- 広島法学 (ISSN:03865010)
- vol.42, no.1, pp.87-121, 2018-07
Not all governmental acts that infringe the rights guaranteed by the Constitution are declared unconstitutional. In particular, in the case of disadvantaged people such as the mentally disabled people, regardless of whether their human rights are clearly infringed, there are many cases that are not considered serious problems legally or socially. Why was human rights not guaranteed to people with mental disorders? This article is intended to obtain an answer to this question by overviewing the historical developments of human rights protection for the mentally disabled in the United States and in Japan.Disadvantaged people have weaknesses in society in the sense that they need close involvement with others and the society to fulfill their lives. Also, although not all disadvantaged people, some children, elderly people, and disabled people have weaknesses as subjects in the sense that their decision-making abilities are not sufficient. People with mental disorders seem to be strongly equipped with these two weaknesses. No one says that people with mental disabilities do not enjoy human rights, but there is no doubt that human rights have been suppressed for many years in psychiatric care.Over the past several decades, the two models were intensely confronted with respect to psychiatric care: the "medical model" that puts the greatest value to health and the "human rights model" that emphasizes autonomy and equality. The United States has led the human rights model. On the other hand, Japan is firmly rooted in the medical model based on the culture that emphasizes community rather than individuals.In the United States, the compulsory hospitalization system which passed through trial and error from the colonial era had finally begun to be critically considered from the constitutional point of view on the courts and legislatures in the late 1960s.Many state laws provided "imminent danger to self and others" of the substantive requirements of hospitalization and procedures similar to criminal proceedings. The tendency of such state laws was the minimum necessary condition to harmonize the compulsory hospitalization system and the constitution. But society that witnessed former hospitalized patients who were homeless in large cities lost confidence in the correctness of legal reform and began to explore new ways. In some states, there has been a movement to make the substantive requirement relax again.Regarding the substantive requirements and the hospitalization procedures as well, it seems that the conclusion is influenced by the difference in the basic way of thinking with regard to the compulsory hospitalization system as follows, whether to emphasize liberty of mentally disabled people or whether to value welfare (health) of them.