtroom were moved to the Chamber of Commerce and Industry building for a mini social gathering. 

 Seven lawyers for the plaintiffs and four lawyers for the defendants were in attendance. The court opened at 3 p.m. as scheduled. The questioning of Tokio Ito began immediately. In a question-and-answer session with the head of the legal team, Mr. Hasegawa, Mr. Ito spoke about the events that led from his onset of illness to his hospitalization, his transfer to Fukushima, and his life in the psychiatric hospital. 

 After approximately 50 minutes of main questioning, the defendant's side conducted 15 minutes of cross-examination, after which the plaintiff's attorney asked additional questions. 

 The next trial date was set, and the court adjourned at 4:15 p.m. The next oral argument was scheduled for Tuesday, June 18th, at 3:10 p.m. The presiding judge also instructed that any additional preparatory documents should be submitted by June 3rd. It appears that the next oral argument will conclude the case, with both the plaintiff and defendant presenting their arguments. 

 Afterwards, the group moved to the Chamber of Commerce and Industry building, where a presentation was held. After the presentation, a publication celebration and birthday party for Tokio-san's "Kago no Tori" was held in the same venue. 

 Regarding the examination of the parties 

 Plaintiff's Examination 

 The circumstances that led to hospitalization 

 The reality of hospital life and inpatient treatment in psychiatric hospitals 

 What was Mr. Ito's own understanding of the type of hospitalization he was in? 

 How did you respond to the request to leave the hospital? 

 How was your relationship with the hospital and your family? 

 Did the change in the law not change the situation? 

 - Becoming institutionalized due to long-term hospitalization 

 ●Discharge history 

 Questions were asked along the lines of the above. 

 Cross-examination of the Defendant 

 ●Is it possible that he was able to spend his time freely while he was hospitalized? Was it possible that he was hospitalized of his own volition and was enjoying his life to the fullest? I was trying to find out this. 

 Point of issue 1: Fact-finding 

 The psychiatric hospital chart submitted as evidence does not include information about the type of hospitalization. 

 Hospitalized under medical protection from __/__/__ to __/__/__ 

 ▲▲year▲month▲day to ★★year★month★day Change of hospitalization type/voluntary hospitalization 

 There is no information such as parent's name (〇×△□). 

 Therefore, one of the points of contention had to be whether or not Mr. Ito had been forcibly hospitalized. 

 So the defendant 

 ●Even while you were hospitalized, Ito-san went out to many places. There were many events. I guess you had a certain amount of freedom. 

 ●Mr. Ito was hospitalized voluntarily. 

 ●Even if the hospitalization was compulsory, there were probably fewer restrictions on human rights. 

 It seems likely that they intended to impress upon the judge this fact. 

 On the other hand, the plaintiff 

 ●At first, it started as "consented hospitalization" under the old system, which is medical protective hospitalization. Without my knowledge, it was changed to voluntary hospitalization, but it remained a compulsory hospitalization until my father passed away. Ito testified that he was not hospitalized of his own will. 

 ●The plaintiff's legal team argues that under the Mental Health Act at the time, only "consensual hospitalization" was possible, and that even after the law was revised, the hospitalization was "medical protective hospitalization." 

 ●It is possible that the hospitalization was switched to "voluntary hospitalization" after his father's death, but Tokio testified in court that he was never informed of this. 

 Point of issue 2: Institutionalization 

 ●Mr. Ito gave up on being discharged from hospital. 

 → Plaintiff: The consciousness was brought about as a result of long-term hospitalization. It was not voluntary. 

 → Defendant: Mr. Ito was hospitalized of his own volition and enjoyed his hospital stay. He had wanted to be hospitalized himself. 

 What emerged from the interrogation 

 ●Hospitalization history: Hospitalized at a hospital in Tokyo 

 →It was clear from the outset that he was forcibly hospitalized. 

 ●Condition after transfer to Fukushima The patient's condition did not improve even after transfer 

 →Even after being transferred to another hospital, he remained hospitalized for medical protection. 

 ●Do you know the term "voluntary hospitalization"?: No. 

 I was hospitalized because my father told me to. 

 →The patient was hospitalized with the consent of the guardian. 

 ● The reality of hospitalization in a psychiatric hospital: Working inside and outside the hospital for a long period of time 

 Clearly there was no need for hospitalization. 

 Did you request to be discharged?: Yes 

 Hospital: If the family is OK with it, discharge the patient. 

 Family: If the director is OK with it, I'll discharge him. 

 → Caught between a rock and a hard place, the situation created one where the patient could not be discharged, and their desire to leave the hospital was diminished. This clarified the structure in which the situation of being caught between the hospital and the family creates institutionalization. 

 ●In order to change the situation, outside influence is essential. Was there any outside influence?: No 

 →What kind of efforts did doctors, nurses, case workers, etc. make? 

 - Were there any external audits of the hospital? Yes, but they only falsified the number of beds. 

 How often did you go out? Once or twice a year 

 Who paid the hospital bills? Family members paid for them. 

 Was there an explanation of the type of hospitalization?: No 

 - Why did you become institutionalized? Why did you give up? (No matter what you did, the situation would not change.) You felt hopeless. 

 ●Do you know about the discharge request system and have you ever used it?: I don't know. I have never used it. → Plaintiff: This is a question to make the judge understand that the discharge request system is not functioning properly. 

 → Defendant: He never used the discharge request system. He suggested that if he had used it, he might have been able to be discharged from hospital. 

 ●Background to discharge from hospital: After the Great East Japan Earthquake, the doctor at the hospital where he was transferred recommended that he live in a group home. 

 → Even if they have institutionalized conditions, they are discharged immediately if there is encouragement. 

 →The problem was that the government did not supervise it. 

 Thus, he testified about the reality that "although my condition had stabilized and I was able to work, I was unable to leave the hospital for nearly 40 years." The presiding judge rejected the plaintiff's request to call three witnesses. 

 Source: Mitsuru Arai, "Plaintiff Ito, confident in the party questioning, Document 2.27," "Spiritual Compensation Newsletter," No. 32, pp. 1-3, published June 1, 2024 

 *The original manuscript was fully written with ruby, but it has been reconstructed and some of the wording has been revised for reprinting (Furuya)

Report on the 16th oral argument (conclusion).

Despite heavy rain in Tokyo, 62 people attended in the gallery.

The trial itself concluded with the confirmation of the final documents submitted by both the plaintiff and defendant.

The next verdict was announced to be on Tuesday, October 1st at 2pm, and the court adjourned in just three minutes.

After moving through the rain, 67 people attended the trial report meeting by registering at the reception.

We had 24 people connect to Zoom, and some people watched with multiple others, so we believe the total number of people was 99.

We are grateful to the many people who are watching the progress of the trial from afar.

Attorney Hasegawa was unable to attend the report meeting due to urgent business, but Furuya gave the report by reading out the documents that had been compiled.

Below, I will summarize the contents in brackets and include Furuya's impressions.

The documents submitted in this trial were “Plaintiff’s Preparatory Brief 8” and “Defendant’s Preparatory Brief (7).”

Based on the plaintiff's previous cross-examination, the plaintiff's side has organized its arguments to date and put them in writing.

However, the defendant's arguments were very short and only contained factual contentions.

Fact-level assertions

One point of contention is the "type of hospitalization," due to sloppy (or falsified) information being recorded in the medical records.

The plaintiff's side made it clear that "the hospitalization was conducted under the Mental Health Act and was a voluntary hospitalization," and "based on the contents of the medical records and the plaintiff's understanding, he was hospitalized for medical protection until 2003."

The court then stated, "The fact that the form of hospitalization is not clear in the first place stems from flaws in the national system design," and "the reality of forced hospitalization remains unchanged, and the plaintiffs should not be made to suffer the disadvantages that result from this."

On the other hand, the defendant claims that "the plaintiff's form of hospitalization has not been proven."

The reason why the plaintiff was unable to be discharged from the hospital was a topic that was repeatedly raised during the previous cross-examination of the parties.

The plaintiffs argued that "years of inpatient treatment were unnecessary."

The reasons given for this included "I was able to objectively view my symptoms and situation," "I was able to work without any problems," "I was able to be discharged immediately after being transferred to another hospital," and "I am living without any problems since being discharged."

Furthermore, the court pointed out that "both the doctors who treated the plaintiff and the psychiatrist who examined his medical records testified that long-term inpatient treatment was unnecessary."

In response, the defendant argued that "the reason he was unable to be discharged from the hospital was not due to the government's inaction."

The court cited possible reasons for the plaintiff's inability to be discharged from hospital as "possibly due to the plaintiff's illness" and "his family not allowing him to be discharged," and stated that "the plaintiff chose to remain hospitalized, as he thought it would be easier for him to remain hospitalized."

(Regarding this last reason, Tokio also commented at the presentation, "That's a terrible thing to say.")

Regarding violations of the Constitution, such as laws

The plaintiffs argued that "the regulations governing consensual hospitalization and medical protective hospitalization are unconstitutional," "voluntary hospitalization is also unconstitutional because it does not guarantee true voluntariness," and "the psychiatric special provisions are also unconstitutional."

The defendants have not addressed this at all in their filings.

◆ Regarding "illegality" under the State Compensation Act

The plaintiffs argued that "until now, unconstitutionality of legislative inaction has been remedied under the State Compensation Act, and remedies under the State Compensation Act should not be closed in this case either."

In particular, the court stated that "this is a fundamental violation of human rights, namely personal freedom, and its infringement is clear," and that "the failure to amend or repeal the law despite recognition of this is illegal."

He also stated that "fundamental violations of human rights, such as personal freedom," "are the result of the isolation and detention policy that is the basis for this," and that this is a result of national policy.

In particular, the report stated that "medical protective hospitalization gave many private hospitals the authority to involuntarily admit patients," "allowed hospitals to operate with low medical and labor costs," and "the government approved of a policy of isolated confinement."

"If the state is not held responsible in principle no matter what policies it adopts, then it would be like giving private individuals the power by law to restrict the right to pursue happiness, personal liberty, freedom of movement, etc., and the state is not held responsible at all," he stated, stating the injustice of this, and that the Minister of Health, Labour and Welfare is "held a duty to act in principle."

The court then ruled that it was illegal for the government to have recognized the human rights violations and yet failed to shift policy toward community-based medical care, provide guidance and supervision to psychiatric hospitals, or provide relief to those forced into long-term hospitalization.

The defendants have not addressed these points at all in their written argument.

Until now, we have argued that for legislative inaction to be considered illegal, it should be limited to limited circumstances, such as when the infringement of rights is clear.

Regarding the Minister of Health, Labour and Welfare's duty to act, the court also argues that the duty and authority to act in principle are not unambiguous, and therefore does not recognize any illegality under the State Compensation Act.

◆Participants' opinions

Participants in the trial report session, both in person and via Zoom, responded:

"The defendant country is trying to avoid the issue by reducing it to factual issues."

"Does the defendant country consider that medical protective hospitalization under the current law is lawful and constitutional?"

"Where has the sincere reflection and review that has been given in advisory councils, review committees and the Diet gone?"

"Is the defendant's side not shaken by Tokio's statement?"

Various opinions were expressed.

Summary

The first instance ruling is scheduled to be handed down at 2 p.m. on Tuesday, October 1st.

I have the impression that the time it takes to reach a verdict is unusually long.

What that means is unclear at this point.

Since it is a trial, there are only two options: win or lose, but there can be a fairly wide range of outcomes between the two.

We are seeking a "victory judgment" that recognizes the illegality of the plaintiff's claims under the State Compensation Act.

However, even if a "loss judgment" does not acknowledge illegality under the State Compensation Act, unconstitutionality under the Constitution may still be acknowledged.

It is also possible that the court will not make a judgment on whether a crime is unconstitutional, or that it will decide that medical protective hospitalization is constitutional.

What the defendant country is aiming for is a judgment that dismisses the plaintiff's claim without going into the issue, on the grounds that the plaintiff has not presented any factual evidence.

The wording of the ruling will determine the extent to which it will affect future mental health care policies.

We at the National Institute for Mental Health Compensation have renewed our resolve to work hard and prepare for the verdict on October 1st.

We hope to continue to discuss how we will approach the day of the verdict at future management committee and monthly meetings.

I hope that on the day of this historic verdict, we will be able to greet each other with a smile, along with Tokio.

Source: Ryuta Furuya, "Report on the conclusion of the trial," sent to the Mental Compensation Research Association member mailing list on June 21, 2024

*We apologize for the delay in posting the trial progress report to CALL4. We will post the missing trial progress report at a later date.

◆10th, 11th, 12th oral argument February 21, May 15, July 25, 2023

There has been a delay in reporting after the 9th trial date (November 29th last year), but we will summarize the trends of the 10th to 12th Ito trials since the beginning of 2023.

In the 10th (February 21st), 11th (May 15th), and 12th (July 25th) trials, the plaintiffs submitted various documentary evidence. Specifically, it includes a report summarizing 130 testimonies submitted by members, written opinions from experts (6 psychiatrists, 3 welfare workers, and 1 constitutional scholar), and a Korean court case. Examples include recommendations from the United Nations Committee against Torture, opinions from the Osaka Mental Health and Welfare Council (1999), the Society of Psychiatry and Neurology, and statements from the plaintiff, Ms. Ito.

We will write down the plaintiff's claims by extracting some of the contents of Plaintiff's Preparatory Document 6, which was submitted in a summary form.

1. Opinions regarding the medical protection hospitalization system being unconstitutional as it is intended for isolation and detention.

・For historical reasons, emphasis has been placed on the function of social defense when it comes to hospitalization of mentally ill people in Japan.

・Decisions regarding the provision of medical care for admission and discharge are made based on circumstances unrelated to the patient's medical condition.

・Prolonged hospitalization must be avoided as it can lead to facility syndrome or loss of desire to leave the hospital.

・Psychiatric hospitals do not provide appropriate medical care

・The system that requires family members to be consenting persons (guardians) is increasing isolation and detention.

2 Opinions regarding the fact that the medical protection hospitalization system is not acceptable as a “means” for restricting human rights.

・It is not stipulated that other less restrictive measures cannot be taken (this has been pointed out by the Korean Constitutional Court, the Japanese Society of Psychiatry and Neurology, the United Nations, etc.)

・It is not stipulated that even after all support is given, the patient still cannot decide whether or not to be hospitalized.

・Requirements are vague

・Lack of judicial review (conflict of interest of designated doctor, etc.)

・A review by the United Nations Committee against Torture in 2007 expressed concern that ``private mental health doctors at private hospitals play a role in issuing restraint orders for mentally ill people.'' The original text of this "detention order" is "detention orders," which refers to forced hospitalization that restricts the person, such as internment.

・Hospitalization period should be limited

・Examinations by the Psychiatric Review Board are not functioning (questions about neutrality/independence, actual situation where written examination is not functioning, actual situation where request for discharge etc. is not reached in the first place, examination is not conducted properly)

・Family consent is not sufficient to protect patient's human rights

3 Opinions regarding the unconstitutionality of special provisions for psychiatry

・Psychiatry requires more medical personnel than general medicine.

・Psychiatric special cases have a negative impact on patient treatment

4 Opinions regarding the violation of the obligation to shift to a policy centered on community medical care, etc.

・Although it was clear that the government had to develop social rehabilitation facilities, as the Clark Recommendation and the Leconte Report clearly stated that there was an obligation to develop social rehabilitation facilities, the government did not have enough financial resources to do so. Neglected the distribution of housing, workspaces, and livelihood support, etc.

・As long as there is a prior act of entrusting inpatient medical care to private hospitals, the government is theoretically required to fulfill its ``obligation to enhance local medical care'' by giving incentives to private hospitals in local medical care. , failed to promote local medical care.

・The measures advocated by the government were not effective for reintegration into society.

5 Opinions, etc. regarding violations of the obligation to provide guidance and supervision to psychiatric hospitals

・The government has created a glut of private psychiatric hospitals that have no choice but to prioritize management, has given them the power to compulsorily admit patients, and has implemented policies that allow for fewer medical personnel (precedent actions), leading to longer hospitalizations. Although the company has a duty to provide guidance and supervision to ensure that appropriate medical care is provided, the company failed to fulfill its duty by conducting audits that were not actually functioning.

6 Violation of duty to provide relief to persons who do not require hospital treatment

・Similar to the above, despite the fact that people who did not need hospital treatment were forced to be hospitalized due to the government's prior actions, the government has not taken any measures to relieve them.

・The discharge promotion support project advocated by the government does not function as a relief for people who are forced into unnecessary hospitalizations.

7. Unconstitutionality of voluntary hospitalization

・Voluntary hospitalization is not guaranteed to be voluntary, and it is inappropriate to distinguish it from compulsory hospitalization. Some cases are treated in the same way as compulsory hospitalization, and furthermore, due to the mechanism of discharge restrictions, it can cause a feeling of pressure similar to compulsory hospitalization. is given to patients, and in reality it is being used as forced hospitalization.

8 Causation

・Social inpatients like the plaintiff are common in Japan, and they are caused by the consent hospitalization/medical protection hospitalization system and national policies.

During this time, 55 to 85 people attended the trial and debriefing session. We plan to request the court to interrogate witnesses in court, but we are at the stage where the case could be concluded in the spring of 2024 at the earliest. I would like to express my gratitude to the attorneys who have worked on this task, which has taken a considerable amount of time. I would also like to once again thank Mr. Hasegawa, Attorney General, for attending each trial report session and providing commentary.

Quote source

Ryuta Furuya “Report on trial dates (10th to 12th)” Shinkokubai Tsushin, No. 30; 1-2, August 2023

◆9th Oral Argument November 29, 2022

I would like to share with you the latest developments in the National Compensation Tribunal, as well as offer my personal opinion on future developments.

First of all, I would like to thank the large number of people who attended the hearing on the 9th trial date (November 29, 2022). A total of 73 people filled the audience seats, the largest number ever, and 78 people (65 people at the venue + 13 people connected via Zoom) participated in the subsequent trial report session. Some of the undergraduate students were aiming to become mental health workers, and they listened intently to the issues at issue in the trial and the statements of the parties and their families.

In this case, the defendant country submitted a preliminary document (5). This is a written rebuttal to Preparatory Documents 3, 4, and 5 that the plaintiff has submitted so far. I would like to briefly report on the summary explained by Attorney Hasegawa at the briefing session (below, the text in parentheses is a summary of the defendant country's argument).

1. Regarding medical protection hospitalization

(1) Purpose of consent hospitalization/medical protection hospitalization

The defendant's side stated, ``Unlike other illnesses, with mental disorders, the person is not aware that he or she is sick, so the person is unable to make an appropriate judgment regarding the need for hospitalization, and Taking into consideration that there may be cases in which it is not possible to protect the interests of such persons, cases where it is deemed necessary for such persons to be hospitalized for medical care and protection, although it cannot be said that there is a risk of harm to themselves or others. The purpose of the facility is to provide appropriate medical care to the patient and thereby benefit the patient," and is not intended to be "isolated and detained," as stated by the plaintiffs.

(2) Hospitalization requirements are vague and there are no interpretation guidelines.

In response to the plaintiff's claim that there is a violation of the Constitution, ``Article 31 of the Constitution is not directly applied in administrative procedures. ``The purpose of protecting the patient's interests is legitimate, and the patient's human rights are not unduly restricted, so the doctor or designated doctor recognizes the need for hospitalization.'' ``Hospitalization is permitted only with the consent of the guardian.'' ``Requirements for discharge, standards for treatment during hospitalization, etc. are stipulated, and in addition, the Mental Health and Welfare Act A medical review board has been established, and this does not violate the legal intent of Article 31 of the Constitution.''

In addition, in response to the plaintiff's claim that it violates the United Nations Human Rights Covenant (B Covenant), ``The Psychiatric Review Committee's review of the hospitalization notification confirmed that Article 9, Paragraph 4 of the B Covenant was satisfied'' and ``The International Covenant on Human Rights Committee ``General opinions have no legal binding effect on treaty interpretation.''

(3) To guarantee access to treatment

``Inpatient medical care at psychiatric hospitals is aimed at ensuring that patients receive appropriate inpatient medical care when they need to be hospitalized for mental illnesses in which they may not even be aware that they are sick.'' This is important from the perspective of guaranteeing access to treatment.'' This is a common recognition not only by doctors, local governments, and academics, but also by those who are involved. ``Organizing debates regarding the system''), and that remains the case.''

``There has never been a consensus on the direction of immediately abolishing medically protected hospitalization,'' and ``the legal revisions that the government has carried out will provide the best possible system, taking into account advances in medical care.'' ``As a result of the plaintiff's inability to be discharged, the medical protection hospitalization system was immediately revoked under the Constitution.'' It concludes that there is no obvious violation of rights.

(4) Comparison with medical observation method

``The two laws cannot be compared simply because their objectives are very different.''

2. Regarding the voluntary hospitalization system

In response to the plaintiff's argument that the voluntary hospitalization system includes compulsion, ``the central significance of voluntary hospitalization is to promote hospitalization in a non-compulsory manner.'' ``When being hospitalized, patients are required to submit a document stating that they will be hospitalized.They can also request discharge, etc.If a request for discharge is made, in principle, the patient must be discharged.'' Furthermore, it cannot be said that hospitalization is carried out based on the doctor's unilateral decision or that the patient's consent is not guaranteed.The provision of voluntary hospitalization is a clear violation of constitutional rights. "I can't say that," he argues.

3. Regarding special cases of psychiatry

In response to the plaintiff's claim that the special provisions for psychiatry result in discriminatory staffing compared to other medical departments, the plaintiff said, ``The special provisions for psychiatry are a relaxation of standards for the placement of doctors, nurses, etc. ``There are no regulations regarding the standards for the placement of doctors, nurses, etc.'' and ``the plaintiff's claims are not specific regarding the relationship with the standards for the placement of doctors, nurses, etc.''

Furthermore, ``In all medical fields, there are diseases that require chronic treatment.In psychiatric medical care, we strive to respond to all needs, taking into account the characteristics of most mental illnesses that are chronic or that their condition rarely changes suddenly.'' Psychiatric medical care needs to be considered.In addition, the psychiatric special provisions are only a provisional provision, and the psychiatric special provisions themselves do not determine the timing of admission or discharge." The court concluded that ``the Minister of Health and Welfare has no obligation to abolish the psychiatric special provisions in relation to the plaintiff.''

4. Regarding the obligation to change local medical policy

In response to the plaintiff's complaint, the defendant country stated, ``Based on the premise, the content of the obligation to act is not clear in light of the provisions of the law and its purpose and purpose,'' and added, ``The content of the obligation to act is not clear in light of the provisions of the law and its purpose and purpose.'' The Mental Hygiene Act was revised based on the changes in the medical system due to advances in psychiatry and psychiatry.''In 1966, the ``Guidelines for the Management of Mental Hygiene Services at Public Health Centers'' was published, and in 1966, the ``Guidelines for the Management of Mental Health Centers'' were published. In 1950, operating guidelines for ``social reintegration facilities for persons recovering from mental disorders'' and ``day care facilities'' were established, and in 1980, operating guidelines for ``mental health and social life adaptation facilities'' were established, and appropriate measures have been continued since then. ``It is clear that the Minister of Health, Labor and Welfare and the Minister of Health, Labor and Welfare have not taken any illegal action.''

5. Violation of duty to provide guidance and supervision to a mental hospital

In response to the plaintiff's claim, the defendant state did not make any further comment, stating that ``this is already stated in the defendant's preliminary document (3).''

6. Violation of duty to provide relief to social inpatients

In response to the plaintiff's argument that the defendant state had an obligation to provide relief to socially hospitalized patients, it stated, ``As a premise, the content of the obligation to act is not clear in light of the provisions of the law and its purpose and purpose.'' ``Active discharge support'' and ``obligation to proactively investigate and intervene'' have been implemented as national policies.''

7. Evaluation of this trial

As mentioned above, the defendant's rebuttal this time was merely a reiteration of what the defendant had previously stated. As you can see by reading the defendant country's argument, which has been published in the Shinkokuba Tsushin newspaper, there is nothing particularly new about it, and the content is short, less than 20 A4 pages.

In particular, there was almost no response to the plaintiff's claims regarding the liability of the legislative branch (National Diet) for inaction, and regarding the responsibility of the executive branch (Minister of Health, Labor and Welfare), ``the claims are not clear'' and ``there is no obligation to act.'' ``There was no illegal omission,'' he simply repeated. What was the point in the previous trial when they requested that the trial be held in three months, saying that ``it would take time to make a counterargument''? I still feel like I was made to wait for a prank.

Perhaps (this is just speculation in my opinion) the ``Blank Amendment Bill for the Comprehensive Support Act for Persons with Disabilities,'' which includes the ``Mental Health and Welfare Act Partial Amendment Bill'' (so-called I believe that adjustments were made within the ministry to ensure that the deliberations on the Bundled Bill were not affected. In any case, I feel like the discussion ended with "That's it!" without any new counterarguments.

By the way, there was a discussion at the monthly meeting that the Psychiatric and National Health Insurance Research Institute cannot overlook this bill, so we discussed it in the expert committee and compiled our views. It was sent by fax on December 5th to 16 members of the Health and Welfare Committee of the House of Councilors.

8. Future developments in the trial

At the end of the 9th session, the plaintiff's legal team requested the submission of testimonial materials and was granted permission by the presiding judge. In response to this, the plaintiff's legal team will submit a "testimony statement" as evidence at the next 10th hearing. During this time, through the "testimony statements" of the parties, their families, and professionals, which we received with the cooperation of our members, we were able to understand the state of mental health care in Japan, not just for the plaintiff in this case, Tokio Ito, but equally. We will be able to show the court what is being experienced in each region.

In addition, the plaintiff's legal team will seek opinions from experts such as psychiatrists regarding the historical background of the segregation and detention policy, the current hospitalization system, and the Mental Health Care Review Board, which are being questioned in this trial. A special committee has been discussing the selection of the person.

The trial is about to reach its final stage. There is a limit to what each individual can do, but if you are able, I would like you to come to the courtroom for the 10th session and watch from the audience seats.

Quote source

Ryuta Furuya, “9th Trial Date and Future Developments,” Shinkokubai Tsushin, No. 28; 3-5, published January 2023

◆7th and 8th Oral Arguments May 16, 2022, August 22, 2022

Eight trials have been held so far in the mental health compensation trial in which Tokio Ito is the plaintiff. This time, I would like to share an overview of what has happened so far in preparation for the 9th trial (opening at 1:30pm on November 19th).

1. 7th date (May 16, 2022)

Plaintiff's lawyers have submitted "Plaintiff Preparatory Documents 3 and 4." Plaintiff Preparation 3 states that forced hospitalization without the need for inpatient treatment is constitutionally unacceptable, that the plaintiff had no need for inpatient treatment, that the plaintiff was unable to be discharged due to the government's inaction, and that the plaintiff's rights It also states that the state has an obligation to eliminate infringements. In addition, Plaintiff Preparatory Document 4 adds an argument regarding the unconstitutionality of consensual hospitalization and medical protection hospitalization from the perspective of restrictions on personal freedom. We will summarize the content of the plaintiff's arguments from the trial report materials from that day.

(1) Forced hospitalization without the need for inpatient treatment

In the previous (sixth) trial, the defendant country argued that the plaintiff's type of hospitalization was not a medical protection hospitalization because there was no periodic medical report in the patient's medical record. Regarding the type of hospitalization of the plaintiff, Mr. Ito, at the time of his admission to Futaba Hospital (1973), it was the era of the Mental Hygiene Law, and "voluntary hospitalization" did not yet exist in the system, so it was "hospitalization with consent" (currently medical protection hospitalization). It's clear that there was. However, due to the medical records being sloppy, it is not written how long the patient was hospitalized with consent, but since the written contents and the consent form for voluntary hospitalization were not attached, the date of the outcome in the medical record was 2003 (2003). I can only think of April 2003. Even if there is no mention of the type of hospitalization, it is clear that the patient was forced to continue to be hospitalized, and the responsibility of the state should not be denied just because it is not possible to determine the end of the period of medical protection hospitalization. .

It is clear that Mr. Ito did not need long-term hospital treatment from his condition at the time of admission and his condition after discharge. Many psychiatrists have testified that the reason Ms. Ito was not discharged from the hospital and various rights violations occurred due to the government's inaction is a problem with Japan's mental health laws and policies. This situation has arisen because the previous Mental Health Act and Mental Health Welfare Act have introduced a medical protection hospitalization system that gives extremely wide discretionary powers to doctors, and a de facto coercion system that does not guarantee the patient's voluntariness. This is because the voluntary hospitalization system that allows hospitalization has been neglected for many years. Furthermore, this is due to the neglect of the ``psychiatry special provisions,'' which have made it commonplace to have fewer staff members and have significantly lowered the quality of mental health care, leading to low medical costs and low labor costs. Furthermore, this is because the government has neglected to shift to a regional medical policy and provide guidance and supervision to psychiatric hospitals, and has left social inpatients without any active investigation or intervention. The plaintiffs argued that the laws and policies created by the government had caused the violation of Ms. Ito's rights by requiring her to be hospitalized for an unnecessary long period of time, and that it was natural for the government to have an obligation to eliminate the violation of her rights.

(2) The need for active relief by the state

One of the reasons why the state must proactively provide relief to socially hospitalized inmates is the psychological problem of the inmates. Studies such as sociologist E. Goffman's ``Asylum'' have shown that living in a closed facility for a long period of time leaves people in a state of apathy and powerlessness. The (former) National Federation of Families of the Mentally Disabled also conducted a nationwide survey on institutionalism and social hospitalization, and found that the structure of psychiatric medical care that produces "institutionalism" exists universally throughout the country. It has been revealed that the reasons behind this are low staff standards, low open bed rate, long average length of stay in hospital, lack of efforts to reintegrate into society, and lack of local social resources. Karen Monograph No. 15 "Research on the state of facility care for long-term hospitalized patients"). The plaintiffs argued that only the state can resolve these backgrounds, and that the state has an obligation to the plaintiffs to eliminate rights infringements.

(3) Unconstitutionality of medical protection hospitalization

The plaintiff's legal team has long argued that medically protected hospitalization is unconstitutional. This time, I made an additional argument from the perspective that forced hospitalization is itself a restriction on personal freedom. The consent hospitalization system, which did not require a patient's lack of decision-making capacity as a requirement for compulsory hospitalization, is clearly unconstitutional, and the medical protection hospitalization system, to which this requirement was later added, has left ambiguous hospitalization requirements and is still poorly processed. This remains sufficient and violates Article 31 (guarantee of due process) of the Constitution. In fact, since 1983, there have been more than 50,000 hospitalized patients with a condition called social hospitalization, and it is clear that medical protection hospitalization is not strictly implemented. In addition, the limited constitutional interpretation* has not been implemented, and it can be said that medically protected hospitalization is unconstitutional.

*Limited interpretation of constitutionality: Although there is room for a law to be judged unconstitutional, the court interprets it as constitutional by restricting the meaning of the provision, which is one way to avoid a judgment of unconstitutionality.

2. 8th date (August 22, 2022)

Last time (7th session), the plaintiff claimed inaction on the part of the executive branch (Minister of Health, Labor and Welfare), but this time, the plaintiff once again presented "Plaintiff Preparation Document 5" and evidence showing inaction on the part of the legislative branch (National Diet). Materials have been submitted. The defendant in this case is the government, and it is not only holding the Ministry of Health, Labor and Welfare responsible for its inaction, but also the Diet, which has not amended or repealed the law.

In order to enumerate the inaction of mental health policy in the legislative branch, the defense team examined a huge amount of parliamentary minutes spanning approximately 0 years from 1965 to 2005. Although the expert committee of the National Institute of Mental Health and Physical Education is assisting in the search for materials, the presentation of evidence was the result of the steady search work of the defense team. This is an extract of questions asked by members of the Diet (ruling and opposition parties) in the Diet (House of Representatives and House of Councilors), answers by the Minister of Health, Labor and Welfare (Labor) and government members, and opinion statements by witnesses. This work revealed that ministers and parliamentarians recognized and discussed the various issues surrounding psychiatric care at an early stage.

The main points of discussion in the Diet are: (1) the issue of social hospitalization (including social reintegration measures), (2) the issue of psychiatric special provisions, (3) the issue of psychiatric medical review boards, (4) conversion to community mental health care, and (5) medical protection. These include problems with the hospitalization system, (6) problems with the voluntary hospitalization system, and (7) problems with the isolation and detention policy similar to Hansen's disease. Issues surrounding psychiatric care have been repeatedly debated in the Diet, and it is clear that both the Diet members and the government were aware of the many issues, and that, despite being obligated to act, they have postponed fundamental reforms rather than embarking on them. We are holding the legislature accountable for its inaction.

In the preliminary document, the president of the Japan Psychiatric Hospital Association also criticized that ``so-called social hospitalization is a product of the government's inaction,'' and ``the government should apologize to the mentally ill, the mental health care workers, and the public.'' I also add that there are.

Until now, trials have been held roughly every two months, but the defendant state requested that the trial date be set three months later, saying that it would take some time to make a counterargument, and the ninth trial date was set on November 11. It was set as the 29th (Tuesday) of the month.

3. Towards the 9th date

At the 9th oral argument, the defendant country will submit a brief presenting its rebuttal. It will be interesting to see what kind of argument will be made against the evidence presented by the plaintiff's defense team.

Since the second session, the largest courtroom in the Tokyo District Court (Courtroom No. 103: 100 seats) has been used, but the restriction on the number of seats (1/2 = 50 seats) due to coronavirus measures has been lifted. Because of this, there were noticeable empty seats among the 30 to 40 spectators, and there was a possibility that the court would be changed to a smaller courtroom. If you have time, please come to the Tokyo District Court.

Quote source

Ryuta Furuya, “Summary of the 7th and 8th Oral Arguments: Pursuing the Responsibility of the Executive and Legislative Branches for Inaction,” Shinkokubai Tsushin, No. 26; 1-3, published October 2022.

◆6th Oral Argument February 24, 2022

1. Unprecedented trial and debriefing session

The 6th oral argument was held at the Tokyo District Court on Thursday, February 24, 2022. This time, something a little unusual happened, so I would like to report it in some detail.

From 11 a.m., I was standing in the lobby of the district court, forming a circle with the members who had gathered, and applauding Tokio Ito, who celebrated his 71st birthday on the 22nd, saying, "Congratulations!" when I heard a security guard say, We were warned that "gatherings are prohibited."

There were 37 people in the audience seats in Courtroom 103, and a total of 42 people including the plaintiffs and their lawyers. Even though both the plaintiff and defendant were present, the judge did not appear and the trial was delayed. The presiding judge finally appeared, unlike the previous judges, and simply greeted him by saying, ``I have been replaced.'' At the beginning of the trial, the judge asked those in the audience who were not wearing masks to wear them, but they refused, so he alerted those around them to be careful.

The trial itself only consisted of confirming the preliminary documents submitted by the defendant country and adjusting the next date, and was over in about 5 minutes after the court opened.

Afterwards, the debriefing session was held with the participants taking taxis to an inexpensive rental conference room near Shinbashi Station (all taxi costs were covered by the association's expenses, but it was still in the vicinity of Kasumigaseki). It was much cheaper than renting an expensive conference room.)

The debriefing session turned into a luncheon meeting. There were 53 participants in total, 36 in-person and 17 via Zoom. During the lawyer's report scene, Zoom crashed once, so I asked Mr. Hasegawa again to talk about the contents of the defendant's prepared statement (rebuttal). We also apologize for the inconvenience that the "debriefing materials" distributed at the venue could not be shared on screen for some reason, making it difficult for everyone participating on Zoom to understand.

The content of the counterargument in the "preparatory document (4)" submitted by the defendant country in this trial can be summarized as shown in the brackets below.

2. Regarding the plaintiff's hospitalization type

Regarding whether Ms. Ito was admitted with her consent/medically protected, the defendant state stated, ``Since there is no regular medical condition report written in the medical record, it was not a medically protected hospitalization.'' ``The guardian's notes were present regardless of the type of hospitalization, and the guardian's notes are not related to the type of hospitalization, and the record of the outcome date is also not related to the change in the type of hospitalization.'' .

It's hard to understand, so I'd like to add that this is a point of contention because the medical records were sloppy. Normally, the period of hospitalization and type of hospitalization are written at the beginning of the medical record at any hospital, but this information was missing. Also, whether it is voluntary hospitalization or medically protected hospitalization, there are documents related to the type of hospitalization that are bound in the patient's medical record, but I cannot find them. One of the issues at issue in this case is the ``medical protection hospitalization'' system. The defendant country argues that since there is no evidence in the medical records that Ms. Ito was admitted for medical protection, the plaintiff is not entitled to complain about the unfairness of her hospitalization.

3. Regarding legislative inaction

(1) Regarding the necessity of hospitalization

In response to the plaintiff's argument that ``there is no legal fact that there are cases in which the patient is unable to make an appropriate judgment regarding the necessity of hospitalization and is unable to protect his or her own interests.'' The defendant state stated, ``It is possible that a patient with schizophrenia may be unable to seek treatment voluntarily due to the effects of their symptoms and medical condition.There are cases where compulsory hospitalization may be necessary to protect the patient's interests.'' Yes," he argues.

(2) Regarding the determination of medical protection hospitalization

In response to the plaintiff's argument that ``according to the legal text of medical protection hospitalization, it is not limited to cases where the ability to make decisions has deteriorated, and it cannot be understood that there is a legitimate purpose.''

The defendant country states, ``We have issued ``Guidelines for Handling Hospitalization for Mentally Disabled Persons and Consent Hospitalization,'' and allow voluntary hospitalization.'' Furthermore, ``a judgment by a ``designated mental health physician'' whose quality is ensured and legitimacy is ensured through rigorous screening and regular training is required, and hospitalization is not permitted indefinitely.'' No,” he argues.

(3) Regarding the ambiguity of “protection” in medical protection hospitalization

In response to the plaintiff's argument that ``the requirements for ``medical care and protection'' for medical protection hospitalization are ambiguous.''

The defendant state stated, ``As the uniqueness of mental illness means that each patient is treated differently, decisions regarding medically protected hospitalization should not be regulated by uniform standards, and doctors' discretion should basically be respected.'' "It should be done." ``Similar discussions were held when the law was revised in 1999, and it was decided that it was inappropriate to uniformly stipulate it as a standard based on the law,'' according to the study committee's discussion at the time. On the other hand, the above-mentioned notice of ``Guidelines for Handling Hospitalization for Mentally Disabled Persons and Consent Hospitalization'' indicates the standard for requiring hospitalization according to the condition of each disease, and furthermore, it requires the judgment of a designated physician. However, it is not left entirely to the discretion of the doctor."

(4)Requirements for parental consent and long-term hospitalization

According to the plaintiff's statement, ``The requirement of consent from parents, etc. cannot be considered as a justification for forced hospitalization; it obscures who is responsible for forced hospitalization, and on the contrary, it is the cause of long-term hospitalization like the plaintiff.'' Regarding that claim.

The defendant's side counters by saying, ``The requirement for parental consent has nothing to do with the cause of long-term hospitalization because the judgment is made by a designated mental health physician.''

(5)About the Psychiatric Review Board

In response to the plaintiff's claim that the ``Psychiatric Review Board is not functioning.''

The defendant country states, ``The actual circumstances of each case and problems in practical implementation do not meet the requirement of ``obvious infringement of rights,'' which is a requirement for illegality under the National Liability Law.'' Furthermore, the statement argues, ``The patient's medical records include entries such as overnight stays and outings, and it is difficult to say that there was actual treatment in the hospital that violated constitutional rights.''

4. Regarding the illegality of mental health policy

(1) Regarding special cases for psychiatry

The defendant country states, ``The content is not uniquely determined, and due to its nature, it cannot be said that it should be determined, and the Minister of Health and Welfare is not obligated to act.'' The lawsuit also argues that ``the plaintiff's claim is not specific regarding the causal relationship between the existence of the special psychiatric exception and the plaintiff's inability to be discharged from hospital.''

(2) Regarding the obligation to shift from isolation and detention policy to community medical care policy

The defendant country states, ``Depending on the plaintiff's argument, the Minister of Health and Welfare's obligation to act based on the article cannot be recognized.'' He also countered by saying, ``Based on the recommendations, the government has taken certain measures.''

5. Regarding the illegality of voluntary hospitalization

(1) Legislative inaction regarding the revision and abolition of voluntary hospitalization

The defendant country stated, ``In view of the purpose of the voluntary hospitalization system, the requirements and procedures for admission and discharge, etc., the provisions of the Mental Health Act and the Mental Health and Welfare Act that establish the voluntary hospitalization system do not ``clearly violate rights.'' ”. ``The idea that the meaning of ``voluntary'' includes not only the patient's request but also a condition in which the patient does not actively refuse is based on the idea that the central purpose of voluntary hospitalization is to promote hospitalization in a non-compulsory manner. In addition, given that the patient's intention is confirmed in writing, restrictions on discharge are limited, and requests for discharge are possible, long-term hospitalization is possible without unlimited voluntary hospitalization. "I can't say that there is," he argues.

(2) Regarding the inaction of the Minister of Health and Welfare

The defendant country states, ``Depending on the plaintiff's argument, the Minister of Health and Welfare's obligation to act based on the article cannot be recognized.'' The lawsuit also argues that ``there is no specific allegation or proof that the plaintiff was unable to be discharged from voluntary hospitalization, and there is no record of this in the plaintiff's medical record.''

6. Discussion at the debriefing session

As mentioned above, the defendant country is trying to dismiss the plaintiff's question of inaction by the Legislature and the Minister of Health and Welfare using legal theory, stating that there is no obligation to act. In response to the defendant country's counterargument, those who participated in the debriefing session expressed various opinions. I would like to highlight some of the following:

① The existence and historical background of so-called ``voluntary hospitalization,'' which is not stipulated in the current law; ② Ambiguity in the procedures for compulsory hospitalization such as medical protection hospitalization and the criteria for determining ``protection;'' ③ Doctors' discretionary authority in the case of psychiatric hospitalization. (4) The need to evaluate the contents of the current Mental Health and Welfare Act in light of the Constitution, (5) The rapidly increasing number of isolated detentions that the Ministry of Health, Labor and Welfare should be aware of, etc. (6) The issue of in-hospital work such as in-hospital and out-of-hospital work that Ms. Ito was also engaged in, etc.

At the debriefing session, Mr. Ito also revealed a surprising fact about his stay at Futaba Hospital. Many questions and discussions and opinions were exchanged over an hour and a half.

7. next trial

The next 7th trial date is Monday, May 16th at 10am. This time, the plaintiff's defense team will make a second argument against the defendant country. Now that we have a new presiding judge, we need to show that many people are paying close attention to how this trial will proceed. If you are available, please include this in your schedule and participate in the court viewing activities.

Source

Ryuta Furuya, “Defendant State Denies ``Obligation to Act'' - Report on the 6th Trial Date,'' Shinkokubai Tsushin, No. 22; 1-3, published March 2022.

◆5th Oral Argument December 6, 2021

On Monday, December 6th, the fifth oral argument in the Ito trial was held at the Tokyo District Court. This time, in response to the written rebuttal submitted by the defendant country last time (September 27), the defense team submitted ``Plaintiff Preparatory Document 2'' and presented a rebuttal. The main text alone is 50 pages long, so it is impossible to introduce all of it. In the courtroom that day, the following "summary" was read out by Attorney Hasegawa.

Plaintiff Preparation Document 2 (Summary)

1 Overview

Plaintiff Preparatory Document 2 first clarifies the plaintiff's hospitalization status based on the descriptions in the plaintiff's medical record (hospitalization medical records). We would like to draw your attention to the fact that the plaintiff, who did not require hospital treatment, continued to be forced to stay in the hospital despite repeated requests to be discharged. It is clear from the plaintiff's medical records that the plaintiff was forced to be hospitalized under the medical protection hospitalization/consent hospitalization system or the voluntary hospitalization system.

And the cause is not a problem with individual hospitals. This is the reality of Japan's mental health care. This is a flaw in laws such as the Mental Health Act, the Mental Health Act, and the Mental Health and Welfare Act, and it is also an issue of special provisions for psychiatry, which allows the minimum number of medical personnel. This is simply because the government has neglected to provide guidance and supervision to hospitals to ensure standards, and to provide relief to long-term hospitalized patients.

The history and progress of mental health care in Japan has been argued in the complaint and Plaintiff Preparatory Paper 1, but in Plaintiff Preparatory Paper 2, the actual situation is explained by citing the books of doctors and lawyers, or by the defendant's The actual situation is clarified in the refutation of the claim.

At the same time, Plaintiff Preparatory Paper 2 also alleges the unconstitutionality of the voluntary hospitalization system. The voluntary hospitalization system is not a normal hospitalization system like that used in other medical departments. In effect, it functions as a system that forces hospitalization.

The gist of this is described below.

2 Actual status of the plaintiff's hospitalization

First, plaintiff's preliminary document 2 discusses the plaintiff's type of hospitalization. In this regard, the medical records that the plaintiff received from the hospital do not clearly state the plaintiff's type of hospitalization. It is the reality of Japanese mental health care that such a situation occurs, but judging from the medical records, which emphasize the presence of guardians, the plaintiff was transferred to the hospital on September 2, 1973. It is understood that the patient was admitted as a consensual or medically protected hospitalization from April 30, 2003, and thereafter as a voluntary hospitalization.

Regarding the actual circumstances of the hospitalization, the plaintiff's condition is stable, and there is no need for hospitalization. One example of this is the following entry in the 1991 (Heisei 3) medical record:

"He is as calm as ever. He is working hard in the kitchen. He is calm and calm, without fighting with other patients in the ward. He is being treated kindly. Of course, he has not had any unusual experiences."

These plaintiffs repeatedly expressed their desire to be discharged throughout their hospitalization. However, this was completely denied. In some cases, the consent of the hospital director was given priority rather than that of the attending physician; in other cases, the family was held responsible for the lack of social resources, and that the discharge would not proceed unless the family accepted it; and even though some attending physicians were proactive about discharge, If the situation changes, discussions about discharge will not proceed at all, and not only will there be no consistency in what kind of treatment will be provided upon hospitalization, but the exact name of the disease and the condition will not be explained to the patient, and people will be told that they are not being hospitalized. I was led to believe that my condition would heal someday.'' There is little support for discharge.

Originally, in light of the plaintiff's medical condition, etc., it was fully possible for the plaintiff to continue treatment while living in the community, that is, even though there was no need for hospitalization, the plaintiff was forced to be hospitalized. This has continued to be the case.

As a result, the plaintiff lost his desire to be discharged from the hospital and was formally admitted to the hospital voluntarily, but this was not truly voluntary. In fact, because the patient was admitted voluntarily, violations of the plaintiff's rights were not checked and he was forced to stay in the hospital.

3 Japan's mental health system - national inaction

This is not a problem specific to the plaintiff or the hospital where the plaintiff was admitted. This is a problem with Japan's mental health care system.

Ryuichi Hirano, a lawyer who once served as a member of the Mental Health Subcommittee of the Public Health Council, said that when it comes to housing people with mental disorders in hospitals, it is ``easy to get in and easy to get out'', ``easy to get in and hard to get out'', ``hard to get in and easy to get out'', and ``easy to get out''. Diagrammatically there are four types: ``difficult to get in and difficult to get out''. Psychiatric care in Japan is nothing short of ``easy to get in and hard to get out.''

This kind of ``easy to get in, hard to get out'' mental health care is a policy of isolation and detention, and its human rights violations are extremely clear. Therefore, even in accordance with the Supreme Court's criteria claimed by the defendant, the legislative inaction is illegal, and the deficiency in the legal system, which does not consider hospitalization and discharge as two sides of the same coin, must be remedied by reason. Although the defendant claims that he has developed facilities and a care system in the community, mental health care in Japan remains ``easy to get in and hard to get out.''

The state must be held responsible for the infringement of rights caused to the plaintiff.

4 Problems with the voluntary hospitalization system

Additionally, as mentioned above, Plaintiff Preparation 2 further asserts that the voluntary hospitalization system is unconstitutional.

The voluntary hospitalization system was established in 1987 when the Mental Health Law was revised to the Mental Health Law.

This is different from normal hospitalization in other medical departments. "Consent" for voluntary hospitalization is interpreted to include a state in which the patient is able to refuse hospitalization, but does not actively refuse, and does not actively consent to hospitalization based on the patient's free will. This is not the only situation. Restrictions on discharge from hospital are also stipulated by law. Furthermore, under the voluntary hospitalization system, there is, in principle, no system to review the voluntary nature of hospitalization or the necessity of continued hospitalization. It is no exaggeration to say that there are many cases of closed treatment, and that compulsory hospitalization in the name of voluntary hospitalization has been established.

The plaintiffs are also victims, and the inaction of the National Diet in not amending or repealing such an unconstitutional law is illegal. The Minister of Health and Welfare's failure to correct the remuneration system and establish a system to supervise voluntary hospitalization is illegal.

Therefore, the defendant state is liable for compensation to the plaintiff even if the plaintiff's type of hospitalization is voluntary.

☆

The issue at issue in this case should be clear from the above ``gist'' alone. The plaintiff, Ms. Ito, was unjustly forced to stay in the hospital for a long period of time, even though her condition did not require hospitalization at all. This could be any hospital, not just an individual hospital. This is because it is a violation of rights caused by Japan's mental health legal system, which is ``easy to get in and hard to get out'' due to its segregation and detention policy. The defense team presented a variety of arguments and argued that the country was responsible for failing to make drastic policy changes and neglecting to provide relief to long-term hospitalized patients. Furthermore, it was argued that not only medical hospitalization but also voluntary hospitalization, which was never of the patient's free will, was unconstitutional due to its coercive nature.

The government's rebuttal to this plaintiff's argument will be presented at the 6th oral argument (February 24th). The National Institute for Mental Health Insurance has a policy of working with the defense team to search for and collect documentary evidence. We appreciate your understanding and cooperation.

Source

Ryuta Furuya, “Plaintiff Preparation for the 5th Oral Argument 2: Additional Allegation of Unconstitutionality of Voluntary Hospitalization,” Shinkokubai Tsushin, No. 20; 4-5, published December 2021

◆3rd Oral Argument June 29, 2021

We would like to report the summary of "Preparatory Document 1" submitted by the plaintiff's legal team in conjunction with the third oral argument (June 29th). Please note that the actual document is 64 pages long, so here is only a condensed summary. In response to the content of this document, the defendant country is scheduled to submit a written rebuttal on the fourth session (September 27th). The impressions of those who attended the trial are published after this report.

1. Summary of Preparatory Document 1

The defendant country's torts that the plaintiff alleges include: (1) legislative inaction in creating a medical protection hospitalization (consent hospitalization) system that violates human rights guaranteed by the Constitution and failing to amend or abolish it; and (2) a spirit that violates Article 14 of the Constitution. There is the inaction of the Minister of Health and Welfare in not abolishing the special provisions for the Department of Health and Welfare, and (3) the inaction of the Minister of Health and Welfare regarding mental health policy. In order to understand this, I will describe the historical progress regarding mental health care in Japan.

2 Facts

The plaintiff was forced to be admitted to a psychiatric hospital against his will for approximately 40 years from 1973 to 2012, but in the 1960s the defendant promoted a policy of isolated detention for mentally ill people. It was a time when In 1950, a consent hospitalization system was established in the Mental Hygiene Act, and special provisions were made for psychiatry, allowing psychiatric hospitals to be maintained with fewer medical personnel. In addition, the Medical Care Law was revised and the Medical Finance Corporation Law provided economic preferential treatment, making it easier to establish and maintain private hospitals. The defendant also issued notices and used compulsory hospitalization to lead the mentally ill to hospital. These segregation and detention policies created a situation in which psychiatric hospitals could continue to operate as long as they housed patients within the hospital.

Medically, antipsychotic drugs began to be released in 1955, and doctors began to see the prospect that patients could be discharged from hospital if treated. However, the defendant continued to ignore the findings of the mental health survey, the opinions of various councils, and the recommendations made by Clark, and instead proceeded with a policy of isolation and detention, without taking any measures to reintegrate him into society in preparation for his discharge. In Western countries, the number of psychiatric beds was reduced in the 1970s and a shift was made to community medical care, but in Japan, even after the number of required hospital beds was exceeded by the Medical Council in 1976, defendants continued to be kept in isolation. As a result, the number of psychiatric beds continued to increase until 1993.

Since the 1960s, mentally ill people who were hospitalized were unable to be discharged and remained in the hospital for a long time, and a 1983 mental health survey found that if the conditions were right, there were people who could be discharged. It turns out that there are about 100,000 people. However, facilities for reintegration into society were not developed, and tens of thousands of mentally ill people continued to be left without being able to leave the hospital, even though they did not need hospital care. The plaintiff is one of the patients who was forced to undergo such an unnecessary hospitalization.

It can be seen from the budget allocation that the defendant has not made any sincere efforts to rehabilitate mentally ill people. The national budget for people with mental disabilities continued to increase to approximately 85 billion yen from the late 1970s to around 1980, and more than 90% of this amount was for subsidized hospitalization. In 1970, social reintegration facility development was first budgeted for, but this accounted for only 0.1% of the budget for mentally ill people, and even in 1980 it accounted for 0.35%. In the 1980s, hospitalization subsidies were reduced, but the overall budget for mentally ill people continued to be reduced, and no funds were used to build facilities for reintegration into society. In addition, even now, 70% of medical expenses are inpatient medical expenses, and compared to other medical departments where the number of hospitalizations and outpatient visits are approximately equal, psychiatry is clearly focused on hospitalization.

3. Legislative inaction that did not reform or abolish medical protection hospitalization

Medical protection hospitalization has not essentially changed since it was established in the Mental Health Act as consent hospitalization. It is a system that violates important constitutional human rights such as freedom of body, freedom of movement, and the right to self-determination, and it also violates equality under the law in that it allows for forced hospitalization by private individuals only for people with mental disabilities. It is also contrary. Since the system's inception, the main purpose of consensual hospitalization has been to isolate and house mentally ill people, and it cannot be said that it has a legitimate purpose. There are only vague requirements for hospitalization, such as the need for medical care and protection, and without establishing strict screening standards, the requirements themselves are vague and unclear, allowing arbitrary implementation. In fact, there are also large regional differences.

Historically, the consent admission system, which was a free hand of hospital administrators, has been abandoned for nearly 40 years. The consent hospitalization system should have been abolished at the latest when the law was revised in 1987, but the requirements were not changed and the name was changed to medical protection hospitalization and it was preserved. Since then, there have been numerous opportunities for review, and calls for the abolition of the medical protection hospitalization system have been voiced by related organizations, but the requirements have only been slightly revised, and there has been no impact on the actual situation of medical protection hospitalization. No legislative action was taken to correct the issue. Such legislative inaction is illegal.

4 Inaction by the Minister of Health and Welfare who did not abolish the psychiatric special provisions

The defendant created a special exception for psychiatric patients and continued to leave psychiatric patients unable to receive the necessary level of medical care compared to other medical care. This is contrary to the latter part of Article 13 of the Constitution, Article 25 of the Constitution, and Article 14 of the Constitution.

5 Inaction by the Minister of Health and Welfare regarding mental health policy

The Minister of Health and Welfare's inaction regarding mental health policy includes the following:

(1) Violation of obligation to change from isolation and detention policy

Due to the country's isolation and detention policy, many people with mental disabilities are forced to remain in hospitals, depriving them of their lives. Since the defendant had personally created a state of serious human rights violation, he had an obligation to change his policy from isolated detention to community medical care in order to eliminate the situation. At the latest, after receiving the Clark Recommendation in 1968, which specifically specified the content of the duty to act, it would have been possible to proceed with the development of social reintegration facilities and the enhancement of community medical care. Despite this, the defendant did not even give any concrete consideration, and on the contrary, continued to increase the isolation and detention policy until around 1980, without setting up social rehabilitation facilities, and without providing budgetary measures or medical fees to improve community medical care. No changes were made. The Minister of Health and Welfare should have changed the quarantine policy to a regional medical care policy, but he did not do so.

(2) Violation of duty to provide guidance and supervision to psychiatric hospitals

The defendant had a duty to instruct and supervise to ensure that inpatient medical care was being provided appropriately so that hospitalization would not be prolonged longer than necessary or unnecessary hospitalizations would be avoided. There was also an obligation to ensure that the capacity was met and to supervise and correct the situation to ensure that the hospital did not become overaccommodated beyond the permitted number of beds. In addition, there was a duty to supervise compliance with health worker staffing standards. In addition, there was an obligation to establish a system to ensure appropriate medical standards, such as changing staffing standards, revising medical fees, and establishing an audit system.

Since the 1960s, improvement recommendations and Clark recommendations from the Administrative Management Agency have pointed out the institutionalization of patients due to inappropriate medical care and long-term detention, and it has become clear that many hospitals do not meet staffing standards and are overcrowded. It had become. Although this should have been corrected immediately, it continued to be neglected even into the 1980s. Furthermore, no system was established to ensure appropriate medical standards, such as changes in staffing standards or revisions to medical fees.

(3) Violation of duty to provide relief to persons who do not require hospital treatment

As a result of the defendant's policies, tens of thousands of people have been confirmed to have been forced to stay in psychiatric hospitals even though they should not have needed inpatient care and could have been discharged. Even after voluntary hospitalization was legally stipulated in the 1987 legal reform, the requirements for medically protected hospitalization remained unchanged, despite calls for clarification of operating standards. The Ministry of Health and Welfare is in breach of its duty to strictly apply such laws.

Furthermore, many patients who were forced to stay in psychiatric hospitals for long periods of time were formally switched to voluntary hospitalization, but by that time they had lost the will and ability to leave the hospital on their own. The plaintiff is one such patient. The government should proactively investigate and intervene for such patients, and has an obligation to proactively eliminate such unnecessary hospitalizations through relief measures such as policy support, revision and abolition of laws, and improvement of law enforcement. there were. However, the Minister of Health and Welfare has continued to ignore this issue since 1987.

6 Summary

Therefore, the plaintiff holds these defendants responsible for their tortious acts.

that's all

Quote source

Ryuta Furuya “Report on the 3rd Oral Argument - Outline of Plaintiff's Preparation Document -” Shinkokubai Tsushin, No. 16; 1-3, published July 2021

◆4th Oral Argument September 27, 2021

The 4th oral argument was held at the Tokyo District Court on Monday, September 27, 2021, from 4:00 p.m. This time, the defendant country presented a rebuttal to the preliminary documents submitted by the plaintiff last time.

A total of 60 people participated in the post-trial debriefing session, 35 in person and 25 via Zoom. Due to an internet glitch, some of the broadcasts were interrupted, and we apologize to those who participated via Zoom. Once again, I would like to summarize the contents of the state's rebuttal written by the defense team.

1. From start to finish on legal theory

The counterargument presented by the government this time can be broadly divided into two parts: (1) "Regarding the plaintiff's allegation regarding legislative inaction by members of the Diet," and (2) "Regarding the plaintiff's allegation regarding the Minister of Health and Welfare's inaction." In both cases, the ``premise'' at the beginning is the legal theory of what is meant by ``illegal'' in Article 1, Paragraph 1 of the National Liability Claim Procedure Law. (Hereinafter, the contents of "Preparatory Document 3" submitted by the defendant country are summarized and indicated in " ".)

(1) Regarding legislative inaction by members of the Diet, it states that ``it does not depend on whether a violation of rights has occurred as a result, but is limited to cases in which they violate legal obligations in the course of their duties.'' Citing Supreme Court precedent, it states that ``if it is clear that the content of legislation or legislative inaction violates the constitutionally guaranteed rights of the people,'' and ``the people have an opportunity to exercise their constitutionally guaranteed rights.'' It is essential to take the necessary legislative measures to ensure that the law is in place, and this is limited to exceptional cases, such as when the Diet fails to do so for a long period of time without justifiable reason, even though it is clear that this is the case.'' doing.

② Regarding the Minister of Health and Welfare's inaction, ``the act of the public servant in question was obligated as a ``legal obligation in the line of duty,'' and the public servant required to perform the act must be aware of the content of his duty of care and do his best.'' It must be clear enough that it is possible to do so." ``Determinations must be made in a manner that conforms to the principles of legal administration, and a wide variety of content, methods, and responses are required depending on the situation, in light of the underlying legal provisions, purpose, and purpose, etc. This is an administrative policy, and if the content is not univocally determined, there is no room for it to be interpreted as a legal obligation on the job." ``There must be a breach of a legal obligation owed to the person.''

For those outside the legal field, the words are difficult to understand, but in light of this ``premise,'' it cannot be said that the content of the plaintiff's complaint is illegal under the National Liability Law, and that the legislative branch (National Diet) and the executive branch The plaintiff claims that the (Ministry of Health, Labor and Welfare) is responsible for inaction (not doing anything that should have been done), but the government denies that it has any responsibility to respond. In the first place, from a legal perspective, this lawsuit is being dismissed completely as not being established.

According to one of the plaintiff's lawyers who was also involved in the former Eugenics Protection Law lawsuit, ``It feels like we are being shown the same copy-pasted text.'' Since the case is handled by the same litigation specialist, the wording is likely to be similar, but it is probably a common ``premise'' used by the government when it attempts to dismiss the case against a citizen seeking national compensation.

2. Specifics regarding legislative inaction

Regarding the legislative inaction by the Diet members, they argue that (1) ``the period of the plaintiff's consensual hospitalization or medical protection hospitalization is not clear,'' and 2) ``It cannot be said that the illegal violation of rights is obvious.''

Regarding ①, the medical records at Futaba Hospital, where Mr. Ito was hospitalized, were sloppy and there was no record of when the transition from medical protection hospitalization to voluntary hospitalization occurred. It is presumed that the patient was admitted to voluntary hospitalization upon the death of his father, who was his guardian (obligation), but it is troubling that the voluntary hospitalization document signed by the patient is no longer available.

Regarding ②, the government stated, ``Consensual hospitalization and medically protected hospitalization are different from other illnesses, in cases of mental disorders, where the person is not aware that he or she is sick, This takes into account the fact that a person may be unable to make decisions and protect his or her own interests.'' ``Restrictions on movement during hospitalization are limited to cases where the designated doctor (or the doctor in consent hospitalization) recognizes the need for hospitalization for medical and protection purposes and the consent of the person responsible for protection is obtained.'' Restrictions on sending and receiving letters, telephone calls and meetings with lawyers are prohibited, isolation and physical restraint can only be performed by a designated doctor, and standards for treatment are also established. I am claiming. ``For consensual hospitalization, notification is required to the governor, and if the governor deems it necessary after investigation, two or more expert doctors can conduct an examination.In medical protection hospitalization, along with notification, periodic "They are required to report their medical conditions, the contents of which are examined by the Mental Health Review Board, and in addition, a discharge request system is allowed." I object that I can't say it.

3. Specifics regarding administrative inaction

Regarding the Ministry of Health, Labor and Welfare's administrative inaction, we refute the following points: (1) the evaluation of the psychiatric special case, and (2) the plaintiff's allegation of legal inaction.

Regarding ①, it states that ``the Medical Care Act does not stipulate a specific standard for the number of patients by law.'' ``The special provisions for psychiatry are based on the fact that many mental illnesses are chronic diseases, or their conditions rarely change suddenly.'' It is not something that can be determined uniquely and cannot be said to be illegal under the National Liability Law." The lawsuit also argues that ``the plaintiff has not specifically asserted or proven that the plaintiff was unable to receive adequate medical care due to the existence of special psychiatric provisions.'' The plaintiffs are required to prove the causal relationship that Ms. Ito was forced to stay in the hospital for a long period of time due to the psychiatric exception.

Regarding ②, it states that since ``there is no specific legal provision for a theoretical obligation to act,'' ``there is no room for it to become a legal obligation based on the duties described in the premise.'' Therefore, ``the Minister of Health and Welfare is not guilty of any illegality,'' and ``the Minister of Health and Welfare cannot be recognized to have had any legal obligations in relation to the plaintiff.''

Furthermore, the government has (1) revised the Mental Hygiene Act (assignment of mental health counselors, establishment of mental health centers, support for counseling at home, etc.), and (2) developed social reintegration facilities (social reintegration facilities for people recovering from mental disorders). , day care facilities, mental health and social life accommodation facilities, etc.), 3. Medical fees have been revised (occupational therapy, day care, night care, group psychotherapy, visiting nursing/guidance fees, etc.), 4. Community mental health measures have been promoted. (outpatient rehabilitation projects, counseling and guidance projects for reintegration of mentally ill people into society, supplementary budget for small workshops, etc.), ⑤ Enacted the Mental Health Act (increased budget for social reintegration facilities for mentally ill people, social reintegration measures, etc.), ⑥ The Mental Health and Welfare Act has been revised (creation of mental health and welfare centers, local mental health councils, notebook system, enhancement of social reintegration facilities and projects, regional mental health and welfare measures, formulation of plans for persons with disabilities, increase in mental health and welfare-related budgets) etc.), 7) It also provides guidance to psychiatric hospitals (issues notices, etc. requesting respect for the personality of inpatients, treatment that does not violate human rights, and proper operation of the consent hospitalization system, and the Minister of Health and Welfare is providing on-the-job guidance and If requested by the Psychiatric Medical Examination Board, it would have been possible to provide guidance and supervision by exercising the above-mentioned supervisory authority, etc.).

Four. Evaluation of the defendant country's counterargument

The government maintains that it has carried out its duties according to the circumstances at the time, and has never been inactive. The various measures mentioned above have been realized little by little due to the demands and campaigns of those involved, but the Ministry of Health, Labor and Welfare's assertion that it has done everything it can gives a painful impression. Looking at the items listed, it is clear that no strong intervention measures have been taken against psychiatric hospitals. The more positively the Ministry of Health, Labor and Welfare shows its achievements to date, the more negative problems that have not been addressed, i.e., administrative inaction, will be exposed.

The central bureaucrats in Kasumigaseki are extremely talented people. It is not that the Ministry of Health, Labor and Welfare is unaware of the current state of mental health care. Despite knowing the various facts, the government has been unable to step into psychiatric hospitals. The collusion of political, financial, and public officials related to the interests of the Psychiatric Hospital Association, which has strong political power, has turned the policy-making process related to mental health care into a black box. Looking at the rebuttal written by the defendant country in this case, there is a sense of complacency based on ``adult circumstances'' that avoids touching on the ``inconvenient truth'' about psychiatric hospitals in this country. It is unfortunate that vested interests and ministerial interests that must be protected are prioritized instead of confronting the plaintiffs.

The Institute for Mental Health Insurance and the plaintiff's lawyers will not just engage in dogfights over legal theory, but will pile up concrete facts experienced by mental health care users to show the actual situation and hold the country responsible for its neglect through inaction. I would like to appeal to the authorities.

Quote source

Ryuta Furuya, “Ministry of Health, Labor and Welfare Avoiding Inconvenient Truths: Summary of Defendant State’s Rebuttal Written at the 4th Oral Argument,” Shinkokubai Tsushin, No. 18; 1-3, published October 2021.