Regional Perspectives in Bioethics: Japan, pp. 321-337 in Peppin, J. ed., Annals of Bioethics: Foundational Volume on Regional Perspectives (Swets & Zeitlinger, 2003).
Author: Darryl R. J. Macer
Institute of Biological
Sciences, University of Tsukuba,
Tsukuba Science City
Director, Eubios Ethics
Japan emerged as one of the global economic superpowers in the twentieth century. It is a country of 125 million persons speaking a distinctive language, Japanese, with a history of at least three millennia. It has an illusive property for Europeans, being an island at the Far East of Asia, and having had an isolationalist policy during a time when Europe was colonizing much of the world in the past four centuries. Since the Meiji restoration in the nineteenth century, the doors of Japan have been opened to all countries, and their ideas have been undergoing rapid change with globalization, which is itself driven by the communications devices which Japanese industry has exported around the world.
Japan has developed some of its own medical ethics, merging Buddhist and Confucian rules into a Shinto background, with a recent importation of Western values (Macer, 1999). Japanese ethics could be said to now be rather pragmatic and centred on the authorities. There is universal health insurance, which supports the concept of social justice and access for all to health, supported by taxes. While the principle of justice is accepted socially, the increasing proportion of aged persons means sick people are expected to pay a slightly higher proportion of the medical costs themselves to lessen the tax burden. While the sick expect to be covered by this insurance, most do not want to be a burden on the state or family. Informed consent is becoming accepted, and bioethics is part of a transition which is transforming Japanese society from a paternalistic society to an individualistic one.
Japanese medical ethics is a mixture of Buddhist and Confucian influences combined with Shinto influence, and more recently Hippocratic and Christian influences. From the fifth and sixth centuries A.D., the medical profession has been restricted to the privileged classes. With the centralization of government in the seventh and eighth centuries, there was a bureau of medicine established, with the Yoro penal and civil codes creating an official physician class. Because of shortages of doctors, there was room for some more doctors. After the Heian period (800-1200), the government-sponsored health service was replaced by professional physicians. In the sixteenth century, a code of practice was drawn up that is very similar to the Hippocratic code, called the "Seventeen Rules of Enjuin". This code, developed by practitioners of the Ri-shu school, also emphasized a priestly role for a physician. The physicians "should always be kind to people. You should always be devoted to loving people." There is a very strong paternalistic attitude by doctors even today. The code also has a directive to keep the Art secret and to be concerned about quacks, like the Hippocratic ethic. No abortives are allowed, nor poisons. A number of virtuous rules are included, including: "You should rescue even such patients as you dislike or hate" and "You should be delighted if, after treating a patient without success, the patient receives medicine from another physician, and is cured."
Modern Western medicine took hold in Asia in the nineteenth century. The rapid progress of medical technology has led to challenges in the way that medicine is practiced. The existing systems and patterns which are seen in the relationships between patients, families, health professionals, and the society in general may be changed. At the same time, as the technology is transferred, some values are also imported beyond the general acceptance that new technology must be better than old.
The black episode in Japanese medical ethics is the war-time experiments conducted on prisoners in Manchuria China, while China was under Japanese occupation in World War II. At least 3,000 persons, mainly Chinese, were murdered by or after vivisection and other experiments in facilities under Unit 731 at several locations in China. The functions included vivisection practice for nearly qualified army surgeons, intentional infection of diseases, trials of non-standardized treatments, and discovering the tolerances of the human body (Tsuchiya, 2000). Unlike Nazi war crimes, the Japanese war criminals were only prosecuted in the Soviet Union, but the United States gave the head persons immunity from prosecution in exchange for all the records, so that the knowledge gained for biological warfare experiments could be kept secret (Harris, 1994). The United States actually tested some of the weapons in North Korea in 1952. Neither Japanese nor Chinese bioethics has analysed these experiments and the ethical issues they raise (Morioka, 2000; Tsuchiya, 2000; Macer, 2001; Nie, 2001), in contrast to the German preoccupation with their war crimes. Because of the opportunity to have access to the best medical research facilties in Asia, many physicians went to the Unit, and after the war it was only in the mid 1990s that some members of the Unit started to confess and apologise for their actions, as they reached old age. However, the discussion of the issues in bioethics has only just begun.
Currently Japanese medical ethics is changing, and a similar diversity of views to Western ethics has been recognized. The hesitant introduction of bioethics is more related to the structure of Japanese society than to any difference in individual person's attitudes between Japan and Western countries. This can be shown from the results of opinion surveys: for example, when individuals were asked to give their reasoning for their opinions over bioethical issues such as genetic manipulation or screening, there was at least as much variety in opinions expressed by members of the general public in Japan as there are in other countries (Macer, 1994a).
Since the 1970s, people have become more conscious of their rights to informed consent, which could be attributed to the importation of civil rights debates that occurred in the U.S. and Japan in the 1960s (Kimura, 1995). The concept of human rights was recognized in the constitutions of the Meiji era and the post-Second World War. In the nineteenth century, some philosophers, such as Nakae Chomin, introduced concepts of human rights (Hamano, 1997). He reintepreted Confucianism by injecting concepts of popular sovereignty and democratic equality, and provided an internal tradition of human rights. Macer (1999) would place the origin of informed choice with the older samurai tradition, which includes the control of when one will die, and the choice of suicide. In addition, the concept of informed consent is seen in the writings of Hanaoka Seishu on breast cancer from the Nineteenth century.
With the introduction of Western medicine, there has also been an influx of Western religion, philosophy, and etiquette. As cultures evolve, it becomes impossible to separate which aspects were introduced from which sources at which time. Within a few decades, a culture may see something as unique to its own tradition, even though it was imported. Even the concept of having a written text can be a cultural import in some Asian countries. Although ancient Japanese and Chinese books date back more than 1300 years, and legal systems were established at earlier times, the Westernization of Asia led to European-style laws being introduced. This affects the types of law and guidelines which govern medical practice.
The term "bioethics" has had the effect of stimulating cultures around the world to think about the relationships between patient and practitioner, as well as between the public and the government (Macer, 1994b). One reaction which has been seen in Japan in the 1990s from the introduction of Western medical ethics, particularly from the U.S., in the 1980s has been a backlash to claim that Japanese are different from Westerners. This can be used to defend existing practices and also as an anchor to the rapid social change. We have seen the development of the Asian Bioethics Association as one attempt to break with the domination of U.S. bioethics. At the 1997 UNESCO Asian Bioethics Conference (Fujiki and Macer, 1998), there was discussion by a number of Asian researchers on the need for recognizing traditional Asian bioethics, rather than importing bioethics from the U.S. There has been discussion on whether the idea of fundamental human rights is compatible with the Asian ethos (Sakamoto, 1999).
A. Bioethics in General
1. Important Institutions
Currently, professional responsibility is outlined by law and guidelines. In Japan, there are several basic laws, including the Doctor's Act. The Japanese Medical Association approved the concept of informed consent in 1991, which superseded the Physician's Code of Ethics of 1951 which was more paternalistic (Kimura, 1995). There are professional guidelines issued for members of academic societies to follow, but they can still practice medicine outside of the professional society. Consensus is often more important than passing a law (Bai, et al., 1987; Shinagawa, 2000).
Physicians are required to obtain consent to medical treatment according to the Medical Practitioner's Act, Article 23. The obligation for treatment is based on assessing what can reasonably be expected in view of the knowledge and experience which ought to characterize the average physician. The obligation for consent means that the patient's will is to be respected when medical opinions are divided as to the necessity of the treatment.
The Council of Medical Ethics, established under the provisions of Article 25 of the Medical Act, is an advisory body supervised by the minister of public welfare and consists of the presidents of the Japan Medical Association, the Japanese Dental Association, and scholars and staffs from related administrative departments. It functions to take administrative measures to eliminate physicians and dentists who commit malpractice or act unethically. The Penal Code Article 211 states that if a physician injures the patient and the injuries cause death by mistreatment, they are liable for up to five years and/or up to 500,000 yen fine. According to the Physicians Law Article 7-2, if the doctor was sentenced to imprisonment or a fine, the Ministry of Health and Welfare can remove the license or stop the doctor's practice for a certain amount of time. This action follows the decision of the Medical Practice Council according to Article 7-4. However, in practice, many Japanese are still reluctant to seek damages for malpractice (Feldman, 1985; Bai, 1983).
2. Important personalities
The Japan Association of Bioethics was established in 1990 and has had an annual meeting each year since then. There have been three Presidents of this Association to date: Hyakudai Sakamoto (philosopher), Kazumasa Hoshino (physician), and Kinki Nakatani (lawyer). The Association has over one thousand members; however, few persons in bioethics devote their full-time attention to the subject. Early pioneers of bioethics in Japan also include Koichi Bai at Kitasato Medical Unversity, Norio Fujiki at Fukui Medical School, Rihito Kimura at Waseda University, and Shinryo Shinagawa at Hirosaki University, who have been introducing bioethics by public seminars and in newsletters and journals since the late 1980s.
Several University faculty positions have been established in bioethics, including Darryl Macer at University of Tsukuba (1990), Masahiro Morioka at Osaka Prefectural University (1997), Atsushi Asai (1998) and Akira Akabayashi (2000) at the University of Kyoto. Several centres of bioethics have existed for more than a decade, including the Eubios Ethics Institute. The Mitsubishi Kasei Institute of Life Sciences, developed into a private Bioethics Institute in 2001. University degrees can be awarded in bioethics as part of other programs, but there is not a dedicated program in bioethics in Japan. A series of international conferences have also been held by the Eubios Ethics Institute (see entry in Volume III).
3. Dominant Bioethical Theory
Regarding the principles of bioethics in Japan, harmony has been discussed as a potential over-riding principle, but it is unclear if there really is any one principle that dominates (Macer, 1994a; 1998). Some commentators believe that autonomy is not seen in Japan, however, autonomy is applied to many life choices that are bioethical dilemmas. While privacy is regarded as a high virtue in some countries in law, like Japan, there are common exceptions in practice. For example, while the Tokyo government issued guidance that employer tests for HIV can only be conducted with informed consent of the persons, the Tokyo police department was found guilty in the court of secretly testing potential recruits for HIV.
The involvement of the family means that some modern Western ideas on confidentiality are not yet accepted in Asian medical practice. The family may be told medical news earlier than the patient. In Japan, many sick persons who know they have a terminal illness play a "game of avoiding to hurt another", pretending they do not know the seriousness of the disease with family members who pretend the patient is not terminally ill. Modern Asia, however, is individualistic, and patient rights are being promoted by many persons. So Japanese medical ethics is in a transitional phase which cannot be separated from broader socio-economic changes. The late twentieth century has seen rapid change in the concepts of how a person is integrated into the family and the boundaries of the family with whom one dwells (Maekawa and Macer, 1998).
The evolution of the concept of patient autonomy is seen in a trend that is reflected in all Asian cultures from paternalistic compassion and love towards informed decision making. The situation is more difficult than simply claiming that in the past patients did not have autonomy and that physicians always acted paternalistically. The sick may prefer to leave the decisions up to others or use subtle linguistic expressions to convey their will. However, there is still a hierarchical social system which makes it difficult for patient and doctor to be truly at an equal level in their relationship. Even more so, the concept of informed choice, where the patient becomes the consumer of medicine, is seen in the pharmacy stores but not in the medical consultation. Many sick persons are afraid to be a bother or burden to others, so they attempt to avoid trouble which could occur if they clearly expressed their will and it differed from others'.
There are also theories of ethics in the West based on community, which argue that individuality, autonomy, or rights of a person are not suited to the community structure of society. Communitarians argue that societies need a commitment to general welfare and common purpose, and this protects members against abuses of individualism, which could be equated with selfish pursuit of liberty.
There are separate laws outlining the activities of health professionals, including physicians, dentists, nurses, acupuncturists, masseurs, and other health care professionals. Non-registered professionals are not allowed to work. In 1990, there were 210,197 registered physicians at work in Japan, a ratio of 170 per 100,000 population. The Medical Practitioner's Law of 1971 contains guidelines on what the physicians should and should not do. There are some common exceptions to the law in practice. For example, Article 17 of the Act forbids nonregistered persons from performing an action which may present harm to another person's body if not done by a sufficiently capable medical technique. This would outlaw taking blood pressure or performing ear piecing. However, these actions are commonly performed everywhere. The curriculum for training is set by the Ministry of Education, but physicians are licensed after passing a national exam by the Ministry of Health and Welfare.
The Medical Service Law and the Health Center Law are two important laws in a series which control the operation of medical facilities. In 1991, there were 10,066 hospitals in Japan, with 1,685,589 beds. No physician introduction is required for admission to a hospital. About 81% of Japan's hospitals are privately operated. They tend to be smaller than the public sector hospitals, and many are developed from physician-owned family practices. The chief executive must be a physician. Of the 1048 mental hospitals in 1988, 90% were private (Koizumi & Harris, 1992).
In 1991, there were 82,118 general clinics in Japan. Clinics are the usual name for physician offices and about 94% are privately operated. A clinic cannot keep a patient for more than 48 hours and is legally defined as having less than 20 beds, whereas a hospital has 20 or more beds. About 60% of clinics have no patient accommodation, but they are usually well equipped. Physicians in clinics do not have access to hospital facilities and must refer patients to hospitals if they cannot provide the services on site. The clinics compete with hospitals for the patients, who can choose what they prefer. Under the Occupational Safety and Health Law 1972, an occupational health physician was a designated physician for any workplace with more than fifty workers.
The number of physicians who had disciplinary action taken upon them between 1971 and 1988 included fourteen who lost their license for various reasons, including two against the physician's act, three for patient abuse, two for pharmaceutical law abuses, and three for other reasons. 196 other physicians lost their license for some amount of time for legal reasons. Licenses may be taken for actions against the medical laws and pharmaceutical and drug laws, as decided by the Medical Practice Council.
In 1990, there were 745,301 registered nurses and assistant nurses at work in Japan, a ratio of 602.9 per 100,000 population. There were 25,303 registered public health nurses, a ratio of 20.5 per 100,000 population. There were 22,918 registered midwives, a ratio of 18.5 per 100,000 population. The Medical Act of 1948 included guidelines on the activities of medical professionals including nurses. The specific guidelines are outlined in a special law: Law No. 86 of 26 June 1992 aimed at promoting and assuring the professional competence of nursing staff. In 1990, there were approximately 8,700 psychiatrists, 53,000 nurses, 14,000 nurses aides, 2,000 clinical psychologists, 469 occupational therapists, and 3,000-4,000 psychiatric social workers working with psychiatric patients. The number of psychiatrists per 100,000 population is 7.08. Attempts by the Ministry of Health and Welfare to introduce a licensing system for clinical psychologists and psychiatric social workers have been unsuccessful. Since the 1920s, the primary treatment for mentally ill patients in Japan has been long-term institutionalization. The Law of Mental Health of 1950 abolished private confinement of mentally ill persons. In 1989, the average length of stay in a Japanese mental hospital was 496 days, 41 times the average length of stay of patients in the U.S. The Mental Health Law of 1988 encouraged community integration, but progress has been slow. The major goal of law in mental health has been to avoid human rights abuses, by a series of periodic reports, requests for discharge, and notification of patients of their legal rights to have their case heard by a patient review board.
There are very few social workers in Japan, with an average of 0.2 per 100 beds in general hospitals and 0.5 per 100 beds in mental hospitals in 1991. However, there are efforts to increase this.
Insurance programs do not recognize counseling and psychotherapy as methods of medical treatment which need to be reimbursed. This means that counselors are encouraged to see as many people as possible a day and have many short visits, which is a general problem of dental and medical care in Japan. In 1998, the government altered the law to allow physicians some compensation for obtaining informed consent (Akabayashi, et al., 2000). The obligation for consent means that the patient's will is to be respected when medical opinions are divided as to the necessity of the treatment (Tokyo District Court, 1971, 5.19). The patient must be competent, and generally a person older than 15 years is considered competent in most cases. For the consent of infants and the mentally ill, the consent of the person exercising parental authority is required. A Tokyo District court in 1992 upheld a case brought against Tokyo University Medical School involving informed consent. The operation was a medical success, but the patient was not informed of the chances of failure and brought a case against the hospital. However, in other cases since then, courts did not uphold informed consent (Swinbanks, 1989; Tanida, 1991). In practice the concept of fully informed consent is still being introduced into Japanese medical practice.
Privacy of communication is guaranteed in the constitution. Article 21 of the constitution guarantees freedom of assembly and association as well as speech, press, and all other forms of expression. There is the Law on the Protection of Computer Information on Individuals, which provides for the handling of information on individuals processed and stored in computers by government agencies. The Law states that government agencies are prohibited from using the information on individuals for purposes other than the original purpose for which the files were compiled. Any person may require a government agency to disclose the information on themselves which is stored in the computer and, if necessary, demand its alteration. This could be interpreted to mean the truth of any health check information entered into a computer must be revealed following a person's request.
If someone informs others of the medical data of a person (for example, the result of genetic screening test to an employer), section 134-1 of the penal code could apply. If the person who leaked the information is a national employee, they could be punished by the Law on Government Employees. The Occupational Health and Safety Law obligates the health care staff to keep secrets. Under Article 14 and 15 of the AIDS law, the person who leaks this secret will be punished beyond the penal code. Article 15 sets penalties of up to six months imprisonment or up to a 200,000 yen fine.
About two thirds of couples in Japan use contraceptives. However, despite the emphasis of the Eugenic Protection Law on control of the population, the Ministry of Health and Welfare only approved use of low dose birth control pills in September 1999. They are introduced at an estimated annual cost of over 50,000 yen for a women to use them, which is very expensive. It has been claimed that they may encourage promiscuity, and more recently that it may lead to more AIDS if it changes people from the habit of using condoms. It may also have been related to government concern about a falling birth rate among Japanese. There adoption has been retarded by the image among women that they are not safe, and some consider that they interfere with natural hormonal cycles.
In Japan, the 1948 Eugenic Protection Act was designed as a method of permitting sterilization, including that of mentally incompetent patients, to be performed. Sterilization is not generally performed for reasons of birth control. In 1948, Japan was one of the first industrialized countries to pass a liberal abortion law, because it was related to post-war population control. The Law of 1948 governed the use of abortion services in Japan, until it was replaced by the Mother's Body Protection Law in 1996. The number of abortions conducted is declining, but it is still high among developed countries. The viability limit of fetuses as defined in the Eugenic Protection Law was amended from twenty-four completed weeks of gestation to twenty-two completed weeks in 1991. Abortion is restricted to the period in which the fetus is not viable outside of the uterus, and this period is determined by the notification from the Ministry of Health and Welfare.
In Japan, among some pressure groups, there is more acceptance of social abortion than selective abortion for handicapped fetuses because of concerns that this selection will lead to bad attitudes towards handicapped people. The law does not specifically permit selective termination of fetuses with a disease, so some doctors will interpret the law loosely and others strictly, especially in some national university hospitals which want to be more careful to follow the letter of the law. The number of multiple pregnancies has increased following the wide use of assisted reproductive technology, and there is still debate inside the medical association on whether to condone the practice or not.
Examples of voluntary guidelines from other professional societies include one on in vitro fertilization (IVF) and assisted reproductive technology by the Japan Society of Obstetrics and Gynecology (JSOG) (Shinagawa, 2000). There were about 11,000 babies born from IVF in Japan in 1999, so the technique has been widely used. IVF is restricted to married couples, and eggs are not donated. The Japanese Society of Obstetrics and Gynecology approved the procedure of oocyte drilling for treatment of infertility in 1993.
Surrogacy is not permitted, though foreign surrogacy agencies have been used by Japanese clients, and at least two agencies operate for United States surrogacy businesses in Japan. Through these agencies, babies are born by means of surrogate motherhood or "womb leasing" surrogacy, since 1993. These surrogacy arrangements involve sperm from Japanese men inseminated into American women. On 5 November 1992, the Japan Society of Fertility and Sterility publicized their statement that they do not support the clinical practice of surrogate reproduction and they have shelved the production of any guidelines on the matter. According to their statement, they recognized serious gaps between the capability of technology and the ethical, legal, and social acceptability in Japanese society.
Donor insemination is conducted largely through the Obstetrics and Gynecology Department of Keio University, Tokyo, and has no law to regulate it. There are about 500 attempts a year at Keio University and over 250 births per year. Each sperm donor is used for up to fifteen pregnancies, and only married women are accepted. Keio University is the most public about its program. Other institutes do not admit having a program. The guidelines used are those of Keio University and Japan Society of Obstetrics and Gynecology. The legal status of children born by donated sperm or eggs is still not legitimate; however, in February 2001, the Ministry of Justice announced it may change the law to recognise these children as legally the children of the birth parents rather than the current situation of genetic parents. There is however a long established tradition of recognizing adoption in Japan, for several centuries. Every year there are about 90,000 adoptions and one third are of adults, often after marriage to one parent.
Preconception sex selection has been investigated in Japan, but in a 1993 survey, 76% said that if they had only one child they would want a girl, suggesting that traditional ideas of family inheritance are not important by many people. The reason why more people wish to have a girl than a boy, which is in contrast to many other Asian countries, may be because girls are considered more cute or better care-givers for elderly parents. The Japan Society of Obstetrics and Gynecology and the Japan Medical Association committees both reached similar guidelines in September 1986. They decided sex selection by Y-chromosome containing sperm concentration should only be adopted to help prevent the conception of a conceptus with severe sex-linked genetic disorders, such as progressive muscular dystrophy or hemophilia. However, there is no law against marketing methods for sex selection.
On 30 November 2000, the Human Cloning Regulation Act was enacted. It prohibits transfer of human or animal-human embryos made by somatic nuclear transfer to an animal or human uterus. It is for three years and will be reviewed. A breach of the prohibition can be punished by a fine of ten million yen and ten years imprisonment. It does not prohibit transfer of human-human chimeric embryos or embryos made by embryo splitting (Nudeshima, 2001). Embryonic stem cell research is not covered by law, but by administrative guidelines which the Ministries enforce.
D. Death and Dying
1. Issues in euthanasia and physician assisted suicide
A medical treatment to reduce or remove pain which may also cause a premature death is considered lawful under several conditions (Nagoya High Court, 1962, 12.22):
(1) The patient suffers from an incurable disease as judged from contemporary medical knowledge and technology, and death is impending;
(2) Physical pain is unbearably extreme and without any other means of relief;
(3) There is consent or a contract based on the true will of the suffering person. In the case where the consciousness of the patient is not clear enough to express his wishes and there is no hope of recovery, the consent or earnest request of the immediate family is sufficient; and
(4) A generally practiced medical act is to be employed to this end.
The Japanese Medical Association (JMA) recommended that there be general legislation allowing doctors to withdraw life-sustaining treatment if patients wish to do so in cases of terminal illness. They want the law to recognize living wills, but they oppose legalizing euthanasia. The report by the JMA Bioethics Committee also suggested that cancer patients be informed of their disease "in principle".
A Japanese court decided that a man who helped his terminally ill female partner die in response to her requests in 1991 did so out of deep love, so he was only sentenced to one year with a two year stay of execution. In a 1993 case of physician-assisted active euthanasia in Japan, a doctor at a Tokai University injected KCl into an incompetent patient at the pleading of relatives. The University Committee judged it unethical. There are mixed opinions among physicians on the issue (Macer, et al., 1996).
Handicapped neonates are usually treated aggressively, and the physicians make the decisions. The general view is that parents are distraught and unable to decide. Even hopeless cases may be more aggressively treated with therapy than in most Western countries. This is in contrast to the traditional custom of mabiki which was to leave handicapped newborns to die. There have been no legal suits regarding the withdrawal of treatment for handicapped neonates. A survey of consultant pediatricians found 90% would intensively treat a Down's syndrome baby even if the parents refused treatment, but 90% of the public would not consider a doctor who did not treat a handicapped infant as a murder.
2. Hospice care and care of the dying
The Ministry of Health and Welfare and the JMA have published manuals to help practitioners resolve other difficult dilemmas (JMA, 1989; Akabayashi, et al., 1999). The latest manual lists four factors which should be taken into account when considering whether to disclose a cancer diagnosis: 1) the purpose of disclosure should be clear; 2) the patient and family members need to be able to accept the diagnosis; 3) the nature of the relationship between the practitioner and the family and pateint should be considered; and 4) psychological support should be provided to the patient after disclosure. However, there is general reluctance to tell the truth about terminal illness in Japan, but the trend is for a growing percentage of doctors to say that they do and for growing percentage of the public to say that they want to know. Even in 1980, 61% of people said that they would like to be told the truth, and in 1981 only 27% of doctors said that they would never tell patients the truth. In 1989 a Government Task Force concluded that the truth should be told, and that view is, in principle, official.
There are relatively few nursing homes compared to Western countries. One of the reasons for the relatively low number is that bed-ridden elderly persons over sixty-five years of age can receive free medical treatment including hospitalization, and anyone over seventy years of age is eligible for free care. Government supported Health Services Facilities for the Elderly were established by "The Amendment of the Act for the Health and Medical Service for the Elderly". The facilities must be staffed with medical doctors, nurses, nursing care staff, physiotherapists or occupational therapists, health consultants, and nutritionists. The municipalities pay the medical expenses, while the elderly bear the cost of personal items such as meals, diapers, haircuts, and daily necessities.
3. Ethics of pain management
Japanese physicians have been reluctant to administer morphine because of tough laws on related drugs. The Narcotics and Psychotropics Law was amended in 1990 to improve the accessibility of morphine preparations to cancer patients with pain. The MHW edited four volumes for palliative care with guidelines on cancer pain relief and legislative management of narcotics use in hospital, clinics, and pharmacies (Takeda, 1991). Morphine use in pain management increased seventeen-fold between 1979 and 1989 due to attitude changes in physicians for management of pain, and this further increased after the law changed in 1990 as more physicians accepted the need to alleviate pain in terminal care. Morphine has changed from an illegal drug to an accepted pain treatment, following the WHO Cancer Relief Programme in 1980. In 1989 the MHW legalised the use of 10mg tablets of slow release morphine (MS Contin) and 30mg tablets in 1990. The amount of morphine consumed is still one-fourth of the U.S. levels and one-eighth of U.K. levels, which is in contrast to the reverse relationships for most other pharmaceutical products.
Public surveys in the 1990s found that 80% do not want continued treatment if they are in vegetative state, and 75% said that they do not want treatment if in pain and close to death. The people over seventy years of age were more willing to have treatment continued. However, the euthanasia cases expose the inadequacies of Japanese terminal care, where many patients who have pain remain in pain because pain killers are not completely covered by the national health insurance. This creates the desire to die, and when combined with the inadequate medical communication and trust between patient and doctor, there will remain relatively high (about 50%) public support for informed and consenting active euthanasia of competent patients, despite its illegality.
E. Access to Health Care
1. Right to health care
The modern Japanese constitution was drafted by the occupation forces after the Second World War, was reviewed by the Japanese government, and voted into force by the Japanese Diet (Parliament) in 1948. It includes thirty-one Articles on the rights and duties of the people. Article 25 reads "All people shall have the right to maintain the minimum standards of wholesome and cultured living. In all spheres of life, the State shall use its endeavors for the promotion and extension of social welfare and security, and of public health." Article 25 assumes a welfare state but does not have much legal meaning. It does not vest in each individual person a concrete right which can be enforced by the judicial process, since such type of right comes into force only through implementing legislation. The obligation for treatment is based on assessing what can reasonably be expected in view of the knowledge and experience which ought to characterize the average physician (Supreme Court, 1949, 3.1).
2. The national health care system
The basic philosophy of the Japanese health care system is universally mandated, government provided health insurance coverage. There is little choice over which insurance scheme a person must join: either employees must join the one statutory plan offered by their employers, or the self-employed persons plan administered by local governments or trade associations. The government health insurance plans cover every Japanese person, and two thirds have employee-based systems and one third self-employed/pensioner schemes. The proportion of the population covered by each scheme in 1991 and the schemes include: (1) Government Managed Health Insurance (28.9%); (2) Society Managed Health Insurance (25.5%); (3) Day Laborer's Health Insurance (0.1%); (4) Seaman's Insurance (0.4%); (5) Mutual Aid Associations Insurance (9.7%); (6) National Health Insurance (32.1%); and (7) NHI associations (3.3%).
The government is the insurer for all of the population, with very few persons taking out additional private medical insurance. The ratio of gross domestic product devoted to health care in 1990 was 6.8 %, which is a small amount internationally. There is unlimited coverage to all persons, and even foreigners who have failed to join the legally mandated medical insurance schemes and lack a foreign medical insurance policy are treated. The part of the bill which cannot be paid by the person or their family is paid by local or prefectural government contributions.
The government-based health insurance schemes pay for the services rendered. This is a system of insured diagnosis and treatment, with several basic assumptions:
(1) Freedom to set up a practice and to choose a place of treatment;
(2) Fee-for-Service Payment System; and
(3) Universal Medical Care Insurance.
Any qualified person can register a new clinic in any location, allowing competition, which should improve the quality of care. Full medical attention can be given as the patient's conditions require, and compensation is given based on the quantity and quality of service.
All the statutory plans cover medication, long-term care, dental care, and some preventive care. The Employee's Health Insurance provides various medical and dental care, hospitalization, medicines, transportation, and special nursing for non-occupational injuries and sickness of the insured and their dependents. There are cash benefits including an injury and sickness allowance, delivery expenses, maternity allowance, nursing allowance, and funeral expenses. To help offset increased spending by an aging population, in January 2001, the maximum cost a person may pay in one month doubled from 63,600 yen (for anyone) to 121,800 yen (for high income earners). Expenses beyond this level will be reimbursed. A sickness benefit is 60% of wages for up to six months. The maternity benefit includes 60% wage for forty-two days before delivery and fifty-six days after delivery. The guaranteed minimum delivery expenses include 240,000 yen. A nursing allowance of 2,000 yen per child is paid when a mother continues to nurse a child. Pregnant women can receive assistance and health checks at their local health center, following registration of the pregnancy.
Ambulance and emergency care is covered under the universal health insurance scheme, and a network is organized at local, prefectural levels. Physically, most ambulances are in the same building as the fire service vehicles. The general principle is that every person living in urban areas should be within five minutes of ambulance services.
There are several special schemes for payment to persons who are unable to avoid health care, about 0.6% of the population as described below. Additionally, there are special schemes for diseases, such as the "Guidelines for Counter-measures Against Incurable Diseases" of 1972, which includes relief of the burden of medical expenses on those concerned. The number of recipients of certificates of medical services for different intractable diseases was 245,195 persons in 1992.
The Health Services System for the Elderly, established in August 1982, provides a comprehensive system for health and medical services and equitable sharing of the medical care cost for the aged in the entire nation. The Maternal and Child Health Law provides for municipalities to offer health education, counseling, examination, and home visitation services for three year-old children and their mothers. The original Law of School Health was established in 1925 to prevent infectious diseases in schools. The current system includes mass screening for many conditions, including heart disease, renal disease, and tuberculosis. There are lists made of persons according to the Law for the Welfare of the Physically Disabled. There is a quota system for employment.
3. Lack of two-tiered system?
Very few Japanese take out additional private medical insurance, and it has a very minor role. This is because everyone must join one of the government health insurance schemes, which provide universal access, so there is little need to take out any other insurance. The private insurance is mainly concerned with cash compensations to cover incidental expenses and reimbursement to the families of injured persons. Although providers are officially prohibited from charging more than the fee schedule allows, the prices which patients pay for treatment under private medical insurance depend upon the decision of the health care provider and are less regulated than the government system. Foreign persons under foreign health insurance can basically be charged any price the health care provider decides, within the principle of competition. Motor vehicle accident insurance for "damages" to third party persons is common, but the payments are not for medical expenses, but are much greater for loss of expected lifetime earnings and misery. Causing the death of a person usually involves the transfer of over 100-million yen via such insurance, and is pursued through legal suits which may be settled out of court.
This having been said, although anyone can access any physician drectly, a recommendation letter or introduction is required to get treatment at a prestiguous hospital. Thus those who can get introduction letters by contacts, which could also involve money, can access the best facilities. Although bribery is illegal, imminent specialists may be illegally paid monetary gifts in the range 100,00 to 300,000 yen. These practices are seen more in patients hospitalized in the private rooms of universities and prestigious hospitals (Ikegami, 1992). There are also reports of illegal payments in geriatrics hospitals, which hospitals claim are for nonprofessional nursing care or diapers, etc., which are inadequately covered by health insurance (Niki, 1992).
G. Other Issues
1. Organ transplants from brain dead donors
One of the technologies which has been the most controversial in Asian countries is organ transplantation. In some ways, organ transplantation was a "flagship" for the introduction of bioethics debate into Japan (Macer, 1992), and thus this specific technology may have led to consideration of the need for the public to be involved in the debate on medical ethics. The issue of consent was closely linked to this question, and it raised questions of trust in doctors. Rather than religious views, the fundamental doubt in people's minds may have been, and may still be, trust in the medical profession (Macer, 1992). This issue of trust has also been cited as a reason why African-Americans are reluctant to donate organs (Siminoff and Saunders Sturm, 2000).
The most controversial issue involving the use of modern scientific technology is organ transplantation from brain dead donors. On this issue, there has been more debate in Japan than in any other country in the world. The first heart transplant was performed in 1968, and the second was delayed by this debate until 1998. The brain death law was passed in 1997, and by February 2002, there had been 18 transplants approved under the new law. For a country of 125 million people, that is almost nothing. There are still critics of the law permitting organ transplants from brain dead donors (Becker, 1999). One of the motivating arguments used to support organ donation is love of others. The organ donor cards in Japan feature four little angels (actually a Western concept) giving organs to save others.
A law enabling cornea transplantation was passed in 1958. This law, allowing physicians in general to transplant corneas from cadavers, requires prior written consent of the family of the dead donor, and does not require consent when there is no surviving family. In 1979, the Act Concerning the Transplantation of Cornea and Kidney was passed. The level of kidney donation (at least the reported level) has dropped in the last few years with the high profile of the brain death issue and fear of litigation. Reported by a survey from Japan's Women's hospitals, from 1980-85, ninety-six of 314 kidneys were donated from brain dead donors, and, in 1984-1988, 152 of 429 kidneys were from brain dead donors.
The Prime Minister's ad hoc Committee on Brain Death and Organ Transplantation report of January 1992 recommended unanimously that organ transplants from brain dead donors who have positively expressed a desire to donate organs should be permitted. They also say that no organ transplants should be performed from patients who have said they do not want to give organs. The committee also says that organs can be donated if family members agree that the deceased expressed a wish to donate organs, and that there has been no pressure on the relatives to make this decision. They recommended a third party (unnamed) should look at these cases to ensure there is no undue pressure to consent. In addition to these unanimous findings, there was a majority agreeing that brain death is real human death. A minority of four members said that brain death is close to human death.
Actually, since the mid 1985s, the level of public agreement is the same as the range as general opinion across Western countries, with about 25% rejecting organ transplants from brain dead donors. It was argued that Japanese have special cultural barriers to such donations, which has been dismissed by Japanese sociologists and religious groups (Nudeshima, 1997). In every culture, some people reject removing organs from bodies and their views should be respected. As mentioned, the more serious doubt in the minds of some people is whether they can trust doctors (Macer, 1992), and, among ten countries in Asia-Pacific area surveyed in 1993, Japan had the lowest trust in doctors (Macer, 1994a).
Although there have been many infectious diseases throughout history, AIDS has been associated with much ethical debate in Asia. Confidentiality should be maintained for medical information, and in some countries there are laws against those who break confidentiality (as in Japan). In the case of a fatal infectious disease like HIV, there is a possible harm to others, so it could fail as a legitimate exception if that harm is a real threat. The early years of the AIDS epidemic saw hospitals refusing persons infected with HIV, and disclosures of HIV status to third parties beyond government reporting (Feldman & Yonemoto, 1992). The exceptions to confidentiality have revealed how weak the sense of confidentiality is.
In Japan, the Physician's Law Article 19-1 says that a physician must see a patient to cure unless sufficient reason exists. This is used to argue against refusals of HIV infected persons. In a court case, if a patient was hurt as a result of doctor's refusal, the doctor has responsibility to pay. On 30 June 1992, a Kobe District Court awarded damages to a patient based on a refusal of emergency medical treatment. The judge said the physician has the responsibility to compensate the damage the patient incurred as a result of the refusal of care.
Also, there is a quota system for employment for HIV infected persons, and it is against civil code Article 709 and 715 for a company under the quota to refuse to hire an HIV infected person. Breaking this law means that the company must pay consolation money to the person.
The contamination of blood with HIV in Japan eventually lead to prosecution of some of the responsible persons who failed to stop non-heat-treated blood products being sold. This also helped erode the trust people had in physicians and the Ministry of Health and Welfare.
3. Gene therapy
The Ministry of Health and Welfare (MHW) in Japan announced members of their Ethics Committee to assess applications for gene therapy in 1994. The Ministry of Education released their guidelines in 1995, and both sets were revised in 1999. Each Ministry has a separate committee (with overlapping members). In university hospitals, drugs already need the approval of both ministries, and so will gene therapy. By August 1994, one gene therapy protocol had been approved for Niigata University and one for Hokkaido University. The guidelines are basically those of the National Institutes of Health in the U.S. The guidelines rule out germ-line therapy and limit cases to terminal illnesses without effective therapy. However, they only require verbal informed consent, not the written consent which may be determined by local hospitals' policies. Japanese scientists and public strongly support the use of gene therapy (Ng, et al., 2000).
4. Support for Japanese pharmaceutical industry
A 1993 scandal revealed that the Japanese Ministry of Health and Welfare was attempting to encourage Japanese industry not to use a foreign MMR (mumps, measles, rubella) vaccine, while risking public health with a vaccine with 100-200 times more frequent side effects. A controversy erupted in 1993 over the high incidence (1 in 400) of side effects from a MMR vaccine made and used in Japan. It was withdrawn after the media released unpublicized government risk data. The Preventive Vaccination Law was weakened in 1987 by removing its obligatory nature, and was further weakened in 1993 with the broadening of exceptions and the removal of provisions which penalized parents who failed to have their children vaccinated.
One of the embarrassments of the Japanese health care system is the corruption which is implicit in the way drug prices are set and reimbursement is made, as well as the contributions from pharmaceutical companies to doctors who use their drugs. The Japanese are the world's highest spenders on prescription drugs. Almost all general practitioners and hospitals have their own pharmacies for outpatients. Every two years the Ministry of Health and Welfare sets the "official" prices for all drugs. These prices are used to determine the charges to patients and the national health insurance systems. However, pharmaceutical companies offer drugs to hospitals at a discount. The permitted discount is 10%, which means that there is even official sanction of the scheme to have financial reimbursement for dispensing prescription drugs. In practice, the current discounts are 20-30%, or more in competitive markets. This means that hospitals and doctors benefit from prescribing drugs, and this explains why the consumption of drugs is so high. For example, antibiotic prescriptions around 1990 were about fifteen times greater per person than in the U.K. There are also financial incentives to use newer, more expensive broad-spectrum antibiotics, because the profit for the hospital is greater than dispensing older and cheaper antibiotics. This source of income is regarded as essential for private hospitals and clinics in the absence of government subsidies, if the current wage system is to be maintained.
A. The future of Japanese bioethics
The key turning point issue for bioethics in Japan was the unprecedented social debate over the law to allow organ transplants from brain dead donors. It is rare to see a debate between the public and the policy makers over any issue, but this issue led to the introduction of informed consent and the need for medical policy to be more sensitive to public concerns. The future could expect a further transition from paternalism to informed consent to informed choice.
There have been calls in academia for laws to control reproductive technology, but a limited law on cloning is the only legal instrument specifically made to regulate reproductive technology, despite at least a similar public disagreement with that technology as for declaring brain death. There is also discussion of amending the abortion law to implicitly include abortion for reasons of fetal handicap, but it is likely that genetic counseling programs will continue to expand without such a legal change.
The Japanese health care system provides an equitable level of health care coverage for a low proportion of the gross domestic product. In a national survey in 1985 of those persons who had experienced an illness but not seen a physician, only 0.4% gave economic reasons. This suggests that almost no one is prevented from seeking medical care for economic reasons. There are a complex mesh of insurance systems to cover all persons, and the major critic has been the JMA which has suggested one universal system. Other critics suggest it may be too rigid to allow proper competition. However, it is based on the ethical presumption of universal coverage for equivalent services. It is being challenged by the aging population, and the gradual introduction of more "user pays" fees (Watts, 2000).
The bioethics debate may be the catalyst required to transform Japan from a "paternalistic democracy". People of any country may resist the rapid change and globalization of ethics, ideals, and paradigms as ethnic and national identities may be changed, or lost, especially countries with such a long history of culture. How countries approach globalization is a fundamental question, but many individuals in countries with access to common news media have already answered the question by their converging lifestyles and values. To the extent that human rights and the environment are more respected, this trend is to be encouraged.
When Japan opened its doors to Western society in last century, it led to the introduction of a newly emerging science and scientific paradigm, only part of the fabric of Western society. Meanwhile, Western society has continued to evolve, and bioethics has emerged. It is now time for bioethics to also be developed in Japan. Part of this development includes importing and developing ethical approaches which can be debated, but a more important part is the involvement of the public in discussion and development of the indigenous diversity of ethical traditions. However, it must be noted that, in terms of equity of access to health care systems, Japan has achieved this at a low cost, and the principle of universal coverage is unlikely to be challenged for the foreseeable future.
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