It is not the purpose of this paper to give a new model or definition of health concept and to legitimate it, but to reflect critically on the way to use or investigate this tempting and puzzling concept. Recently health has ballooned to be very pseudohypertrophic. It is a synonym for happiness in respect of totality and ideality. After Kant, these concepts should not be used "constitutively", but may be used only "regulatively". Health measurement is an example of misuse. Another misuse is positive health, in which QOL is frequently stressed. Originally QOL has been used in the social sciences, the social policy processes, or in clinical practices for individual patients. Positive health, in addition, tends to apply QOL to healthy persons. This abuse is due to pseudohypertrophy of health concept; health as flourishing human life or self-fulfilment. In respect of health concept, from medical philosophy to medical ethics, from the clinical to the preventive dimension, the dual transition of our concern is proposed.
Informed consent is the concept that has already been established in the Helsinki Declaration and Lisbon Declaration, and its necessity is now widely understood in Japan. There is a difference, however, between the principles of the declaretions and the actual medical situation. This is often true in various cases of medical ethics. It is the present situation in Japan that the ethical standards are connected with ambiguous descriptions such as "case-by-case" and emotional standards such as a doctor's sympathy for a patient and his or her death. In this report, the author tries to establish the ethical standards for informed concent so as to combine the principles of the declarations with the respective cases. It is stated that informed consent is to maintain the collaboration between the patients and medical staff by studying the Law of Moses. It is also stated that the maintenance of the medical standard including informed consent be considered from the viewpoint of ethics. In this report, the author analyze the ethical thoughts in the judicial precedents whose issues of law is in violation of informed concent. This maintenace of the medical standard itself is just the ethical standards combined with the principles of declaration, the actual medical situation and judical process.
Casuistry derives its tradition from the medieval Catholic practice of moral discussion dealing with difficult cases (=cases in Latin, hence casuistry) which can allegedly offer ways to resolve moral dilemmas without recourse to any ethical theories or overarching ethical principles. Contemporary bioethicists such as Albert Jonsen claim that the casuistic approach pays attention to a particular case with its circumstances, analyses it, compares it with other cases and decides its moral status as to whether it is a paradigm case or subsumed under a different category. A casuist makes a stark distinction between a case-based approach and a theory-dependent approach in ethics. The principle-based theorists such as Tom Beauchamps (despite their recent affinity with coherentism) are derogatorily called principlists whose main job is to strictly and deductively apply ethical principles in their "applied ethics". The casuistic bottom-up approach is shared by communitarian ethicists whose commitment is limited only to the close relationship in the local community. One of the casuistic rules employed to decide the morality of an action is called the doctrine of double effect. It justifies an action when it is performed from a good intention, such as to stop the suffering of a terminal-stage patient, even though the actual consequence is her death which was foreseen but not willed. This doctrine is subject to an abuse, and because it could camouflage an intention to bring about a negative effect, it has to be rejected. We can learn from casuists the value of an approach to analyse individual cases with reference to paradigms. A case analysis is an effective way of teaching ethics and of resolving moral dilemmas. But we also have to employ common values applicable to everyone in a global community to guide our actions, such as respect for persons, general welfare and the democratic decision-making procedure.
In the field of occupational medicine and health services, occupational physicians often face ethical dilemmas or conflicts concerning their independence and the privacy of employees' health information. It is stated that, by law in Japan, employers must assume full responsibility for the safety and health of their employees at work. However, the independence of occupational physicians is not clearly regulated by the law. Therefore, an executive director has an obligation to administer the health data of workers and he may require an occupational physician to disclose the medical information of employees. The actual ethical dilemmas of occupational physicians are as follows: 1) company loyalty vs. medical ethics (e.g. disclosure vs. confidentiality of medical information), 2) workers right to know or to work vs. company managerial policy (e.g. do employers inform workers the health effects of chemicals in the workplace accurately, assessment of fitness for work, return to work, restructure of work system), 3) environmental ethics vs. bioethics (e.g. occupational physicians must have the responsibility for not only employees but also the community as well as the company). In order to dissolve these dilemmas, occupational physicians need to have three ethical opposing standpoints, namely, bioethics, environmental ethics and utilitarianism. This is the ethical peculiarity of occupational professionals in comparison with clinical doctors and it is not easy to exercise ethical judgment for employees and the company as specialists of occupational medicine. Therefore, the establishment of ethical codes or guidelines for occupational physicians are required in Japan as well as the UK.
After a short description on liberalism in health care from the viewpoint of both patients and physicians, based on more than 45 years of clinical practice, the situation of liberalism in health care of today's Japan was introduced. Although Japan has achieved the longest average lifeexpectancy in the 1990s, liberalism in health care of Japan is now in a situation of decline, and maintenance of the humanitarian patientphysician relationship and/or clientprovider relationship has been threatened greatly because financial, social and bureaucratic powers are now so strong in the health care of Japan. The situation of the health care system in Japan may be called socio-nationalistic with a concrete basis of capitalism of American model; in other words "competitive socio-communism"!
Psychotic patients are different from demented people because they possess the ability for competence in principle. Therefore, medical treatment must be performed based on the concept of informed consent. But in reality, there can be discrepancies between their overt-will and covert-will, because they have pathological thought processes due to double orientation and ambivalence. So we must speculate on their true wishes, and act appropriately. If they express their true wishes covertly, performing medical treatment on them involuntarily is not paternalistic intervention. I consider this behavior one which is based on self-determination. In this situation, we must carry out treatment for somatic complications, and the range of the treatment we can do should be within the area of low invasive therapy, for example, medication or injection. We may not arrive at a consensus for surgical operations and more invasive therapies. I report on two schizophrenic cases in this paper, one with breast cancer and the other with diabetes. We could not carry out a surgical operation for the first case, but I am now using injection of insulin for the second case. In the field of clinical medicine, there is a tendency for informed consent to be considered part of the therapeutic contract. In this context, overt expression of agreement is necessary in order to set up the contract. Psychotic patients express their wishes for treatment unclearly or covertly, so they do not have the opportunity to receive treatment even though they want to. Expanding the bounds of informed consent for psychotic patients would place them at a disadvantage and deprive them of medical treatment. I worry about the emergence of a new form of discrimination against psychotic patients.
Liberalism and self-determination are based on a typical modern age idea of person: From Locke and Kant to the contemporary English-American Bioethic studies, the self-consciousness stands at the center of this idea. According to this idea of person, as is known, the embryo and disabled newborn are excluded from persons. On one hand we must keep this idea, which supports the thought of self-determination, the credo of the liberal society. On the other hand, however, we need to revise the idea of person. Focusing on the issues of the disabled embryo and newborn, I criticize this idea of person and suggest a revised idea instead. To be noticed is the phenomenon emphasized by sociology and psychology that the self shows up not alone but through interaction with others. This phenomenon suggets that the self-consciousness includes by nature the consciousness of others. To argue this is the point of this study. Should the self-consciousness include recognition of others, it is to be shown that a man would be a person, only if he is recognized. Then the matter of the idea of person is not that of the definiton of person. The problem is whether we can deny the recognition of others. From this point I also try to restrict self-determination: Abortion is not to be justified by the self-determination of the persons concerned: of parents, in particular of mothers.
1. Historische Vorbemerkung: a) ANSTOSS ZUR BEGRUNDUNG DER PSYCHOANALYSE: Unerklarbarkeit hysterischer Symptome. b) LUDWIG BINSWANGERS DASEINALYSE: Der Mensch als Person (phanomenologische Anthropologie) and seine Verflochtenheit mit der Welt (die Bedeutung von Husserl and Heidegger). c) ZUR CHER SCHULE DER DASEINSANALYSE VON MEDARD BOSS: Die Ubernahme von Heideggers Konzept des Daseinse 2. Die Hauptentdeckung Freuds-der Begriff des Unbewussten: a) HISTORISCHE VORBEMERKUNG: Die "petites perceptions" von Leibniz and ihre Auswirkungen in der Folgezeit. b) FREUDS AUSGANGSPUNKT: Bewusstseinspsychologie. c) FREUDS KONZEPT: Metapsychologie, die "hinter" das Bewusste zuruckgeht; die Parallele zur "Metaphysik" Hinweis auf Lacan. 3. Daseinsanalytische Stellungnahme zum Unbewussten: a) ANSPRUCH DES PRAKTIKERS FREUD: Die vermisste psychologische Grundlage der Psychiatrie; Interpretation seelischer Vorgange nicht als physiologische oder chemische Prozesse, sondern als Sinnzusammenhange. Deshalb die Bedeutung, die der Austausch von Worten zwischen Arzt and Patient hat, ebenso die Bedeutung der zwischenmenschlichen Beziehung in der psychoanalytischen Behandlung. b) NAIVITAT DES THEORETIKERS FREUD: Verborgener Cartesianismus (Dualisms von Korper and Seele) and Naturalisms (naturwissenschaftliche Erldarungsmodelle). c) DASEINSANALYTISCHE KRITIK: Der konkrete Mensch in seinem In-der-Welt-sein, als sprechendes Wesen, mit seiner Lebensgeschichte and in der Beziehung zum Mitmenschen kommt im Konzept der Metapsychologie gar nicht vor. 4. Wird die phanomenologische Kritik der Daseinsanalyse (insbesondere der von Boss) dem Konzept des Unbewussten vollig gerecht? a) FREUDS INTENTION: Mit dem Unbewussten will Freud auch das missing linkezwischen Mensch and ubriger Natur (den nichtmenschlichen Lebewesen) gefunden haben. b) ANFRAGE AN DIE DASEINSANALYSE: Sie entwickelt zwar einerseits ein dem Mensch als Wesen der Freiheit adaquates Konzept, 1 asst aber ausser Acht, dass der Mensch auch ein Naturwesen ist (auch wenn menschliche Natur mit tierischer nicht einfach gleichgesetzt werden darf). Das zeigt sich in den Rhythmen seines Lebens, im Schlafen and Wachen, den Perioden der Nahrungsaufnahme, in der Bedeutung der kosmischen Rhythmen, uberhaupt im Bereich dessen, was Tellenbach "Endon" nennt (ausgehend vom Versuch, die "endogenen Depressionen" zu verstehen). c) AUSBLICK: Das transkulturelle Gesprach von Hubert Tellenbach-Dialog uber "Natur" mit Bin Kimura.
Studies on liberalism in medicine, as theoretical foundations for patients' self-decision-making, have not been fully explored. This is because liberalism itself consists of historical and ambiguious areas where less attention has been directed to its intent and debates. Renewing the definition of liberalism is among the most important duties that we must now (achieve?) pursue. "Withholding of life sustaining-treatment" as a role of the physician has been actively debated in the United States, but in Japan we have not discussed in detail about the role of the physician over the relationship with patients and families. The meaning of "futile" as a concept for terminally ill patients encounters many difficulties such as informed consent and patients' self-control. But the emphasis on finding a common ground between patients and physicians wishes remains unanswered in Japan. Concerning rejection of blood transfusions by Jehovah's Witnesses, the situation about patients' self-decision making in Japan has been at stake, since the religious and precautious problems have surrounded the concerns. But in February 1998 the Tokyo High-Court of Justice held that blood transfusions without consent are illegal and implied that we are going to get the mutual understanding of real self-decisionmaking. Recognizing the increased interest in liberalism, recent developments in health care policy have drawn sharp distinctions between medical treatmen for patients who are competent to make decisions and those who are not. While traditional liberalism favors competent patients, medical liberalism includes areas to which incompetent patients, such as embryos and patients in vegetative states belong, In these cases, liberalism itself can not be principally realized. A discussion about liberalism in medicine raises questions not easily answerd without consideration of one's own values and the values of society.
For what purpose should a person, while living or in death, be used? This is the crucial issue of a human's 'Wesen'. Namely, a human being's 'Wesen' requires that one be treated, during life itself and even in death, as an entity with its own reghts. Therefore, if through one's own right of self-decision, we try to justify the use of one's body for the act of organtransplantation, the nature of the patient's, for example that of brain dead, intentions as well as clear legal standards must be formally defined. In cases in which certain endeavours do not violate a person's 'Wesen', when expression of the volition of represontative in the form of consent with sufficiently precise information is acquired, then the possibility of representative with legal authority can be considered. However, when the violation of 'Wesen' is involved, it is requisite that the said person must state, through a formal written declaration, that his or her body can be used as a means for a certain purpose. Furthermore, the creation of a third party's right to decide on the use of the said patient's body is also essential. Therefore, in this case, a consenting representative inevitably won't be effectuated.
The issues of "informed consent" and "the patient's right to self-determination" have been discussed in the philosophical, ethical, and legal areas in medicine. In particular, the refusal of blood transfusions by Jehovah's Witnesses is regarded as a typical case of the discussions on the validity and limitation of the patient's right to self-determination. It is well-known that Jehovah's Witnesses refuse allogeneic blood transfusions on the basis of Biblical statements, such as "you must never eat flesh with its life still in it, that is the blood" (Genesis 9:4) or "you are to abstain… from blood" (Acts 15:29). What is the standard medical practice where a patient absolutely refuses blood transfusions? Is there the limitation of the patient's right to self-determination? How far is it possible to approve the choice of medical treatments by patients? In this paper, such problems are discussed from the following three standpoints. 1. The concrete contents of the refusal of blood transfusions by Jehovah's Witnesses. 2. The contents of the guidelines of ethics committees in the university hospitals of Japan. 3. The controversial points of these contents (1. and 2.) and the Japanese legal system. My conclusion is as follows : 1) If a Jehovah's Witness patient has his own judgement, whether he is an adult or a minor, and is not in a state of emergency, his will to refuse blood transfusions must be respected. 2) If he is an unconscious adult in an emergency and has an advance directive, his will must be respected. 3) If he is an unconscious minor in an emergency and medical doctors have no alternative choice, it will not be against the law that they give blood transfusions to him, because there has been no judicial precedent for such a case in Japan as yet.
Death with dignity and euthanasia have been discussed in conjunction with misery in the dying process. Lack of understanding of terminal care may be contributed to on-going confusion in discussions of this issue. For example, pro-life groups often make the criticism that self-determination involving withholding or withdrawing life-sustaining treatment from terminal patients undermines the value of human life. This criticism is not valid. Life-sustaining treatments in the terminal stage are performed without medical evidence of effectiveness, and are hence called extraordinary treatments. Since there is no definite treatment option in the terminal stage, any method can be chosen from available teratments. Even if a patient chooses withholding or withdrawing life-sustaining treatment, no other person can object to the decision because nobody is morally obliged to receive uncertain extraordinary treatment for mere prolongation of the dying process. Here, self determination does not devalue human life. Rather, life and self-determination can be compatible when a terminal patient is cared for with evidence-based medicine.
Psychiatric practice in modern Japan has a history of about 100 years. In the early stages, legal regulations placed more emphasis on the protection of society in general rather than the protection of the patients with mental disease. However, in the Mental Health and Welfare Law as currently enforced, it is stressed that the human rights of each patient must be esteemed as much as possible and the core of the policy is on the liberalization of the therapeutic environment. Hence the history of legislation for psychiatric practice in Japan may be interpreted as a process with liberalistic tendencies gradually influencing this legislation. On the other hand, when we look at the physician-patient relationship in psychiatric practice in severe cases, in particular, in the cases of schizophrenia, volition and individual thinking are often disabled in both content and application. In these cases, where mental disorders reach such a stage that human judgment is impaired, informed consent cannot be obtained, and medical treatment by the "autonomy model" is practically impossible to perform. In this case, we might say that from the beginning psychiatric practice has gone beyond the frame of liberalism. The patients are often confined in a certain morbid thinking and cognitive system, and they can speak only from inside a certain framework, and the disease is based on "lack of freedom in thinking". The purpose of psychiatric practice is to help the patients be free from such morbid world and to help them speak freely and openly. In this sense, the treatment for the patients may be defined as an attempt to acquire liberalism. Therefore, perhaps as in other countries, psychiatric practice in Japan may be defined as a process toward the restoration or establishment of liberalism both in the historical sense and in each individual physician-patient relationship.