2017.12.18

2017 (I-He) 16

Keishu Vol. 71, No. 10

Decision on the treatment system under the Act on Medical Care and Treatment for Persons Who Have Caused Serious Cases Under the Condition of Insanity and on Article 14, Article 22, paragraph (1) and Article 31 of the Constitution of Japan

Case of re-appeal against a ruling to dismiss an appeal against a ruling to hospitalize a person for medical care

Decision of the Third Petty bench, dismissed

Tokyo High Court, Decision of July 14, 2017

The treatment system under the Act on Medical Care and Treatment for Persons Who Have Caused Serious Cases Under the Condition of Insanity does not violate Article 14 or Article 22, paragraph (1) of the Constitution of Japan or the legal intent of Article 31 of the Constitution.

Article 14, Article 22, paragraph (1) and Article 31 of the Constitution of Japan and Article 1, paragraph (1), Article 11, paragraph (1), Article 24, Article 25, paragraph (2), Article 30, Article 31, paragraphs (3) and (6), Article 32, paragraph (2), Article 35, Article 39, paragraphs (1) and (3), Article 42, paragraph (1), items (i) and (ii), Articles 50 and 55, and Article 64, paragraph (2) of the Act on Medical Care and Treatment for Persons Who Have Caused Serious Cases Under the Condition of Insanity



the Constitution of Japan

Article 14. All of the people are equal under the law and there shall be no discrimination in political, economic or social relations because of race, creed, sex, social status or family origin.

Peers and peerage shall not be recognized.

No privilege shall accompany any award of honor, decoration or any distinction, nor shall any such award be valid beyond the lifetime of the individual who now holds or hereafter may receive it.

Article 22. Every person shall have freedom to choose and change his residence and to choose his occupation to the extent that it does not interfere with the public welfare.

Article 31. No person shall be deprived of life or liberty, nor shall any other criminal penalty be imposed, except according to procedure established by law.

Act on Medical Care and Treatment for Persons Who Have Caused Serious Cases Under the Condition of Insanity

Article 1

(1) The purpose of this act is to strive to improve the medical condition of persons who have caused serious cases (meaning acts that cause harm to others; the same applies hereinafter) under the condition of insanity and to prevent the occurrence of similar cases associated with such condition, by providing such persons with continuous and appropriate medical care and with monitoring and guidance necessary to ensure such medical care, through establishing a procedure, etc. for determining appropriate treatment for such persons, thereby facilitating their reintegration into society.

Article 11

(1) Notwithstanding the provisions of Article 26 of the Court Act (Act No. 59 of 1947), a District Court shall handle a treatment case by a panel consisting of one judge and one mental health evaluator; provided, however, that this shall not apply to matters otherwise specifically provided in this act.

Article 24 (1) If necessary to make a decision or give an order, an investigation of facts may be conducted.

(2) The investigation of facts as referred to in the preceding paragraph may be conducted by a member of the panel (excluding the mental health evaluator) or may be entrusted to a judge of a District Court or Summary Court.

(3) If deemed necessary to conduct the investigation of facts as referred to in paragraph (1), examination of witnesses, expert examination, observation, seizure, search, interpretation and translation may be conducted and reports of necessary information, submission of materials and other cooperation may be requested from public agencies, medical institutions and other public or private organizations; provided, however, that seizure may be executed only after ordering the owner, holder or custodian of the subject of the seizure in advance to submit such subject.

(4) The provisions of the Code of Criminal Procedure concerning examination of witnesses, expert examination, observation, seizure, search, interpretation and translation shall apply mutatis mutandis to any examination of witnesses, expert examination, observation, seizure, search, interpretation and translation conducted under the provisions of the preceding paragraph, unless inconsistent with the nature of the treatment case.

(5) If the subject goes missing, the court may request the chief of the competent police station to investigate his/her whereabouts. If a police officer finds the subject in such case, such police officer shall immediately notify the court thereof.

Article 25

(2) The subject and his/her custodian and attendant(s) may express their opinions and submit materials.

Article 30 (1) The subject and his/her custodian may appoint an attorney(s)-at-law as an attendant(s) of the subject.

(2) Under exceptional circumstances, the court may limit the number of attendants in accordance with the provisions of the Rules of the Supreme Court.

(3) If a subject has no attendant and if the court considers the subject needs an attendant(s) considering the condition of his/her mental disorder, the court may assign to the subject an attendant(s) who is/are an attorney(s)-at-law.

(4) The attendant to be assigned by the court under the provisions of the preceding paragraph shall be appointed in accordance with the provisions of the Rules of the Supreme Court.

(5) The attendant who was appointed in accordance with the provisions of the preceding paragraph may claim travel expenses, daily allowances, accommodation expenses, and fees.

Article 31

(3) The inquiry on the date for inquiry shall be closed to the public.

(6) The subject’s custodian (in case of the mayor of a municipality who shall act as the subject’s custodian pursuant to the provisions of Article 23-3, including personnel designated by such mayor) and attendant(s) may attend on the date for inquiry.

Article 32

(2) Notwithstanding the provisions of the preceding paragraph, the relevant public prosecutor, the administrator of the relevant designated inpatient medical institution or the physician designated by such administrator, the head of the relevant probation office or the rehabilitation coordinator designated by such head, or the subject’s attendant(s) may inspect records or articles of evidence of the treatment case after an application has been made pursuant to the provisions of paragraph (1) of the following article, Article 49, paragraph (1) or (2), Article 50, Article 54, paragraph (1) or (2), Article 55 or Article 59, paragraph (1) or (2) until a decision made in response to such application has been finalized.

Article 35 If an application has been made under Article 33, paragraph (1) and if the subject has no attendant, the court shall assign an attendant(s) to the subject.

Article 39

(1) If an application has been made under Article 33, paragraph (1), the court shall set a date for inquiry; provided, however, that this shall not apply if no objection is raised by the relevant public prosecutor or the subject’s attendant(s).

(3) On the date for inquiry, the court shall explain to the subject that he/she is not forced to make statements, shall inform the subject of a summary of the reasons for his/her falling under Article 2, paragraph (2) and of the fact that an application has been made under Article 33, paragraph (1), and shall hear the opinions of the subject and his/her attendant(s); provided, however, that this shall not apply if the subject falls under the proviso to paragraph (8) of Article 31.

Article 42

(1) If an application has been made under Article 33, paragraph (1), the court shall, according to the categories listed in the items below, make the decision specified in the relevant item based on the expert opinion as referred to in Article 37, paragraph (1) and considering the opinion as referred to in paragraph (3) of the said article and the subject’s living conditions.

(i) In cases where the court deems it necessary to hospitalize the subject to place him/her under medical care pursuant to this act in order to improve his/her mental disorder he/she had at the time when he/she caused the case at issue and in order to facilitate, through such improvement, the subject’s reintegration into society without causing any similar case: A decision to hospitalize the subject to place him/her under medical care.

(ii) Except for the cases specified in the preceding item, in cases where the court deems it necessary to place the subject under medical care pursuant to this act in order to improve his/her mental disorder he/she had at the time when he/she caused the case at issue and to facilitate, through such improvement, the subject’s reintegration into society without causing any similar case: A decision to place the subject under non-inpatient medical care.

Article 50 A person who is hospitalized due to a decision made under Article 42, paragraph (1), item (i) or Article 61, paragraph (1), item (i) or his/her custodian or attendant(s) may make an application to the relevant District Court for permission of discharge or for termination of the medical care provided under this act.

Article 55 A person who received a decision made under Article 42, paragraph (1), item (ii) or Article 51, paragraph (1), item (2) or his/her custodian or attendant(s) may make an application to the relevant District Court for termination of the medical care provided under this act.

Article 64

(2) The subject or his/her custodian or attendant(s) may file an appeal to a decision made under Article 42, paragraph (1), Article 51, paragraph (1) or (2), Article 56, paragraph (1) or (2) or Article 61, paragraph (1) or (3) within two weeks only on the grounds of a legal violation, serious factual errors or materially inappropriate disposal that affect the decision; provided, however, that no attendant may file an appeal against the expressed intention of the custodian who appointed such attendant.

The appeal is dismissed.

1. Of the reasons for this appeal, the allegation that the Act on Medical Care and Treatment for Persons Who Have Caused Serious Cases Under the Condition of Insanity (hereinafter referred to as the “Medical Care and Treatment Act”) violates Article 14, Article 22, paragraph (1) and Article 31 of the Constitution of Japan



With respect to the treatment system under the Medical Care and Treatment Act, the appellant alleges that the legislative purpose of the act is not reasonable, that the treatment and the requirements therefor specified by the act lack rationality, and that the act also lacks a guarantee of due process.

The purpose of the Medical Care and Treatment Act is to strive to improve the medical condition of persons who have caused serious cases under the condition of insanity and to prevent the occurrence of similar cases associated with such condition, by providing such persons with continuous and appropriate medical care and with monitoring and guidance necessary to ensure such medical care, through establishing a procedure, etc. for determining appropriate treatment for such persons, thereby facilitating their reintegration into society (Article 1, paragraph (1)). This purpose should be considered legitimate. The Medical Care and Treatment Act then provides, with respect to the subject, that “[i]n cases where the court deems it necessary to hospitalize the subject to place him/her under medical care pursuant to this act in order to improve his/her mental disorder he/she had at the time when he/she caused the case at issue and in order to facilitate, through such improvement, the subject’s reintegration into society without causing any similar case,” the court must make a decision to hospitalize the subject or to place him/her under non-inpatient medical care (Article 42, paragraph (1), items (i) and (ii)). This treatment is necessary and reasonable to achieve the aforementioned purpose, and the requirements for such treatment are also considered reasonable and appropriate and in line with such purpose.

Let us turn our eyes to the inquiry proceedings under the Medical Care and Treatment Act. Unlike the criminal proceedings, the act employs proceedings which allow the court to find out facts ex officio (Article 24), and keeps the inquiry on the date for inquiry closed to the public (Article 31, paragraph (3)). The Medical Care and Treatment Act requires, in principle, that a treatment case be handled by a panel consisting of one judge and one mental health evaluator (Article 11, paragraph (1)). The act provides the attendant system in which an attorney(s)-at-law may serve as an attendant(s) (Article 30) who is/are granted, among other things, the right to express his/her/their opinion and to submit materials (Article 25, paragraph (2)), the right to attend on the date for inquiry (Article 31, paragraph (6)), and the right to inspect records or articles of evidence (Article 32, paragraph (2)), and in which an attendant(s) must be assigned to the subject in the inquiry of a treatment case for which an application was made by the public prosecutor (Article 35). Under the act, it is mandatory in principle for the court to set a date for inquiry (Article 39, paragraph (1)), on which date the court must hear the opinions of the subject and his/her attendant(s) after explaining to the subject that that he/she is not forced to make statements (Article 39, paragraph (3)). Furthermore, the act grants the subject and his/her attendant(s), etc. the right of appeal (Article 64, paragraph (2)) and the right to make an application for permission of discharge or for termination of medical care (Articles 50 and 55). Thus, the act provides appropriate and reasonable proceedings in order to promptly provide the subject with necessary medical care and to ensure his/her smooth reintegration into society by protecting his/her privacy.

In the meantime, while the guarantee of due process provided by Article 31 of the Constitution of Japan directly relates to the criminal proceedings, it is not appropriate to consider that all other proceedings are automatically outside the scope of the guarantee provided by the said article solely because they are not criminal proceedings; whether or not the guarantee extends to certain proceedings should be considered on a case-by-case basis according to the nature and other aspects of the proceedings, by taking into account their differences from the criminal proceedings. Under these circumstances, the Court considers that the Medical Care and Treatment Act provides an adequate guarantee of process according to the nature and other aspects of the proceedings, as described above.

In light of the legitimacy of the purpose of the Medical Care and Treatment Act, the necessity, reasonableness and appropriateness of the treatment and the requirements therefor specified by the act, and the nature and other aspects of the guarantee of process, it is appropriate to understand that the treatment system under the Medical Care and Treatment Act does not violate Article 14 or Article 22, paragraph (1) of the Constitution of Japan or the legal intent of Article 31 of the Constitution. This is obviously the appropriate understanding in light of the intention of the Court’s precedents (Supreme Court, 1962 (O) 1472, Judgment of the Grand bench of May 27, 1964, Minshu Vol. 18, No. 4, p. 676 and Supreme Court, 1986 (Gyo-Tsu) 11, Judgment of the Grand bench of July 1, 1992, Minshu Vol. 46, No. 5, p. 437). The relevant reasons for appeal are groundless.

2. The rest of the reasons for appeal

The rest of the reasons for appeal, including the allegations of violations of the Constitution of Japan, are substantially allegations of mere legal violations, and do not constitute any of the grounds for appeal specified in Article 70, paragraph (1) of the Medical Care and Treatment Act.

3. Accordingly, the Court unanimously decides as set forth in the main text in accordance with Article 71, paragraph (1) of the Medical Care and Treatment Act.

Justice YAMASAKI Toshimitsu

Justice OKABE Kiyoko

Justice KIUCHI Michiyoshi

Justice TOKURA Saburo

Justice HAYASHI Keiichi