For the course “Politics, Law and Society in Japan: A Global Perspective” I wrote a paper about Japanese forensic mental health, focusing on the Medical Treatment and Supervision Act, implemented 10 years ago. I will post this paper in two parts. The first part deals with the historical background and how and why this Act was established. The second part gives a short overview of the functioning of the Act and summarizes the challenges the Act already has been faced with.
How mentally ill offenders are treated has always been a difficult issue to deal with, for the reason that they are situated in a double paradigm: on the one hand they have committed a crime and are therefore offenders; on the other hand they are deemed to be ill and should receive treatment. According to article 39 of the Japanese Penal Code, enacted in 1907, “an act of insanity is not punishable and an act of diminished capacity shall lead to the punishment being reduced” (心神喪失者の行為は、罰しない。心神耗弱者の行為は、その刑を減軽する). The Penal Code, however, does not provide any measurements to treat mentally ill offenders acquitted due to their disorder. Only until recently, forensic mental health was covered by general health treatment. In fact, no special system existed for such offenders, making Japan unique in that way. As a result, mentally ill offenders were treated either in prison when convicted or in general psychiatric hospitals.
In July 2005, the Act for the Medical Treatment and Supervision of Persons with Mental Disorders Who Caused Serious Harm (shortened to “Medical Treatment and Supervision Act”) (心神喪失等の状態で重大な他害行為を行った者の医療及び観察等に関する法律 （略:医療 観察法)) was enforced and brought about radical changes. For the first time, the act aimed at the rehabilitation and the right medical treatment of mentally ill offenders. The system established two different types of treatment: inpatient and outpatient treatment. Where previous acts were mostly highlighting the fear of recidivism, the act of 2005 specifically encourages reintegration of mentally ill offenders in society. While the enactment and transition went smoothly, Japan is still struggling with optimizing outpatient treatment.
Traditionally in Japan, a mental disease was not regarded as a medical problem but as the possession of an individual by evil spirits, which could therefore only be treated by exorcist rituals like purification, incantation or shamanist treatment (Mandiberg, 1996; Russell, 1988). The construction of a confined room at the family home to lock up lunatics (zashikirō 座敷牢 (Mandiberg, 1996), nyūkan 入監 (Salzberg, 1991)) was a common tradition until the 20th century.
The mad could also resort to Buddhist or Shintoist temples and shrines, sometimes resulting in rural communities around these places of refuge for the mentally diseased, and stimulating the reintegration in society. The Iwakura village near Kyoto was one of these pilgrimage and refuge places. Later in 1884, it transformed itself from a community of boarding houses where farm families cared for mentally diseased, into a successful private mental hospital until its closure in 1945 (Nakamura, 2006).
During the Edo period (1603-1868), the family head became heavily responsible for the conduct of his family members, and could end up being severely punished for the criminal acts of mentally ill diseased. As a result, mad people were ostracized by removing their name from the family register or confined, whether it was at home, at a temple or in a public prison (nyūrō 入牢) (Russell, 1988). When the proper supervision of mentally ill individuals became impossible, they were often confined with medical care under supervision of eta (tameazuke 溜預) (Yamazaki, 1931). Nevertheless, home confinement was still the primary way of dealing with lunatics.
On the one hand, it should be noted that these provisions were not established for the good of the mentally ill, but rather seen as a necessary measure to maintain social order. On the other hand, the traditional perception of mental diseases altered under the influence of Western medicine and philosophy, brought to the isolated isle by Dutch physicians during the 19th century. Compared to the inhumane imprisonment and traumatizing rituals, they introduced new concepts of psychiatric therapy, which were later put into practice by Japanese students of Western medicine.
Both perspectives were developed further during the Meiji Period (1868-1912). Rapid social change compelled the Japanese government to issue laws concerning the attitude towards the insane. A circular in 1878 established certain rules for confinement of the mentally ill: imprisonment at home required a report of a physician and an official request of the family. Those disowned by their family were confined to detention centers (Salzberg, 1991). Because mentally ill individuals were considered as possibly dangerous subjects for society, a series of police orders stipulating the control and punishment of the insane followed (Kuwabara & True, 1976). A law in 1884 stated that mentally ill could only receive treatment if a doctor appointed by the police had examined them. When successfully confined, police authorities checked the patients once in a month. At the same time, however, a critical stance towards confinement and incarceration urged the demand for proper treatment centers. The first mental hospital in Kyoto was established in 1875 (Nakamura, 2006).
One specific case drew particular attention to the necessity of a mental health law. The daimyō of Sōma prefecture, Sōma Tomotane, at the time involved in a family dispute, was declared to be schizophrenic and thus confined to a zashikirō. Loyal retainers believed this was a conspiracy of the other family members against their lord. They kidnapped the daimyō from the psychiatric hospital he had been transferred to and made the details about his confinement public. This was largely covered in the media, including international newspapers. As it became clear that formal mental health regulations were yet to be established, the Meiji government feared the Sōma affair would undermine their long-fought efforts to develop Japan as a modern state (Russell, 1988). As a result, The Law for the Custody and Care of the Mentally Ill was enacted in 1900. With this law, families were officially permitted to build zashikirō and were kept legally and financially responsible for their supervision and the actions of mad family members. The law was presented as a protection against illegal and arbitrary confinement, but in fact encouraged traditional and outdated practice. Again, the government’s main concern was public safety and order (Mandiberg, 1996).
Up till now, I have only discussed the attitude towards the mentally ill in general. This is simply because there were no special measurements separating mentally ill offenders from normal offenders. Insane individuals were prevented from committing crimes by incarceration or confinement (‘punitive treatment’) and did not receive medical assistance. Moreover, physicians were rarely involved in mental health treatment. The responsible family members were still forced to rely on shaman rituals, combined with familial care. We can see this as a type of community psychiatry, though very primitive and non-therapeutic (Kuwabara & True, 1976).
A survey, conducted by the government in 1915, indicated that 82% of mentally ill individuals were untreated. Hence, the Law for the Custody and Care of the Mentally Ill was supplemented with the Mental Hospital Act of 1919. This act, again for the sake of public safety, regulated compulsory confinement in a psychiatric hospital, under permission of the state or responsible family members. Nevertheless, most mental patients were still confined at home, taken into account that by World War II, only six public insane asylums had been built in Japan. The government had decided to fund mainly private mental hospitals, whose treatment only rich families could afford (ibid.). The limited number of beds dropped during World War II, when the mentally ill were neglected and died of starvation due to the National Eugenics Act of 1940.
In 1950, opposition groups expressed concern for the proactive detention mentally ill people were subjected to. The Mental Hygiene Law was enacted, abolishing home confinement and demanding the establishment of prefectural psychiatric hospitals. Mental diseases were acknowledged as medical problems that required appropriate treatment. However, households remained legally and financially responsible for the acts of mentally ill family members. The law defined three types of hospitalization when a certain degree of danger for the insane himself and his environment could be observed: compulsory or provisional compulsory admission ordered by the prefectural governor, and compulsory admission requested by the legal guardian. Still, the fact that no consent from the patient was needed was seen as a contradiction to the Constitution (Kunihiko, 1991). Once admitted to a mental hospital, there were no provisions to review the decision for another type of hospitalization, and few people were ever discharged. At the same time, options for community placement were very scarce (Mandiberg, 1996). During the 1950s and 1960s, the number of psychiatric beds rose significantly.
Criminal offenders deemed mentally ill were now often hospitalized instead of incarcerated. Consequently, more facilities were needed. This became clear in 1964 when a schizophrenic young man assaulted Edwin Reischauer, the American ambassador to Japan. On that account, the Japanese police authorities requested more powerful action against the mentally ill (Koizumi & Harris, 1992). This request was turned down, and instead more outpatient and community services were stipulated in the Revised Mental Hygiene Law of 1965 (Nakatani, 2012; Kunihiko, 1991). It has to be noted, however, that forensic health still did not differ from general mental health. Again, the 1965 law was implemented to maintain social order, and not to effectively help the mentally ill.
In the 1980s, scandals lead to the establishment of the Mental Health Law (1988) that emphasized the importance of human rights and rehabilitation (Nakatani, 2012). For the first time, the legal rights of the mentally ill were acknowledged and a Psychiatric Review Board reviewed their hospitalization (Cohen, 1995). Although this model was implemented, it appeared impossible to be carried out accordingly (Mandiberg, 1996). The Mental Health and Welfare Act replaced the Mental Health Law in 1995. This law mainly stipulated the increase of outpatient facilities, welfare services and participation in community (Kunihiko, 1999). As these amendments were hardly applicable to mentally ill offenders, only few psychiatrists were inclined to work in forensic health treatment (Nakatani, 2012).
In 1999, a White Paper of the Ministry of Justice pointed out these problems. Public prosecutors, who were more likely to file a report to the prefectural governor in case they assumed criminal responsibility, only indicted a small number of mentally ill offenders. A medical examination was subsequently carried out. If the assumption was verified, the prefectural governor commanded an involuntary admission. Although this procedure assured quick treatment for acquitted mentally ill offenders, the chance to stand trial was minimalized. Furthermore, general mental health hospitals often did not have the required security to receive criminals. In addition, psychiatrists carried a heavy responsibility, as they had to decide about the discharge or continued confinement of the patient, considering the possibility of recidivism (Nakatani, 2000).
END OF PART ONE
The second part will give a short overview of the functioning of the Act and will summarize the challenges the Act already has been faced with.
citation of this article: Van Enis, Ann-Sofie. “The Medical Treatment and Supervision Act (2005): Forensic Mental Health in Japan Today.” Nippaku, January 20, 2015. https://nippaku.wordpress.com/.
 The treatment by shamans or monks was often very expensive. Hence, rejection of the mad family member became a common practice (Official Order of the Kyoto local government, No. 325, July 25, p. 187, cited in Kuwabara & True, 1976).
 Mandiberg (1996) compares this to the city of Gheel in Belgium, whose concept of ‘family care’ inspired the Iwakura hospital, an ambition that never came true (Hashimoto, 2014).
 Because of the institutional gonin-gumi system (五人組), a group of five households shared collective responsibility.
 The eta穢多, burakumin部落民 or hinin非人 was an outcast group because of their impure or death-associated occupation. Together with the mad, underage and extremely ill offenders were supervised as well in these special detention centers (Salzberg, 1991).
 精神病者監護法 in Japanese (Moriya & Ujiie, 2008).
 Department of Welfare, Bureau of Medical Administration (1955), cited in Kuwabara & True, 1976.
 及び精神病院法 in Japanese (Moriya & Ujiie, 2008).
 In 1941 there was place for 24,000 mental patients all over Japan. By 1945, only 4,000 beds were left (Russell, 1988). The Iwakura Mental Hospital was forced by the Japanese army to close his doors (Nakamura, 2006).
国民優生法In Japanese. Available at http://www.res.otemon.ac.jp/~yamamoto/be/BE_law_04.htm, accessed on 29 November 2014.
 精神衛生法 in Japanese (Encyclopedia Nipponica online, accessed on 29 November 2014).
 精神衛生法改正 in Japanese (Moriya & Ujiie, 2008).
 In 1984, two patients died by abuse in The Mental Hospital of Utsunomiya. Further research disclosed that over three years, 222 of the 1,000 patients hospitalized there had died in suspicious conditions (Jakopac & Patel, 2009). The United Nations Commission on Human Rights criticized Japan’s mental health system (Gostin & Gable, 2004).
 精神保健法 in Japanese (Moriya & Ujiie, 2008).
 “Few patient-initiated PRB review applications are filed, and the few of those that are filed result in recommendations for discharge or change in treatment” (Mandiberg, 1996).
 精神保健福祉法精神保健および精神障害者福祉に関する法 in Japanese (Moriya & Ujiie, 2008).