From: Robert B. Leflar
rbleflar@mercury.uark.edu
The following is an abstract of an article that will appear in the Houston
Law Review in mid- to late April.
TITLE: Informed Consent and Patients' Rights in Japan
AUTHOR: Robert B Leflar
Associate Professor
University of Arkansas School of Law
Fayetteville AR 72701 USA
E-mail: rbleflar@mercury.uark.edu
CITATION: Houston Law Review, vol. 33, no. 1, pp. 1-112 (1996)
ABSTRACT:
This article analyzes the development of the concept of informed
consent in the context of the culture and economics of Japanese
medicine, and locates that development within the framework of the
nation's civil law system. The article first sketches the cultural
foundations of medical paternalism in Japan; explores the economic
incentives (many of them administratively directed) that have
sustained physicians' traditional dominant roles; and describes the
judiciary's hesitancy to challenge physicians' professional
discretion. The article then delineates the forces testing the
paternalist model: the undermining of physicians' personal knowledge
of their patients that accompanies the shift from neighborhood clinic
to high-tech hospital medicine; the increasing sophistication of
consumers of medical services and their appetite for medical
information; the rise of medical quality control issues and patients'
rights groups; and the influence of the movement for "transparency,"
or openness in decisionmaking, in Japanese society as a whole.
In particular, the article stresses the importance of two critical
developments in focusing attention on informed consent: the debate
over brain death and organ transplantation, and the enforcement by
the Ministry of Health & Welfare of "good clinical practice" rules
governing clinical trials of investigational drugs. The article
interprets the response of the medical establishment as a clear-
headed recognition of the inevitability of the acceptance of informed
consent and as a strategic attempt to control its content and
direction in order to preserve professional autonomy and authority.
Finally, the article suggests the possibility that many physicians
may adopt information-sharing practices as a means of obtaining an
advantage in the competition for patients.
Phone (501) 575-2709 or 443-5121
Fax (501) 575-2053
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