II. RECENT TRENDS IN THE SITUATION OF DYING IN JAPAN

__These traditional socio-cultural elements of perceiving death as an acceptable process have been vanishing as the Japanese have applied modern biomedical technologies more frequently in well-equipped hospital settings. However, the involvement of family members in the process of dying and particularly in the event of death itself continues in a variety of ways. The Japanese situation in terms of dying patients is becoming much more similar to that found in advanced hospital settings in many countries of the world than it is different. Now, in Japan, a majority of people end their lives in the hospital, surrounded by high-technology machines, apparatuses and equipment. However, in a recent survey published by the Yomiuri Shimbun on June 15th, 1991, half the respondents said they would prefer to die at home.
__There has been a tradition of not explaining to terminally ill people the true nature of their condition, on the grounds that this is the kindest way to proceed (Kimura, R. 1991a). However, views about this matter are changing. In the same nationwide opinion poll published by Yomiuri Shimbun, 65 percent of the participants said that if they were terminally ill they would like to be given full diagnostic information about their condition. However, only 22 percent of the people questioned said they themselves would definitely be prepared to disclose such information to a member of their family. The same survey indicated that 78 percent of the respondents considered palliative care desirable, even though it might shorten life; 16 percent thought life should be sustained as long as possible, regardless of the pain that patients might be suffering.
__The National Matsudo hospital is one of the few hospitals in Japan with a palliative care unit. The use of morphine has significantly reduced pain levels for a high proportion of the patients in this establishment (NHWJ 1995).
__However, until very recently, methods of pain control were not well developed in the Japanese medical service system. For example, my father was hospitalized with lung cancer 20 years ago. Although he suffered very severe pain, he was never told the result of the diagnosis. Even the easing of his pain through the administration of morphine was restricted to a particular time sequence, and often his pleas for an injection were rejected on the grounds that the proper time had not arrived yet. This was the reason he sincerely expressed his final wish to die peacefully at that very moment; tragically, however, he suffered tremendously with this unbearable pain until his death (Kimura 1987).
__One of very few surveys exploring cancer pain, conducted by Dr. Mizuguchi of Chiba University in 1987, revealed that 68.9 percent of end-stage cancer patients experience pain and 8.7 percent of them die without having that pain relieved (Mizuguchi 1987). Mizuguchi has also gathered some interesting comments indicating less understanding of and interest in the use of pain control among physicians than is desirable. These physicians seem to fear that their use of such measures may create a narcotic addict or possibly shorten a patient's life.
__Japan has a very rigid Narcotics Control Law (Law 14, March 17th, 1953) that functions effectively, but according to this survey the medical use of narcotics is extremely limited. Such a rigid and complicated system of justifying the use of narcotics has forced many cancer patients with treatable pain to suffer, compared with other advanced countries. The situation is changing only slowly (Takeda 1994).
__A special task force on terminal care, set up by the Ministry of Health and Welfare, issued a report in 1989 that encouraged the disclosure of diagnostic information to patients, provided that consideration was given to patients' life histories, personalities, relationships with family members, and other factors. The use of drugs for pain control was favored. The report also dealt with various additional matters such as spiritual requirements and the care of family members. The idea that people should not have to accept without question the authority of doctors is gaining ground in Japan.
__Unfortunately there are still too few trained people to cope with the many problems associated with dying. Therefore, responsibility for the care of the dying should be shared among health professionals as well as those in other careers. Changes in the mentalities of both health care providers and patients, including a recognition that medical systems and institutions are not immutable, are sorely needed.
__Efforts have been made by some volunteers and hospitals in Tokyo, Osaka and elsewhere to improve the care of the dying. There are signs of public approval for such work; since April, 1990, the government has increasingly approved the provision of financial support for palliative care through the national health insurance system (Kimura 1991a).

III. ADVANCE DIRECTIVES AS A NON-LEGAL DOCUMENT IN JAPAN

__In the context of terminal care in Japan, the notion of "advance directives" has never been regarded as a legally endorsed expression of the patient's intention, whatever the form of particular documents. For example, various kinds of documented advance directives issued by several voluntary organizations have no legally binding force on the medical provider.
__It is true that the number of members of the Japanese Euthanasia Society, established in 1976 and recently renamed the Japan Society of Dying with Dignity (JSDD), is increasing. It is also notable that the JSDD makes available a very general form called the "Dying with Dignity Declaration (Living Will)", which seeks to prevent the provision of futile medical treatment. However, the number of living will card holders is very small and the JSDD's "Dying with Dignity Declaration" has never been legally recognized during the 19 years of its existence (JSDD 1990).

3.1. Socio-Cultural Aspects

__Several factors particular to Japanese culture and society may serve to explain this situation. Traditionally, the physician-patient relationship in Japan is based on the patient's complete and unquestioning trust of the physician such that the physician acts to make health care decisions on behalf of the patient.
__To further complicate matters, while patients' families are informed of the incurable nature of the disease affecting their family member, patients themselves usually are not told of terminal diagnoses. Therefore, the patients often do not have the information necessary to articulate health care preferences in advance, should they wish to do so. A mixture of Shinto, Confucian, and Buddhist beliefs wherein death should not be hastened to avoid disturbing the harmony of the universe also muddle the issue, as does a commonly-held view that life and one's body are to be regarded as gifts from one's parents to be treated with traditional filial piety.
__The traditional Japanese mentality of "Amae", which is a sense of inter-dependence; turns the focus away from the individual and toward the family or socially related group (Doi, T. 1971). This almost certainly plays a role in limiting the appeal of the notion of advance directives.
__The authority given to the family in making decisions about organ donation is illustrative of the major role the family plays in medical decision making. Some people express their uneasiness about having documents relating to the end of life. They think that this serious event of ending-life should be dealt with in a more harmonious way, such as a "tacit agreement" or "Ishin-denshin" (heart to heart communication without words) among the patient, family members, and attending physician (Lebra 1976).
__Dr. Gen Ohi, in his book Terminal Care, discussed the difficulties he encountered in conducting a survey on death and dying issues in rural Japan. He commented that the majority of the participants were uneasy about the concept of a documented expression (Ohi 1988).
__There is a particularly strong concern among medical providers and their patients that a complicated legal intervention such as an advance directive would be inconsonant with life and death issues. This mentality is one of the most important socio-cultural factors that mitigate against advance directives, even though some people acknowledge that these documents will become increasingly necessary in the future.
__Do-Not-Resuscitate (DNR) orders provide an example of another kind of advance directive in Japan. According to recent data compiled in 1994, 96.7 percent of those surveyed answered that, depending on the situation, a DNR order was necessary. The idea of "dying with dignity" was cited as the main reason for having a DNR order. The unique finding of this survey is that 84.9 percent agreed that the patient's will is not indispensable. In other words, a patient's physician and family members would be granted the authority to make a decision. More specifically, 68.4 percent agreed to have a decision made by the attending physician, perhaps after consultation with other relevant physicians. This finding clearly shows the strong medical and professional orientation that impacts the decision to make a DNR order in Japan (Arai, T., et al 1994).

3.2. Legal Aspects

__Unlike the codes of Germany and several states in the United States, the Criminal Code of Japan (Law No. 45, April 24, 1907) has provisions related to assisted suicide (Jisatsu Hojyo), murder by request (Shokutaku Satsujin) and murder with consent (Doi Satsujin). They are classified as criminal offenses as follows.
__Article 202 (Participation in suicide): A person who instigates or assists another to commit suicide or kills another at the request or with the consent of the latter shall be punished with penal servitude or imprisonment for not less than six months nor more than seven years. This article has provided an enormously powerful justification for physicians to prolong life as long as possible. Physicians are considered to be experts in the care of patients, and therefore are usually permitted to ignore the patient's desire to be treated in a way that allows the natural ending of life. Instead of respecting such wishes, many physicians favor the provision of aggressive medical intervention to prolong life. For example, when my mother-in-law's 85-year-old mother was dying of colon cancer and suffering severe pain, my mother-in-law suggested to the attending physician that aggressive intervention be forgone. However, this suggestion was simply rejected by the physician, who stated that "my professional ethics can not accept such a proposal."
__However, if the physician him or herself determines on the basis of medical judgment that additional treatment would be futile, the physician is able to end the treatment. This is considered a justifiable act, according to Article 35 of The Criminal Code of Japan, which provides that, "No person shall be punished for an act done under law or ordinance or in the course of legitimate business." When considered in this context of Japanese Criminal Law, the reason for and aim of efforts to legalize advance directives may be properly understood as very important steps.
__There are several legal opinions regarding a patient's wish and/or autonomy to end his or her life peacefully and to reject treatment in the process of terminal care. The situation surrounding terminal care in Japan is gradually changing. However, I think that, particularly in our country with its article 202 (described above), the legal difference between the phrases "agree and act based on patient's rejection of treatment" and "assisting committing suicide" should be recognized. If we strictly apply article 202 to both situations, the person who acted will be prosecuted. However, in the particular clinical context of end-stage illness, the former case should be understood as a justifiable "non-doing" (Fusakui, which is a similar legal term to Unterlassung in German) because of the counter-benefits of relieving severe pain and honoring the patient's own intention to reject treatment.

IV. SOME UNIQUE ELEMENTS IN JAPANESE ADVANCE DIRECTIVES

__As I mentioned before, in Japan advanced directives are not legally binding documents. Rather, an advance directive is merely a private document expressing a person's wishes for future medical treatment and care at the end of life (JMA 1992). However, there have been some efforts among concerned individuals and organizations to make an "Advanced Directive Document" similar to the type that has been developed in some countries in Europe and the United States.
__I will discuss three different types of advance directives: 1) Songenshi no Sengen Sho (Declaration Document of Death with Dignity-Living Will), which is provided by the Japan Society for Dying with Dignity, 2) Shumatsuki Sengensho (Declaration for the End of Life Stage), which is provided by the Citizen's Group in Thinking of End of Life Stage, and 3) "Living Will-Proposal by Kyoto Women's University".
__Since 1976, the Japan Society for Dying with Dignity has made available a very general form that enables individuals to declare their desire to avoid futile medical treatment. The "Dying with Dignity Declaration" requests that medical technology not be used to artificially prolong life in irreversible or incurable situations, asks that effective pain reduction methods be used even though they may hasten death, and permits the withdrawing of life-sustaining technologies in the case of a persistent vegetative state of several months duration (see book appendix).
__As of November 1995, no legal mechanism exists to honor this declaration or any other "advance directive" in Japanese society. However, public awareness of the death with dignity movement is rapidly increasing, and as of August 1995 the number of memberships in the Japan Society for Dying with Dignity stands at 72,567.
__Another organization, called the "Citizen's Group in Thinking of Terminal Care" has become very active during the past five years. They issued another type of "advance directive", which attempted to simplify matters by providing a place for a check mark in front of each statement. There are some unique elements in this document that address "Truth Telling", "Vegetative State", and "Brain Death Situations". For example, sentence No. 1 says, "please tell to my family members as it is but don't tell me the truth clearly", while No. 2 states, "I do not want to be connected to a life sustaining machine continuously when I became PVS", and No. 4 offers a choice of "Brain dead situation as death or not". An opportunity to express one's wishes in terms of organ donation was also provided in the following sentences. Finally, this document has a place expressly designed for the designation of a surrogate decision maker, to be signed by the person who made the statement. This means that the statement has combined the characteristics of a "Living Will" and a "Durable Power of Attorney" in one document. Of course, similar to the JSDD's Living Will declaration, such a document is not legally binding in any way and need not be respected by the physician in charge. Naturally, however, these expressions of patient preference might have some influence, depending on the individual opinion of the physician (see book appendix).
__The Student Bioethics Study Group at Kyoto Women's University proposed a unique model document of advance directives, written from the perspective of a pregnant woman. Statement II, B. (a) says that, if a guardian for the unborn baby had previously been designated, the document specifying this should be retracted and the best medical treatment for continuation of pregnancy and delivery should be performed. This proposal also has statements that request the forgoing of life-sustaining technologies in the event of the onset of PVS, and also attempts to address the situation in which a mental disability would make a decision impossible. The statement says that in the case of an incurable disease in which death is imminent, hydration, nutrition, and cleaning of the body should be provided, however the mere prolongation of the dying process through the use of life-sustaining machines should be avoided.
__This proposed "Living Will" has suggested having the names of two physicians listed as witnesses to this document, as well as choices of physicians for making a diagnosis of "PVS" (see book appendix).

V. CASE DISCUSSION

__In addition to the efforts of the JSDD and other recent interest groups focusing on issues in death and dying, and the validity of the explicit expression of individual intention in advance directive documents, there are three important cases that serve to reflect the Japanese situation concerning advance directives and the experience of an extremely painful terminal stage of life due to chronic disease.

5.1. Rejection of the Suit Claiming Legal Validity of Living Will

__There is only one legal case relating to the legal validity of the living will that should be mentioned here.
__In 1980, Mr. Tobita, who was then the chairman of the Edogawa Machine Metal Industrial Cooperatives and a board member of the JSDD, field an action in the Tokyo District Court. He asked for a confirmation of the validity (Feststellungsklage) of an individual person's intention of "Dying with Dignity". He, as the plaintiff, quoted article 13 and 25 of the Japanese Constitution, which endorse the "pursuit of happiness" and the "right to live". Mr. Tobita insisted that the opportunity to experience pleasure, displeasure, pain, and non-pain has been guaranteed to all Japanese citizens by this fundamental constitutional law, and that, thus, a person has a right to choose a way of death according to his or her individual intention.
__For this reason he claimed that the state should confirm "the person's intention to express his or her wishes precisely as written in a document such as a living will, when the person is competent, not to suffer in death unnecessarily, and to reject futile treatment". The Tokyo District Court decided February 17th, 1982, that this case could not be accepted for ruling in the Court as it was not concrete, and could not be included in the category of "all kinds of legal conflicts" delineated by the Court Law, Article 3 section 1. Also, the court claimed that this case lacked the legally necessary conditions to be dealt with as a suit in the Court. The Court concluded that this case must be turned down (Zuruckweisung), by applying Article 202 of the Civil Procedure Code (Tokyo District Court 1982).
__This example of Case No. 1 shows that such a suit that seeks the confirmation of validity of personal choice in dying cannot be accepted by the court. This idea of dying with dignity according to an individual's value of life might be possible only through the legislation of laws supporting living wills in Japan.
__Questions about advance directives were raised in a concrete legal case in which a patient was dying painfully due to an incurable disease. The following two cases, Nos. 2 and 3, involve "oral directives", one made by the patient and the other by a close family member who seek the termination of treatment and an end to suffering through active euthanasia, performed by the patient's son in the first case and by the physician in charge in the latter case.

5.2. Legal Criteria for Active Euthanasia in Japan

__One of the most important Japanese legal precedents relating to the issue of death and dying has never been applied since it was set in 1962. The case is usually cited as the "Nagoya High Court Decision of 1962". In this case, a son killed his terminally ill father, was charged with "ascendant homicide", and was subsequently prosecuted for his act. In the Japanese legal system, ascendant homicide, or the killing of one's lineal ascendant or a lineal ascendant of one's spouse, is a more serious crime than ordinary homicide. The punishment for ascendant homicide carries a sentence of death or penal servitude for life, while the sentence for murder can be as little as three years. The standard sentence for cases of assisted suicide is six months to seven years. The particulars of the Nagoya case are as follows: the father, a farmer and head of a household, became completely paralyzed. Because of his very severe pain and suffering, exacerbated by frequent occurrences of hiccups, the father repeatedly expressed his wish to die, saying, "Please let me die, please let me go. I want to go to the other world."
__The physician informed the family that the farmer's situation was worsening and that his death would probably occur within ten days. The man's son, a kind person, thought that his last filial duty required him to save his father from his severe pain and suffering by killing him, based on his father's verbally articulated "directive". The son prepared milk mixed with an agricultural pesticide to which he had ready access at his home. The glass was given to the man by his wife who did not know its poisonous content, and the man died.
__In reaching its judgment, the court identified the following six conditions that must be fulfilled before one is legally permitted to end a suffering patient's life.

First, the patient's situation should be regarded as incurable with no hope of recovery, and death should be imminent; Second, the patient must be suffering from unbearable and severe pain that cannot be relieved; Third, the act of killing should be undertaken with the intention of alleviating the patient's pain; Fourth, the act should be done only if the patient him or herself makes an explicit request; Fifth, the euthanasia should be carried out by a physician, although if that is not possible, special situations shall be admitted for receiving some other person's assistance, and Sixth, the euthanasia must carried out using ethically acceptable methods (Nagoya High Court 1962).

__In this case, the Nagoya High Court ruled that, although the first four criteria had been met, the final two conditions had not. The son was sentenced to four years imprisonment with three years suspended. As mentioned earlier, the Japanese Criminal Code (JCC) provides for severe punishment, such as capital punishment or life imprisonment, for ascendant homicide; however, in this case, the Court believed that the son's desire to honor his filial duty and to follow his father's spoken "directives" was evident and warranted a lesser sentence.
__In the light of medical and technological advances, the ramifications of the Nagoya High Court decision have changed in many ways. Conditions once considered fatal can now be treated effectively or even cured. Better methods of pain control have been developed and new centers for palliative care have been developed (Kimura 1991a).
__The interpretation of the Nagoya criteria has been very strict. In the 33 years since the Nagoya Court decision, there have been only four cases brought before the court wherein a family member acted to end the life of a patient suffering grave pain.
__All of these cases were prosecuted as criminal cases and none were found to be in accordance with the six requirements laid out by the Nagoya High Court, but the defendants all received lesser sentence: 1. Homicide case of a wife suffering from a chronic disease of the autonomic nervous system, severe hip gout, and tuberculosis (Kagoshima District Court Decision 1975); defendant was sentenced to one year imprisonment suspended for two years on the criminal charge of "murder with consent"; 2. Homicide case of a mother suffering from a cerebral hemorrhage (Kobe District Court 1975); defendant was sentenced to three years imprisonment suspended for four years on the criminal charge of "homicide"; 3. Homicide case of a wife with painful stomach cancer (Osaka District Court Decision 1977); defendant was sentenced to one year imprisonment suspended for two years on the criminal charge of "murder with consent"; 4. Homicide case of a wife having severe pain due to sarcoma (Kochi District Court Decision 1990); defendant was sentenced to three years imprisonment suspended for one year on the criminal charge of "murder with consent".
__Though the Nagoya High Court ruling established the legal criteria for active euthanasia and specifically confirmed the importance of the individual wish of the patient to have his or her life terminated, all three district courts seem reluctant to apply these conditions fully. An explanation for this phenomenon may be the court's unwillingness to accept the concept of active euthanasia.
__On April 4, 1973, in another case of ascendant homicide relevant to Case No. 1 as presented above, there was a drastic change in this attitude of reluctance. In this case, the Supreme Court ruled that article 200 of the Japanese Criminal Code, which entails a heavy criminal charge in cases of ascendant homicide, is an illegal and unfair clause contrary to the equal treatment clause of the Japanese Constitution. "If the sentence is extremely heavy and if there is no justifiable ground for it, this discriminatory provision is very much unreasonable to be applied. Therefore, it is against Article 14, section 1 of the Japanese Constitution and it is invalid". This ruling indicates a positive change in the established legal value of the Criminal Code, based on a cultural ethos that is significantly influenced by a Confucian ideology of filial piety. In the enforcement of new and more contemporary official phrasing and modification of the Criminal Code of Japan, Article 200 was completely eliminated on June 1, 1995.

5.3. A Physician's Active Ending of a Patient's Life by Family Request

__The most recent case in which a physician actively ended the life of a patient happened in 1991 at Tokai University Hospital. The case attracted great media attention because it involved a physician who ended the life of a patient based on the request of a family member. According to the physician, the patient's son asked the physician to alleviate his father's suffering. However, when questioned later, the son stated that he had not meant the ending of his father's life. At the time of the alleged request, the patient was hospitalized with an incurable and terminal condition, and was already comatose when the physician administered an injection of potassium chloride. Due to the family's denial that they asked for help to end the patient's life, the physician was accused of murder and dismissed from the hospital. On March 28th, 1995, the Yokohama District Court sentenced the physician to two years imprisonment with a stay of execution of two additional years. This ruling is significant for its clear statement of the principle of individual autonomy based on the patient's own intention and its establishment of a limit on a physician's immunity for failing to treat those patients whose treatment is deemed medically futile. According to this ruling, when making a decision to withhold a treatment, it is clearly necessary to have a confirmed statement of the patient's intention to stop treatment. The decision goes on to note that, although there is at present a general lack of existence of these kinds of clear patient statements, in the future there will be widespread acceptance of living wills among the public. The presence of a patient's advance expression of will could serve as a verification that the physician indeed made a judgment by taking into account the patient's own wishes when decisions to withhold treatment are made.
__Moreover, if the patient has communicated openly enough with family members about his or her view of life, character, and values, the family will be able to make a conjectural decision to end his or her life in a natural way (without aggressive overtreatment). By endorsing the family's ability to presume a patient's wishes, this ruling has set a sort of standard for allowing indirect euthanasia provided that the physician considers it to be an appropriate medical procedure for terminal care in the clinical context. In such cases, the withdrawal of treatment could be justified. However, in the case of positive or direct euthanasia, the ruling does not endorse familial decision making based on the presumed will of the patient. The following four points should be taken into account in making the decision: 1) the patient is suffering with intolerable, severe physical pain caused by disease, 2) the patient's death is imminent, 3) there is no possible medical treatment that can ease the pain, and 4) the patient has clearly agreed to the shortening of his or her life (Yokohama District Court, 1995).
__Although this is not a case only focusing on patient's advance directive, public opinion is rather supportive of the defendant physician in recognizing the family member's oral "directive" to ease the life of the dying patient. As the involvement of family members in making decisions on behalf of the patient is generally accepted behavior, the inter-relationship with patient, family, and physician is very important in our Japanese social context and human relations (Kimura 1991c).
__However, one must be very careful in making any sort of surrogate decision for a family member, even though the process of dying is regarded not as an individual event but as a family event in the Japanese culture.

VI. FAMILY ROLE IN MEDICAL DECISION-MAKING

__It is not clear whether the situation would be different in the Tokai Hospital Case if the family declared that they had asked the physician to assist in the euthanasia of their father. If this were the case, the first through third, fifth, and sixth conditions of the Nagoya Court criteria for permissible euthanasia would have been fulfilled, although it is not clear if the patient or only his family made the request for death.
__The traditional importance and authority of the family in medical decision-making is illuminated by the fact that they, and not the patient, are informed of a terminal diagnosis. The family's role has been confirmed in the currently ongoing debate about brain death criteria and organ transplantation. The draft of legislation and additional guidelines issued by the Inter-party Council on Brain Death and Transplantation in December 1993 cited a number of situations wherein the family may sontaku, or "make a guess as to some other person's internal mind to allow the pronouncement of brain death and permit organ donation even in the absence of any clear expression of wishes in that regard by the deceased person." The scope of family authority in medical decision making is highlighted again by the fact that consent from the family is required concurrently to consent from a potential donor when the individual's desire to donate kidneys is registered at one of the regional kidney banks.
__Cases of comatose and terminally ill patients are rarely brought to the court, as these problems are usually regarded as medical and clinical cases to be confined to the authority of the medical profession. A very strong sense of the rights associated with professional discretion is confirmed in many legal cases. In Japan, those in the field of medicine want to practice medicine and conduct research without intervention from any other profession, such as law, religion, or economics.
__Traditionally, the paternalistic behavior of physicians has been accepted without question. The recommendations regarding medical treatment made by physicians on behalf of comatose or terminally ill patients are accepted unquestionably by the family members of these patients. The traditional practice of not explaining to terminally ill people the nature of their illness, on the grounds that this is the kindest course of action, often results in surrogate decision making by the family on behalf of the patient, as mentioned before. Some movement toward truth-telling to the patient is gradually occurring, and the notion of informed consent has been widely publicized in clinical settings (Morikawa 1994).

VII. REVIEW OF THE LITERATURE

__There have been several important and influential books and documents published in recent years. I will discuss a book by Professor Koichi Bai, an official report of the Japanese Medical Association's Bioethics Council, and the final report of the special committee on Death and Medical Services, Japan Science Council.

7.1. Professor Koichi Bai's Book

__One of the most important Japanese books in this area of study was written by Professor Koichi Bai. Published in 1990, this book was entitled Seimei Iji Chiryo no Hori to Rinri (Legal Reasoning and the Ethics of Life Sustaining Therapy). Even though the book focuses mainly on the analysis of cases and the situation in the United States concerning treatment at the end of life, Section 4, entitled "Terminal Care and Law", does comment on relevant issues in Japan. Professor Bai points out several elements in the process of making the decision to forgo a patient's treatment: first, a confirmation of the patient's real desire; second, the importance of informed consent; third, an assessment of the patient's competency; fourth, continued treatment for the prolongation of life if the patient's desire is not clear; fifth, a respect for a patient's wish to change hospitals due to a difference in values between the physician and patient; and sixth, the necessity of care and the continuation of minimum treatment even if life-sustaining technology is terminated. Professor Bai's book is unique in its legal analysis and overview of the implications for advance directives in Japan (Bai 1990). Other resource books are mentioned in the Japanese section of the annotated bibliography at the end of this volume.

7.2. An Official Report of ____the Japanese Medical Association's Bioethics Council

__The title of the report issued by the Japanese Medical Association's Bioethics Council on March 18, 1992 is, "How a physician should handle the treatment of terminal patients in the final stage" (JMA, 1992). An official statement in 1978 by the JMA stated, "When a doctor is held responsible for disconnecting a life-prolonging device, the existence of a Living Will is significant as a mitigating factor only, and nothing more." After 14 years, the JMA changed its position, saying, "Even without the force of law, the attending physician will not be held responsible for a patient's death as a result of withdrawal of life-prolonging treatment." This did not state that the physician should follow any advance directive document prepared by a patient or presented by a family member on behalf of the patient. But this sentence implies an acceptance of the patient's wish not to have life-prolonging treatment, and an assertion that the physician will not be blamed for carrying out whatever action is in accordance with those wishes. It goes even further in affirming the patient's wishes, stating that, "Still, even if the patient does not have a signed document, a clear and unequivocal verbal statement expressing his/her wishes should be respected", and "In cases where the patient is unable to express his/her wishes, the question arises as to the extent to which family or friends may act on the patient's behalf. In principle, however, it is the patient's wishes [not those of others] that should be adhered to. In cases where there is reliable testimony from friends or family with respect to the patient's wishes, such testimony may be taken as an accurate reflection of the patient's wishes [and treatment undertaken accordingly]."
__However, the following statement is problematic: "On the basis of connections with the Civil Code, for anyone over the age of 15, some declaration written by that person is, in essence, required. Further, in cases where the person is deemed to possess the capacity to make a decision, there may be no objection to the decisions of a person under the age of 15." The relevant Civil Code Article 961 states that, "Persons who have attained the age of 15 are entitled to write a will."
__These statement may appear acceptable and practical in a clinical setting. However, I think the underlying message is one of avoidance of a clearly documented legal framework to which physicians must adhere. The intention seems to have been to retain, in the tradition of paternalism, medical professional hegemony in order to exclude legal control and legislation of living will laws, which are seen as a source of complications.

7.3. The Japan Science Council's Final Report on Death With Dignity

__The Japan Science Council's final report on Death with Dignity was most recently issued on May 26th, 1994. This report caused a heated debate among professionals already in the midst of the ongoing Tokai University Hospital case mentioned before. The JSC is a sort of house of representatives sponsored by the Japanese government that consists of various eminent scholars elected by national academic societies in the fields of humanities, social sciences, natural sciences, medical sciences, etc. In this report, the words "death with dignity" mean a withdrawal of life-prolonging treatment. The report confirms that in the terminal stage, the patient's wishes should be respected based on the patient's autonomous choice. The importance of the patient's intention is particularly stressed. The treatment plan, according to this report, should be based on "Advance Directives such as Living Wills", thus respecting the patient's own choice for deciding when to withdrawal life-prolonging treatment, including hydration and nutrition (JSC, 1994).
__However, the report concludes by stating, "We have to consider seriously whether we need to have legislation endorsing Living Wills or not". This report points out the possible risk of abuse and the difficulties in applying such a law. In conclusion, this report articulates that the withdrawal of life-prolonging treatment could be justifiable under specified conditions, and states that appropriate and cautious application of this law to actual cases should be performed.
__Once again we are faced with a repeated unwillingness to legalize advance directives, and an avoidance of legal support in this kind of discussion. In addition, public policy debates regarding how life and death decisions should be handled in medical and clinical settings have been neglected (Kimura 1994).

VIII. CONCLUDING REMARKS

__There is a widening gap between the position of medical professionals and the lay public on issues in terminal care. The general public is relatively positive in their support of the actions of the accused physician at Tokai University; however, the society of medical professionals has a very negative view of such actions in the case of terminally ill patients. It is almost impossible to legalize living wills in Japan. If any advance directives are to be developed in Japan in the future, they will need to be based on a familial type of directive. It might be possible for individual family members to make different decisions. However, the individual family member's idea should be shared with another family member; otherwise, the individual wish cannot be respected and followed. It might be called a Family Unit Advance Directive. This type of advance directive might have a more practical effect for future family preparation for life and death issues.
__For many years, issues relating to death have not been openly discussed in Japan, as it is considered a "taboo" topic (Kimura 1991c). However, in considering the reality of advanced medical technology and its impact on medical decision making, an opinion poll conducted by the Ministry of Health and Welfare in 1993 revealed that around 80 percent of all Japanese citizens are concerned about the issues relating to death with dignity, euthanasia, and terminal care. Conferences, research efforts, and educational programs focusing on death and dying are now very popular. Dr. Alfons Deeken's pioneering educational program at Sophia University on preparing for death had its 13-year anniversary of activities in 1995. International dialogue and joint research programs on death and dying issues are taking place between various institutions around the world, such as the Bioethics Project of Advanced Research Center for Human Sciences at Waseda University, and The Kennedy Institute of Ethics at Georgetown University (Waseda Univ., 1992). In working on this Volkswagen Project and comparing advance directives in Germany, the United States, and Japan, we have learned a great deal about cultural differences and similarities.
__Finally, I will briefly discuss a survey I conducted at Waseda University with 473 students in a Bioethics class. Approximately 70 percent of students responded "no" to the statement "I want to live as long as possible if I am permanently unconscious" and 77 percent wanted their own values to govern treatment decisions. Approximately 87 percent responded "yes" to the statement "I want to be without pain", while around 87 percent of students expressed a desire to have a comfortable dying process (Appendix V).
__One might speculate that some of these data might elicit similar responses from students of other countries. We now share common values relating to issues such as the ability to understand the limits of life and death, the capability to alleviate pain and to foster a comfortable dying process, and the right to govern treatment decisions based on our own values. This commonality of values illustrates the enormous importance that advance directives have among the young generation of Japan.

APPENDIX / REFERENCES