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2017 (I-He) 20

2017.12.25
2017 (I-He) 20
Keishu Vol. 71, No. 10
Decision concerning whether a decision in prior instance may be revoked for the reasons other than those provided in Article 70, paragraph (1) of the Act on Medical Care and Treatment for Persons Who Have Caused Serious Cases Under the Condition of Insanity in the case of a re-appeal from an appeal against a ruling under the said act
Case of a re-appeal from an appeal against each ruling to dismiss an appeal against each ruling to dismiss a petition for termination of medical treatment and that for permission of discharge from hospital pursuant to the Act on Medical Care and Treatment for Persons Who Have Caused Serious Cases Under the Condition of Insanity
Decision of the First Petty Bench, revoked and remanded by the Supreme Court
Fukuoka High Court, Decision of October 4, 2017
1. In the case of a re-appeal from an appeal against a ruling under the Act on Medical Care and Treatment for Persons Who Have Caused Serious Cases Under the Condition of Insanity, the Supreme Court may revoke ex officio a decision in prior instance when it is recognized that there are reasons for an appeal against a ruling provided in Article 64 of the said act in the decision in prior instance and that not revoking it would be significantly contrary to justice, even if it is not recognized that there are reasons provided in Article 70, paragraph (1) of the said act.

2. When deciding a petition for termination of medical treatment pursuant to the Act on Medical Care and Treatment for Persons Who Have Caused Serious Cases Under the Condition of Insanity filed by a subject person who was ordered for hospitalization pursuant to the said act and a petition for permission of discharge from hospital filed by an administrator of a designated medical institution for hospitalization, the court of first instance immediately rejected an opinion of the aforementioned administrator that the subject person would not be recoverable without performing an appropriate examination as necessary and sufficiently explaining the reason why the determination at the time of the order for hospitalization should be given priority over the aforementioned opinion (refer to the decision). Under such circumstances, each of the decisions in first instance that dismissed each of the petitions and each of the decisions in prior instance that held each of the decisions in first instance is illegal due to insufficient examination in that it erred in the interpretation and application of Article 51, paragraph (1) of the said act and rejected the aforementioned opinion without thoroughly examining its reasonableness and appropriateness.
(as to 1 and 2) Article 64, paragraphs (1) and (2), Article 70, paragraph (1), and Article 71, paragraph (2) of the Act on Medical Care and Treatment for Persons Who Have Caused Serious Cases Under the Condition of Insanity

(as to 2) Article 49, paragraph (1), Article 50, Article 51, paragraph (1), and Article 52 of the Act on Medical Care and Treatment for Persons Who Have Caused Serious Cases Under the Condition of Insanity



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

Article 49

(1) An administrator of a designated medical institution for hospitalization shall immediately file a petition for permission of discharge from hospital to a district court with an opinion of a director of a probation office, when, in light of the items provided in Article 37, paragraph (2), it is not recognized anymore that a person who is hospitalized by an order under Article 42, paragraph (1), item (i) or Article 61, paragraph (1), item (i) needs to continue to be hospitalized and to receive medical treatment pursuant to this act in order to improve from the effects of the mental disorder from which he/she suffered at the time of his/her conducting a subject act, not to conduct an act similar to the subject act by virtue of such improvement, and to promote his/her rehabilitation into society, as a result of a medical examination by a designated mental health doctor who belongs to the said designated medical institution for hospitalization (excluding those whose duty is suspended pursuant to the provision of Article 19-2, paragraph (2) of the Act on Mental Health and Welfare for the Mentally Disabled (Act No. 123 of 1950); the same applies hereinafter except for Article 117, paragraph (2)).

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 51

(1) When a petition under Article 49, paragraph (1) or (2) or the preceding article was filed, the court shall make an order prescribed in each of the following items according to the classification set forth in each of the said items, based on an opinion of an administrator of a designated medical institution for hospitalization (when an expert examination was ordered pursuant to the provision of the following article, an opinion of the administrator of the designated medical institution for hospitalization and the result of the said expert examination) while considering the living environment of a subject person (when an expert examination was ordered pursuant to the provision of the following article, the living environment of the subject person and an opinion provided in Article 37, paragraph (3) that shall apply mutatis mutandis in the second sentence of the said article).

(i) Case in which it is recognized that a subject person needs to continue to be hospitalized and to receive medical treatment pursuant to this act in order to improve from the effects of mental disorder from which he/she suffered at the time of his/her conducting a subject act, not to conduct an act similar to the subject act by virtue of such improvement, and to promote his/her rehabilitation into society:

Order to dismiss a petition for permission of discharge from hospital or a petition for termination of medical treatment pursuant to this act, or to confirm that hospitalization shall be continued

(ii) Case in which it is recognized that a subject person needs to receive medical treatment pursuant to this act in order to improve from the effects of mental disorder from which he/she suffered at the time of his/her conducting a subject act, not to conduct an act similar to the subject act by virtue of such improvement, and to promote his/her rehabilitation into society, except for the case provided in the preceding item:

Order to permit the subject person discharge from hospital and have him/her receive medical treatment without hospitalization

(iii) Case which does not fall under either of the preceding items:

Order to terminate medical treatment pursuant to this act.

Article 52 When the court recognizes it necessary for making a decision provided in this section, it may order a mental health judging doctor or a medical doctor who is recognized as having expertise and experience equivalent to or more than a mental health judging doctor to conduct an expert examination with regard to whether a subject person has a mental disorder and whether it is necessary for him/her to receive medical treatment pursuant to this act in order to improve from the effects of the mental disorder from which he/she suffered at the time of his/her conducting a subject act, not to conduct an act similar to the subject act by virtue of such improvement, and to promote his/her rehabilitation into society. The provisions from Article 37, paragraph (2) to paragraph (4) shall apply mutatis mutandis to such case.

Article 64

(1) An appeal against a ruling may be lodged within two weeks, respectively, by a public prosecutor against an order made under Article 40, paragraph (1) or Article 42, by an administrator of a designated medical institution for hospitalization against an order made under Article 51, paragraph (1) or (2), and by a director of a probation office against an order made under Article 56, paragraph (1) or (2) or from Article 61, paragraph (1) to paragraph (3), only for the reasons of a violation of laws and regulations that affects the order, a serious error of facts, or significant unjustness when making an order.

(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.

Article 70

(1) An appeal against a ruling may be specially lodged with the Supreme Court within two weeks against an order made by a court in charge of an appeal under Article 68 by a public prosecutor, an administrator of a designated medical institution for hospitalization or a director of a probation office, or a subject person, his/her custodian or attendant only for the reasons of a violation of the Constitution, a misconstruction of the Constitution, or a determination that is inconsistent with precedents of the Supreme Court or the high courts as the courts of appellate instance; provided, however, that the attendant shall not lodge an appeal against a ruling contrary to an intention expressed by the custodian who selected him/her.

Article 71

(2) When there is a reason for an appeal against a ruling made under paragraph (1) of the preceding article, the court shall revoke the order in first instance in the form of an order. In such case, the court may revoke an order made by a district court and remand a case to the district court or transfer it to another district court.
Each of the decisions in prior instance and each of the decisions in first instance shall be revoked.

Each case shall be remanded to the Kumamoto District Court.
The purpose of the appeal against a ruling made by the subject person is merely to argue a violation of laws and regulations and an error of facts. The purpose of the appeal against a ruling made by the administrator of the designated medical institution for hospitalization including his argument of a violation of the Constitution is merely to argue a violation of laws and regulations and an error of facts. Therefore, neither of the appeals against the rulings falls under the reasons provided in Article 70, paragraph (1) of the Act on Medical Care and Treatment for Persons Who Have Caused Serious Cases Under the Condition of Insanity (hereinafter referred to as the “Act on Medical Care and Treatment”).

However, taking the appellants’ arguments into consideration, each of the decisions in prior instance and each of the decisions in first instance should be inevitably revoked for the following reasons based on an examination by the court's own authority.

1. Facts

According to each of the decisions in first instance accepted by each of the decisions in prior instance and the records, the outline of facts of this case is as follows:

(1) A public prosecutor did not institute prosecution against the subject person, finding that she had been in a state of insanity when she had burned her house where she had lived together with her husband. The public prosecutor filed a petition under Article 33, paragraph (1) of the Act on Medical Care and Treatment with regard to the subject person, stating the aforementioned act as a subject act. In an expert examination in accordance with Article 37 of the said act, main psychiatric diagnosis is that the subject person suffered from residual and delayed psychotic disorder and personal or behavioral disorder due to abuse of alcohol and was in a state in which the degradation of personal standards and intellectual functions, which was of cerebral organic origin, was added to the emotionally unstable personality disorder that she originally had. The result of an intelligence test showed that she suffered from moderate intellectual disability. Furthermore, the said expert examination indicated that ambulant treatment was appropriate, mentioning that, although medication treatment was partially effective for emotional liability and irritability, such treatment was not enough to cure short-sighted views and impulsivity and that it was necessary to try psychosocial treatment for the subject person as well as to continue administration of medicine. On January 6, 2017, the Fukuoka District Court approved that the subject person suffered from the mental disorder indicated by the said expert examination and mentioned that she could recover by having psychosocial treatment as well as continuing to take medicine. It stated that she needed to receive careful medical treatment and made a decision to provide her with medical treatment by hospitalization because the security of ambulant treatment was difficult.

(2) On June 20 of the same year, a petition for termination of medical treatment pursuant to the Act on Medical Care and Treatment was filed with the court of first instance by the subject person. On the 21st day of the same month, a petition for permission of discharge from hospital was filed by the administrator of the designated medical institution for hospitalization. The reason for the petition for permission of discharge from hospital was that, although medication treatment was partially effective for the subject person, medical treatment pursuant to the Act on Medical Care and Treatment was not recognized as necessary for her in that she would not be recoverable by medical treatment because it was difficult to instruct and educate her and there was no more possibility to improve her state by psychosocial treatment due to her symptoms, such as strong atrophy recognized mainly in her frontal lobe and temporal lobe, moderate intellectual disability, memory disorders, and the degradation of cognitive function (this opinion of the administrator of the designated medical institution for hospitalization shall hereinafter be referred to as the “Opinion”). Furthermore, the opinion of the director of the probation office was that the termination of medical treatment was appropriate because it was possible to secure appropriate and continuous medical treatment and livelihood support according to the subject person’s condition even if the treatment pursuant to the Act on Medical Care and Treatment was terminated.

(3) The court of first instance dismissed each of the petitions (each of the decisions in first instance). However, it neither had a trial nor newly conducted an expert examination in accordance with Article 52 of the Act on Medical Care and Treatment. According to the records, no signs can be found that the court of first instance heard opinions from related persons, such as the administrator of the medical institution for hospitalization, as an examination of facts, or that it gathered related persons to have discussions (hereinafter referred to as the “Conference”). The reasons for each of the decisions in first instance were as follows: that the order for hospitalization was made under the determination that there was a possibility to improve the subject person from the effects of mental disorder by providing her with hospital treatment pursuant to the Act on Medical Care and Treatment, although it had been assumed from the beginning that it would be difficult to cure her by psychosocial treatment; that the court of first instance hesitated to determine that the subject person would be no more recoverable considering just about half-a-year hospital treatment, because the type and degree of mental disorder from which she had suffered did not change since the time of the order for hospitalization and her symptoms had been continuing as basically assumed at the time of the order for hospitalization; and that, therefore, it was necessary to continue hospital treatment in order to take time to assess the subject person’s recoverability by such treatment unless there is any specific change in circumstances.

(4) The subject person and the administrator of the designated medical institution for hospitalization respectively lodged an appeal against a ruling. However, the court of prior instance dismissed each of the appeals from the rulings, stating the determination to the same effect as that of the court of first instance (each of the decisions in prior instance). The subject person and the administrator of the designated medical institution for hospitalization respectively lodged a re-appeal from the appeal against the ruling.

2. Determination of this Court

(1) It shall be construed that, in the case of a re-appeal from an appeal against a ruling under the Act on Medical Care and Treatment, the Supreme Court may revoke ex officio a decision in prior instance ex when it is recognized that there are reasons for an appeal against a ruling provided in Article 64 of the said act in the decision in prior instance and that not revoking it would be significantly contrary to justice, even if it is not recognized that there are reasons provided in Article 70, paragraph (1) of the said act.

(2) It is construed that the court of first instance determined that it could not be said that the treatment that had been assumed at the time of the order for hospitalization was not fully performed. This was because, although the order for hospitalization had determined that the subject person would be recoverable, the Opinion found that she would be no more recoverable considering about half-a-year hospital treatment while the type or degree of her mental disorder and her symptom did not significantly change. Nevertheless, even in such case, the court of first instance should have examined reasonableness and appropriateness of the Opinion that stated the current state of the subject person and her recoverability, in light of the purpose of Article 51, paragraph (1) of the Act on Medical Care and Treatment that provides that the court shall make a decision on a petition for permission for discharge from hospital etc. based on an opinion of an administrator of a designated medical institution for hospitalization etc. When performing such examination, the court of first instance should have sufficiently exchanged opinions with related persons, such as hearing the purpose and grounds of the Opinion from the administrator of the designated medical institution for hospitalization etc. through the Conference etc. according to necessity, and should have performed an appropriate examination when necessary, such as ordering another expert examination and having a trial. However, the court of first instance did not perform such examination and immediately rejected the Opinion without sufficiently explaining the reason why the determination at the time of the order for hospitalization should be given priority over it.

In light of these facts, it should be said that each of the decisions in first instance is illegal due to insufficient examination in that it erred in the interpretation and application of Article 51, paragraph (1) of the Act on Medical Care and Treatment and rejected the Opinion without thoroughly examining its reasonableness and appropriateness. It should be also said that each of the decisions in prior instance that held each of the decisions in first instance is illegal in the same way. It is recognized that such illegality affects each of the decisions in prior instance and not revoking them would be significantly contrary to justice.

Accordingly, pursuant to Article 71, paragraph (2) of the Act on Medical Care and Treatment, this Court revokes each of the decisions in prior instance and each of the decisions in first instance and remands each of the cases to the Kumamoto District Court, the court of first instance, in order to have it determine an issue of whether medical treatment pursuant to the act may be terminated etc. after thoroughly examining the current state of the subject person or her recoverability etc. The Court unanimously decides as set forth in the main text.
Justice KIZAWA Katsuyuki

Justice IKEGAMI Masayuki

Justice OTANI Naoto

Justice KOIKE Hiroshi

Justice YAMAGUCHI Atsushi
The Other Case Number(s): 2017(I-He)22
(This translation is provisional and subject to revision.)