List of Issues:

1. Hospitalization and Discharge
   
   

   Is the reason for hospitalization notified to those hospitalized involuntarily?
   
   

   Can patients choose their proxy in requesting for discharge with the Psychiatric Review Board? Do they have a right to proxy at the public's expense?
   
   

   Are patients or their proxy entitled to access materials submitted by hospitals to the Psychiatric Review Board?
   
   

   Does the Psychiatric Review Board provide for concrete reasons for the necessity to continue hospitalization in rejecting patients' request for discharge?
   
   

   Can patients bring to the court complaints against the rejection of their requests for discharge?
   
   

2. Psychiatric Review Board
   
   

   Does the Psychiatric Review Board have its own budget and office, or is it operated under the budget of and by the personnel of the local government?
   
   

3. Habeas Corpus Law
   
   

   Is the Habeas Corpus Law employable to discharge a patient when his illness cured earlier than diagnosed?
   
   

4. Right to Compensation
   
   

   Besides under the State Redress Law and the Civil Code, is there a system to pay compensation to those who were hospitalized unnecessarily or for other unlawful reasons?
   
   

5. Treatment of Patients
   
   

   How are the stipulations under Articles 10 and 7 of the Covenant safeguarded concerning the treatment of patients in medical facilities for the mentally ill?
   
   

   Are there any laws and regulations concerning the standard of treatment of mentally-ill patients? If there are, please elaborate on the content.

Background:

1. Article 9 paragraph 2 of the Covenant stipulates that notification of reasons of arrest is applicable for detention on the ground of mental disorder. This provision substantiates paragraph 4 of the same Article that sets out the detainee's right to bring a claim to a court on the lawfulness of his/her detention. Therefore, the reasons of detention of the mentally ill must be comprehensively shown. However, the current practice in Japan hardly meets the requirements of Article 9, paragraph 2 since involuntary patients are notified only 1) that the diagnosis of a Designated Physician for Mental Health recognized the necessity of hospitalization, and 2) of legal provisions that constitute the basis of the hospitalization.
   
   The Psychiatric Review Board qualifies only lawyers to be the proxy of patients, excluding their family or medical experts, while having no system to hire a lawyer for them at the public's expense. Consequently, most of the requests for discharge are filed by patients without a proxy.
   
   Materials submitted by hospitals to the Psychiatric Review Board in connection with requests for discharge are not disclosed to the patients or their proxy (lawyer). Therefore, it is impossible for patients or their proxy to prepare sufficient counter-arguments.
   
   In practice, most cases of a decision to reject a request for discharge are made by the Psychiatric Review Board with a simple description that it decided "the hospitalization will continue." Concrete reasons for the necessity of continuation are left unknown to the patients and their proxies.
   
   The Ministry of Health and Welfare's position is that the patients are not entitled to make complaints against the Psychiatric Review Board's decision to continue their hospitalization. In reality, no court has ever upheld complaints in this regard. These conditions are an infringement of Article 9, paragraph 4 of the Covenant.
   
   
2. In terms of the budget and office, the Psychiatric Review Board has no independence as it is placed under the mental health department of the local government. Therefore, decisions by the Psychiatric Review Board are not substitute to those of the court.
   
   
3. The Third Petit Bench of the Supreme Court held that the remedies under the Habeas Corpus Law are applicable only where it was explicitly unnecessary to hospitalize a person (May 25, 1971). This decision indicates that the Habeas Corpus Law is not applicable in circumstances thereafter, namely during hospitalization when a person is cured earlier than diagnosed or other cases where further hospitalization became unnecessary. Remedies under the Habeas Corpus Law, therefore, do not meet the requirement under Article 9, paragraph4 of the Covenant.
   
   
4. Only criminal detainees can claim compensation against detention without fault. In order for mentally-ill patients to receive compensation, they must prove failure on the part of the doctors or other counter-parties. However, this practice differs from compensation that is provided under Article 9, paragraph 5 of the Covenant. While a new law is necessary to meet the said stipulation, the government has taken no measures in this regard.
   
   
5. The current law stipulates that the Minister of Health and Welfare or the governor of a prefecture can have its officers or designated doctors visit a hospital to examine the treatment of patients. In practice, this visit is hardly effective as it is conducted upon notice. There are still a number of cases in which the treatment of patients falls short of the requirements under Articles 7 and 10 of the Covenant (involuntary hospitalization without due reasons, non-notification of the rights of patients, limitation on the use of the telephone, aggressive hindrance of the meeting or communications between patients and lawyers). These conditions violate Articles 7 and 10 of the Covenant.
   
   There are no regulations for the treatment of mental patients except for Cabinet Orders on communications/meetings and isolation/detention. One provision states that a superintendent of a mental hospital "can place necessary limitations on the activities of patients to the degree that is indispensable for medical treatment and protection." In reality, however, there are a number of cases of unreasonable restrictions on patients' activities. This condition also contravenes Articles 7 and 10 of the Covenant.