A Decision for Choice

NONE other than the most illustrious Personage in all the universe endorses informed choice. He is our Creator. Possessing unlimited knowledge of man’s needs, he generously gives instruction, warning, and guidance on the wise course to take. Still, he does not disregard the free will with which he endowed his intelligent creatures. His prophet Moses reflected God’s outlook: “I have put life and death before you, the blessing and the malediction; and you must choose life in order that you may keep alive, you and your offspring.”—Deuteronomy 30:19.

This principle affects the field of medicine. The concept of informed choice, or informed consent, is gradually gaining acceptance in Japan and other lands where it was not so common in the past. Dr. Michitaro Nakamura offered this description of informed consent: “It is the idea that the doctor explains to the patient in easily understood language the illness, the prognosis, the method of treatment, and possible side effects, respecting the patient’s right to decide for himself the method of treatment.”—Japan Medical Journal.

For years, doctors in Japan have presented various reasons for resisting this way of treating patients, and the courts have tended to defer to medical custom. Thus, it was a landmark when a decision for informed choice was handed down by Chief Judge Takeo Inaba of the Tokyo High Court on February 9, 1998. What was that decision, and what was the issue that brought the case to the courts?

Back in July 1992, 63-year-old Misae Takeda, one of Jehovah’s Witnesses, came in contact with the Institute of Medical Science Hospital, University of Tokyo. She had been diagnosed with a malignant tumor of the liver and was in need of surgery. Keenly wanting to obey the Biblical injunction against the misuse of blood, she made clear to her physicians her desire to receive only nonblood treatment. (Genesis 9:3, 4; Acts 15:29) The physicians accepted a release from liability form, which absolved them and the hospital of any liability resulting from her decision. They assured her that they would comply.

However, after the surgery, and while Misae was still under sedation, she was given a blood transfusion—directly contrary to her clearly expressed wishes. Efforts to keep the unauthorized transfusion secret were exposed when a hospital employee apparently leaked the matter to a news reporter. As you can understand, this sincere Christian woman was devastated when she learned of the unauthorized transfusion. She had trusted the medical staff, believing that they would keep their word and respect her religious convictions. Because of the emotional anguish she suffered over this gross violation of the doctor/patient relationship and in hopes of establishing a precedent that would spare others from similar medical mistreatment, she took the matter to court.

Public Order and Morals

Three judges of the Tokyo District Court heard the case and ruled in favor of the physicians and, thus, against the right of informed consent. In their decision, handed down on March 12, 1997, they stated that any attempt to make a contract for absolute nonblood treatment was invalid. Their reasoning was that it would be in violation of kojo ryozoku,a or societal standards, for a physician to enter into a special agreement not to administer blood even if a critical situation developed. Their opinion was that a doctor’s chief obligation is to save life in the best way he can, so such a contract would be invalid from the start, regardless of the patient’s religious convictions. They ruled that in the final analysis, a physician’s professional opinion should take precedence over any advance medical request that a patient might make.

Furthermore, the judges stated that for the same reasons, while expected to explain the basic procedure, effects, and hazards of a proposed operation, a physician “could leave unsaid whether he intended to administer blood or not.” Their judgment was: “It cannot be determined to be unlawful nor improper that the doctors as Defendants understood the Plaintiff’s wishes not to accept blood transfusions under any circumstances and acted as if they would honor her wishes and thus caused her to accept the operation in question.” The thinking was that if the physicians had acted otherwise, the patient might have refused surgery and left the hospital.

That court ruling shocked and dismayed advocates of informed consent. In discussing the Takeda case decision and implications for informed consent in Japan, Professor Takao Yamada, a leading authority on civil law, wrote: “If the thinking of this decision is permitted to stand, blood transfusion refusal and the legal principle of informed consent will become a candle flickering in the wind.” (Legal journal Hogaku Kyoshitsu) With strong words he condemned the forced blood transfusion as “a gross violation of trust, similar to a sneak attack.” Professor Yamada added that such trust-destroying action should “absolutely never be permitted.”

Misae’s modest nature made it difficult for her to be thrust into the limelight. But realizing that she could have a share in defending Jehovah’s name and righteous standards concerning the sanctity of blood, she was determined to do her part. She wrote to her legal counsel: “I am no more than dust, even less. I wonder why such an incompetent person like me is used. But when I seek to do just what Jehovah—the one who can make the stones cry out—says, he will give me power.” (Matthew 10:18; Luke 19:40) On the witness stand during that trial, she described in a trembling voice the emotional trauma she experienced as a result of the betrayal. “I felt violated, like a woman who had been raped.” Her testimony left few dry eyes among those in the courtroom that day.

Surprise Encouragement

In the face of the District Court decision, the case was immediately appealed to the High Court. The opening arguments in the appellate court began in July 1997, and a now pale but determined Misae was there in a wheelchair. The cancer had recurred, and she was getting weaker. Misae was greatly encouraged when the chief judge, in an unusual move, spelled out the direction that the court intended to take. He made it clear that the appeal court did not agree with the finding of the lower court—that a physician had the right to ignore the patient’s wishes, acting as if he was going to comply but being secretly determined to do something else. The chief judge said that the court would not support the paternalistic ethic of “Shirashimu bekarazu, yorashimu beshi,”b meaning, “Keep them ignorant and dependent” on medicine. Misae later said: “I am very happy to hear the judge’s fair comment, which is entirely different from the previous ruling by the District Court.” She added: “This is what I have been praying to Jehovah for.”

The following month Misae passed away, surrounded by a loving family and the medical staff of a different hospital, where her sincere convictions were understood and respected. Though greatly saddened by her death, her son, Masami, and other family members were determined to see the case to its completion, in harmony with her wishes.

The Decision

Finally, on February 9, 1998, the three judges of the High Court handed down their ruling, reversing the decision of the lower court. The small courtroom was filled with reporters, academics, and others who had faithfully followed the trial. Major newspapers and television stations reported on the decision. Some of the headlines read: “Court: Patients Can Refuse Treatment”; “High Court: Transfusion a Rights Violation”; “Doctor Who Performed Forced Blood Transfusion Loses in Court”; and “Jehovah’s Witness Gets Damages for Transfusion.”

Reports on the decision were accurate and overwhelmingly favorable. The Daily Yomiuri reported: “Judge Takeo Inaba said it was improper for doctors to perform procedures that a patient had refused.” It also stated clearly: “The doctors who gave [the blood transfusion] deprived her of the chance to choose her treatment.”

The Asahi Shimbun pointed out that while in this case the court felt there was insufficient evidence that a contract existed in which both parties agreed that blood would not be used even in a life-endangering situation, the judges disagreed with the lower court on the legality of such contract: “If there is a well-advised agreement between the parties concerned that a blood transfusion should not be given under any circumstances, this Court does not deem it against public order and, hence, invalid.” Further, this newspaper pointed out the judges’ view that “every human being is doomed to die someday, and the process toward that moment of death can be decided by each individual.”

Actually, Jehovah’s Witnesses have researched this matter and are convinced that they are choosing the best way to live. That includes rejecting the known hazards of blood transfusions and instead accepting nonblood procedures that are widely used in many lands and that are in harmony with God’s law. (Acts 21:25) A well-known Japanese professor of constitutional law pointed out: “In reality, the refusing of [the blood transfusion] treatment in question is not a matter of choosing ‘how to die’ but, rather, that of how to live.”

The decision by the High Court should alert physicians that their discretionary rights are not as broad as some have thought. And it should result in many more hospitals’ establishing ethical guidelines. While this court ruling has been generally accepted and is encouraging to patients, who have had little voice in their treatment, not all parties have wholeheartedly embraced it. The state-run hospital and the three physicians have appealed the case to the Supreme Court. So we must wait to see whether Japan’s highest court will also uphold patients’ rights, as does the Sovereign of the universe.

[Footnotes]