Access to Medical Information in Penal Facilities: A Recent Development in Japan

By Mr. Teppei Ono

For inmates suffering from an illness, life in prison can be extremely harsh. No matter how many times they ask to see medical staff, they may not be able to get the medical treatment they need. Even if a medical consultation is available, it will be monitored by prison guards. No detailed explanation of their illness – not to mention their medical records – is given to the inmates themselves. This has long been the daily scene for health care in Japanese prisons. However, a recent court judgment may change this deadlocked practice. A legal group acting for a detainee including Ms. Tomoko Uraki, who studied at the Essex Human Rights Centre from 2013 to 2014 under the Memorandum of Understanding (MoU) with the Japan Federation of Bar Associations (JFBA), has won a ground-breaking decision.

The Japanese Supreme Court handed down its decision on 15 June 2021, allowing the detainee’s request for the disclosure of his medical records. Throughout the history of the Japanese correctional services, the government has never accepted inmates’ requests for the disclosure of the medical records kept by the penal institutions, even after disclosure became an established practice among hospitals in the outside community. The government explains that this is because if such information is disclosed, it could be used by a third party to check whether an individual has a criminal record, which could hamper ex-offenders’ reintegration into society. For example, employers may require all employees – whether or not they admit to having a criminal record – to seek disclosure of medical records from penal institutions. If information is disclosed, the employer would find out that the individual actually has a criminal record. For fear of this abstract risk of abuse, the government has continued to reject the disclosure of the information. Another rationale behind this policy was that the Personal Information Protection Act, which provides for the disclosure of personal information including medical records, exempts ‘personal information relating to the decision in a criminal case’ and ‘execution of a punishment’. When disclosure requests are made, the Correctional Bureau always cites this exemption clause, stating that the Act does not apply to medical records in penal institutions as these records fall under ‘personal information relating to the decision in a criminal case’ or those regarding ‘execution of punishment’. Inmates who wish to have their medical records disclosed, therefore, have had no choice but to apply to the court for the preservation of evidence, by showing that there is a risk of their records being manipulated. The obstinate practice of refusing disclosure has severely hampered inmates’ access to their medical information.

In the present case, the Supreme Court declared that medical records stored in penal institutions should be subject to disclosure under the Personal Information Protection Act, holding that the exemption clause does not apply. Before the current Act was brought into force, the law clearly excluded medical records from the scope of disclosure. However, on the basis of growing awareness of the principles of informed consent for medical treatment, the former law was amended in 2003, to abolish the clause that excluded medical records from disclosure. Noting that medical care provided in penal institutions is no different in its nature from that provided in the community in general, the court held that the amendment allowed inmates to make requests for disclosure of their medical records, as was possible in society in general. The Presiding Judge Katsuya Uga further elaborated on this in his concurring opinion, stating that access for inmates to their medical records has become a global standard. He mentioned various international documents, including Principle 26 of the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, Rule 26.1 of the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules) and the World Medical Association Declaration of Lisbon on the Rights of Patient, all of which show that inmates have a right to access their medical information. He also referred to the words of Professor Andrew Coyle that ‘any medical judgements and treatments will be based on the needs of the individual prisoner and not on the needs of the administration’. Drawing on these international documents, the presiding judge concluded that access to medical records should be guaranteed in the same way as it is in the outside community.

The Supreme Court’s decision will lead to a significant improvement in inmates’ access to medical information. The majority opinion, which reaffirmed that the medical care provided in penal institutions should not be different in its nature from that provided in the general community, will have a positive impact on correctional health care. Additionally, it is worth noting that the Supreme Court mentioned many international documents in its decision, even in the concurring opinion. The JFBA has released a presidential statement strongly supporting the Supreme Court decision. It is to be hoped that this court decision will lead to progress in reforming correctional health care in Japan.

Mr. Teppei ONO is an Attorney at Law, Secretary General of Center for Prisoners’ Rights Japan, LL.M., University of Essex, J.D., Chuo Law School

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