Since around 2000, some violent crimes have allegedly been committed by offenders with a history of hospitalization for mental illness. Due to the mass media's sensational coverage of these crimes - including the Nishitetsu bus-jacking case and the notorious Ikeda Elementary School case - there has been a growing sentiment among the Japanese public that people with mental disability accused of crimes should not, for the sake of social safety, be allowed to go free.
In response to this sentiment, in the spring of 2002 the Japanese government and ruling Liberal Democratic Party drafted the Law Concerning Medical Treatment and Observation of People Who Have Committed Grave Acts Against Others While in a State of Insanity (The New Law). This New Law, which imposes indefinite hospitalization on people accused of committing serious crimes in a state of insanity, has become controversial in Japan. Mental patients' groups staged protests for over a year, arguing that The New Law would incite discrimination against people with mental disabilities. Despite this opposition, the New Law was adopted in July 2003.
The JCLU's Committee on Human Rights of People with Mental Disabilities began researching the New Law in June 2001, and hosted two seminars to analyze the law with experts, people with mental disabilities, and citizens. The first two articles in this feature present the results of the committee's research from the perspective of international human rights, as well as an outline of the New Law. After a year of research, the JCLU released a comment opposing the New Law. An outline of this comment can be found at the end of this feature.
In the current system, a prosecutor can order a summary psychiatric examination when the mental responsibility of the accused is in doubt. If the result of the examination is criminal insanity or quasi-criminal insanity, the accused is sent to a mental hospital and not prosecuted in accordance with the present Mental Health Law.
In Japan, prosecutors are extremely afraid of judgments that find the accused innocent, so they tend to readily order psychiatric examinations to keep the court from judging that the accused has no mental responsibility. This prosecution policy sends many of the accused to mental hospitals rather than to prison, and detains them in these hospitals longer than the normal duration of imprisonment.
The criterion for selecting a doctor to conduct the examination is unclear. Most of these doctors are not sufficiently trained in forensic psychiatry. Furthermore, there are not enough doctors. In Osaka, for example, at one point just one doctor was conducting all the examinations.
Not only does the new system reviewed in this article fail to remedy such problems, it makes the situation worse in terms of patients' rights.
On May 22, 2002, the JCLU held a symposium titled Crime and Human Rights of People with State of Insanity, following its annual General Assembly at Plaza F in Yotsuya, Tokyo. Mr. Yoichi Kitamura (Lawyer) and Ms. Nobuko Kobayashi (Tokyo Centre for Mental Health & Human Rights), both of whom were JCLU directors, discussed the newly proposed law. Professor Saku Machino also made comments.
Yoichi Kitamura
Mr. Kitamura first outlined the New Law. Crimes targeted by this law include arson, forcible indecency, rape, homicide, homicide with consent, injury, robbery, constructive robbery, and attempts to commit these crimes. People accused of committing these crimes but who are acquitted or not prosecuted due to criminal insanity enter into the following process stipulated by the New Law.
The prosecutor files the case in District Court. The judge then orders hospitalization of the accused to determine if he or she is criminally insane, and the results of this examination are reviewed by a collegiate body consisting of one judge and one Mental Health Hearing ExaminerE(psychiatrist). Then, one of three things occurs. If it is determined from the examination that the accused may commit serious crimes in the future if left untreated, then either inpatient or outpatient treatment for mental illness is required. If it is determined that the accused is not dangerous, then no treatment is required.
The period of hospitalization ordered by the Court is not defined by the New Law. The Court reevaluates the situation every six months, and mandatory outpatient treatment is limited to three years and can be prolonged for two years. In each case, the accused can apply to terminate his or her treatment.
Next, Mr. Kitamura described the examination, which is conducted by the collegiate body consisting of a judge and a psychiatrist. Comments can be submitted to the body by the accused, the guardian of the accused, the prosecutor of the case, the hospital treating the accused, and the probation office. The decision is made by consensus of both the judge and psychiatrist.
Although the court proceeding is not, as a rule, open to the public, victims of the case can sometimes observe it with court approval. The proceeding is conducted under court authority, and it is unclear as to whether the parties can participate well in the process. The accused, prosecutors, etc. can appeal the judgment of the proceeding.
Nobuko Kobayashi
The next speech, made by Ms. Kobayashi, was titled The Status of Mental Health from the Perspective of Patient Advocacy.EMs. Kobayashi was critical of the New Law but emphasized that opposition to the law does not mean support for the status quo. She made the following observations.
The summary psychiatric examination system is controversial and does not have a sound basis in forensic psychiatry. In addition, Japan still maintains the largest number of psychiatric beds in the world, meaning that a locked ward policy of hospitalization,Ein which patients are hospitalized for long durations, is the main treatment for mental health problems.
According to Medical Law, psychiatric services - namely mental hospitals - have fewer human resources than other medical services. At the same time, community mental health services are not sufficiently developed to meet the needs of people with mental health problems.
These issues have already been pointed out by international organizations, which have repeatedly recommended improvements to the Japanese mental health system and patients' rights.
The New Law's follow-up system, which has probation officers check up on outpatients, does not seem realistic considering current community care resources. At the moment, public health centers are responsible for the care of people with mental disabilities, but their services have been diminished by the recent wave of administrative reform. It is unlikely that non-experts, such as probation officers, would be able to promote sufficient social rehabilitation.
Ms. Kobayashi concluded by saying that the New Law emphasizes the importance of a safe society but does not reflect the opinions and needs of mental patients. She asserted that in Japan, where patients' rights are not established, the New Law would cause mental patients to be marginalized.
After the two speeches, various audience members made comments. Among them was Professor Saku Machino, JCLU Director, who stated his view that the New Law proposes to avoid excessive detention, with the pretext of social safety concerns, through the establishment of a mental health system at the local community level. He also stressed that the complete withdrawal of the law was never constructive.