In Japan, when a patient who does not have the ability to agree to his/her own health care has to receive certain care, family members usually agree to it without clear legal authority. However, it is thought that some patients need an agent with clear legal authority in order to respect their self-determination in health care. I think that an agent with clear legal authority can consent to health care on behalf of a patient in Japan, due to the new guardianship system for adults implemented in April of 2000 because of the increasing number of demented elderly people. If we make use of the adult guardianship system, the self-determination of an incapable patient is more likely to be respected because acts of a guardian can be supervised by a supervisor and a family court. In Germany, when a person without the ability to agree to health care receives certain health care, an agent with clear legal authority has to be assigned. In addition, when an incapable patient receives health care that involves a risk of death, it is necessary to obtain permission from a court. In Japan as well, there are some cases in which medical care decisions are required to be subjected to examination by an outside organization, such as a court or a hospital ethics committee. However, at present, a treatment policy cannot be decided by a court in advance of the treatment, and hospital ethics committees do not work sufficiently. We must first fortify the system of hospital ethics committees. We also need a third organization, for instance an independent governmental agent which has a quasi-judicial function and which decides a treatment policy in advance of the administration of the treatment.
