保健医療科学

2023

Vol.72 No.1 p.22－30

Topics: Recent topics in public health in Japan 2023

＜ Review ＞
Issues in end-of-life care and organizing and prospecting ethical and legal
issues of Voluntary Stopping of Eating and Drinking (VSED) in JapanYUKAWA Keiko 1), MATSUSHIGE Takuya 2)
1)
2)

Department of Policy and Technical Assessment, National Institute of Public Health
Department of Health and Welfare Services, National Institute of Public Health

Abstract
With the world’s aging population and the advent of a “super-aged, multi-death society” in which approximately 1.3 million people die each year, interest in end-of-life care is growing. Many academic societies
have developed guidelines on how end-of-life care should be provided. In 2018, the Ministry of Health,Labour and Welfare revised its guidelines on end-of-life care for the first time in 11 years. The public has
become increasingly interested in how to end one’s own life, as in “end-of-life” activities, and there is a
growing discussion about “desirable ways to die” and the corresponding medical treatment. Considerations
regarding the kind of end-of-life care required and how medical and welfare professionals should approachpatients and their families have emerged. Advances in medical technology have made it possible to prolong
patients’ lives; however, it is necessary to determine how we should respond when patients do not wish to
prolong their lives. In such cases, options such as “euthanasia,” “death with dignity,” and “physician-assisted
suicide” are available. However, there is conflict between the patient’s preferred choice of dying (patientdecision-making) and the medical professionals required to treat the patient.
Therefore, this paper summarizes the decisions made by medical professionals in cases in which ventilators and life-prolonging treatments were withheld or discontinued to respect the decisions of terminally illpatients and considers them in the context of legal arguments.
Japan is less advanced than other countries with regard to Voluntary Stopping of Eating and Drinking(VSED) at the end-of-life. Therefore, we will analyze these issues according to ethics, medical practice, andlegislation and discuss how to advance knowledge about VSED in Japan, develop laws and guidelines, andformulate a code of ethics.
keywords: terminal medical treatment, law, ethics, voluntary stopping of eating and drinking, withdrawing
life-sustaining treatment(accepted for publication, December 22, 2022)

I. Introduction: Issues in End-of-Life Care
Interest in end-of-life care is growing, and various organizations and academic societies have begun to address
the state of end-of-life care in their recommendations andguidelines [1-5]. In March 2018, the Ministry of Health, Labour and Welfare revised its guidelines for the first time in
11 years [6]. The public is becoming increasingly interested

in “end-of-life” options, and there is a growing debate about“desirable ways to die” and the corresponding medical care.
In recent years, medical professionals have taken the initiative in developing “advance care planning).” It involves
discussions with the patient and family members on the policies of medical treatment and care for the end-of-life stage,
as well as how the patient would like to live; Japan has begun to adopt this approach. Advances in medical technology

Corresponding author: YUKAWA Keiko
2-3-6 Minami, Wako, Saitama 351-0197, Japan.
Tel: 048-458-6311
yukawa.k.aa@niph.go.jp

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J. Natl. Inst. Public Health, 72 (1) : 2023

Issues in end-of-life care and organizing and prospecting ethical and legal issues of Voluntary Stopping of Eating and Drinking (VSED) in Japan
have made it possible to prolong patients’ lives; however, it
is important to determine how we respond when patients
do not wish to prolong their lives. End-of-life care involves
various issues for patients and their families and medical
professionals [7,8].
This paper reviews end-of-life care and analyzes the laws
and guidelines in other countries to use the associated ethicalissues as a basis for developing a code of ethics for Voluntary
Stopping of Eating and Drinking (VSED) in Japan. Additionally, we present a system aimed at eliminating VSED-related
issues among people in home, palliative, and terminal care.

II. End-of-Life Care and Criminal Law
1. Judicial precedents on euthanasia, death with dignity, and end-of-life care
We describe a case in which a patient insists on exercising his or her right to informed refusal and a physician respects their wishes and takes steps to shorten the patient’s
life. It is important to examine which requirements must be
met to prevent illegality and medical professionals from being held criminally liable, even if the constitutive elementsof murder or consensual homicide crimes are applicable.
Table 1 displays a selection of notable events. In Japan, theSpecial Committee on Death and Medical Care of the Science Council of Japan published a report in May 1994 (“Report of the Special Committee on Death and Medical Care
– On Death with Dignity”), in which (1) the significanceof discontinuation of life-prolonging medical care, (2) conditions for discontinuation of life-prolonging medical care,and (3) contents and scope of life-prolonging medical care
subject to refusal were established. The following year, in
the “Tokai University Euthanasia Case” decision, the court
expressed its opinion on the requirements for permissible
active euthanasia and discontinuation of medical treatment
for terminally ill patients [9]. However, cases in which physicians were charged with murder occurred, including theHaboro Hospital, Imizu Municipal Hospital, and Kawasaki
Kyodo Hospital cases [10,11], and in all cases in which they
were indicted, the convictions were confirmed.
2. Patient’s right to self-determination
The Constitution of Japan stipulates “fundamental humanrights” in Article 97, and Article 13 states that “All of thepeople shall be respected as individuals. Their right to life,
liberty, and the pursuit of happiness shall, to the extent thatit does not interfere with the public welfare, be the supremeconsideration in legislation and in other governmental affairs. ” and stipulates the right to self-determination and theright to the pursuit of happiness. The right to respect for
the individual and the pursuit of happiness is considered toinclude “the freedom to decide the disposition of one’s own
life (refusal of medical treatment, death with dignity, etc.)”[12]. Regarding the patient’s right to self-determination,
the “Jehovah’s Witnesses” nonconsensual blood transfusioncase in 1992 recognized the “right to refuse transfusion”
based on the right to self-determination. This is a precedent of the “right to refuse treatment,” which allows apatient to refuse even medically effective treatment in theabsence of his or her consent. In the field of medical care,
there is disagreement between “self-determination” when apatient does not wish to undergo life-prolonging treatment
and medical personnel who recognize their duty to treat thepatient. Although advance instructions or a living will would
be helpful regarding the patient’s true decisions, it is necessary to confirm this decision and the opinions of family
members, caregivers, and others who are familiar with thepatient’s values.
3. Laws on medical practitioners
Article 19 of the Medical Practitioners Law stipulates
that “No medical practitioner who engages in medical
practice may refuse any request for medical examination
or treatment without legitimate grounds.” The Medical
Service Law also stipulates the duty to attend to patients.
Furthermore, the Medical Care act stipulates the basic principles of medical care in Article 1-2 and provides informed
consent guidelines for medical personnel in Article 1-4-2.
When discontinuing medical treatment, it is necessary toconsider the relationship with criminal law [13].
Article 1-2 “Medical care is to be provided in accordance with the physical and mental state of the medicalcare recipient, based on a relationship of trust between thephysician, dentist, pharmacist, nurse, or other medical care
professional and the medical care recipient, in a way which
respects life and ensures the dignity of the individual, andnot only the medical treatment, but including measures toprevent illness and rehabilitation measures must also be ofhigh quality and well-suited. ”
Article 1-4-2 states “In providing medical care, a physician,dentist, pharmacist, nurse or other medical care professionalmust give proper explanations and endeavor to foster understanding in medical care recipients.”
4. The process by which a crime is committed under
the criminal law in JapanThe general process by which a crime is or is not committed under the criminal law is as follows (Figure 1 andAppendix).
The requirements for crimes that are the object of punishment are stipulated in the text of the law (the principles
of criminal law) [14]. For example, the act that constitutes

J. Natl. Inst. Public Health, 72 (1) : 2023

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24

Discontinuation oftreatment
Active euthanasia(focus was on theformer)Treatment
discontinued

Treatment
discontinued

Kawasaki Kyodo
Hospital(Kanagawa)

Hokkaido Haboro
Hospital(Hokkaido)

Imizu Municipal
Hospital(Toyama)

J. Natl. Inst. Public Health, 72 (1) : 2023―
2019.11.

A patient choked on his food and was placed on a ventilator after being resuscitated via emergency medical treatment, but his recovery was not expected. The
Ethics Committee decided to discontinue life-prolonging treatment, including
ventilators, at the request of the patient’s family and in response to the patient’s
written request, “If I cannot be revived, do not prolong my life.” However, thetreatment was not discontinued because the prefectural government opined that‘there were no national guidelines and it was too early to do so,’ but the patientdied without discontinuing his treatment.”
A patient with amyotrophic lateral sclerosis submitted a request to be taken off
the ventilator when he could no longer communicate due to the progression of his
disease. The Ethics Committee recommended that the hospital director respect
the patient’s wishes. However, the hospital director showed reluctance to remove
the ventilator, saying, “Under the current law, there is a risk of arrest (for murder,etc.) if the ventilator is removed.”Two doctors who were asked to euthanize a female patient with ALS (amyo- Two doctors were arrested in July 2020 on suspicion oftrophic lateral sclerosis) killed the patient by injecting drugs into the patient’s commissioned murder and charged in August. As of the end
body through the gastric fistula. After doctors left the patient’s home, the patient of 2022, it is still at the stage of collecting evidence, andcourt proceedings will be held in the future.
stopped breathing and was pronounced dead at the hospital.

An 88-year-old woman was put on a ventilator after emergency surgery for an
Sent to court on suspicion of murder (did not seek criminal
intracerebral hemorrhage. When the woman became brain dead, the doctor repunishment) 2007.1. → No prosecution 2007.12.
moved the ventilator leading to her death (cardiac arrest).

a) Active euthanasia is shown in bold to distinguish it from Treatment discontinued.

Kyoto ALS patientcommissioned
murder(Kyoto)Treatment
discontinued

Kameda General
Hospital(Chiba)2008.4.

Treatment was stopped 2006.10.

2006.2.

Tajimi Hospital(Gifu)

Wakayama
Prefectural Medical
Treatment
University Hospital
discontinued
Kihoku Branch(Wakayama)

Active euthanasia

National Health
Insurance Keihoku
Hospital(Kyoto)Summary
Judicial disposition
The eldest son of a patient hospitalized for multiple myeloma., requested thatthe therapeutic action be discontinued. The doctor discontinued intravenous infuYokohama District Court, Mar. 28, 1995 (Doctor/Murder, 2
1991.4.
sion and other treatments. Furthermore, the patient’s family requested, “Pleaseyears imprisonment, 2 years suspended sentence).
make the patient comfortable.” The doctor injected potassium chloride and otherdrugs into the patient and caused his death.
A 48-year-old comatose patient hospitalized for terminal cancer was administered a muscle relaxant at the doctor’s discretion. Approximately 10 minutes The case was dropped because the actual administered dose
1996.4.
later, the patient died. The hospital director was prosecuted for murder the fol- was less than the lethal dose.
lowing year.
Yokohama District Court 2005.3.25. Medical doctor/killer, 3
An attending physician extubated a patient who became unconscious due to ayears of imprisonment, 5 years of execution → Tokyo High
bronchial asthma attack. However, when the patient was having difficulty breath1998.11.
Court 2007.2.28. 1 year and 6 months of imprisonment, 3ing, the attending physician ordered an assistant nurse to inject a muscle relaxant
years of execution → Third Petty Benchmarking Decision
intravenously to the patient, which caused the patient’s death.
2009.12.7.
A patient (90 years old) who had cardiopulmonary arrest due to aspiration offood was put on a ventilator. The attending physician explained to the family that Sent to prosecutors for murder. May 2004 → not prosecut2004.2.
the patient was in a brain dead state and was not expected to recover and then ed. August 2006 (causal relationship difficult to determine).
removed the ventilator, causing the patient’s death.
Former head of the Department of Surgery and former
Since 2000, the chief of surgery removed ventilators from seven terminally ill
2000.9second head of the Department of Surgery were prosecuted
patients (54–90 years old, four men and three women) at the request of their fam~2005.10.
on suspicion of murder (without seeking strict disciplinary
ilies and allowed them to die.
measures) H2008.7. Indictment not filed; 2009.12.

Important judicial precedents for euthanasia, death with dignity, and end-of-life care

Time

Table 1Treatment
discontinuation
Active euthanasiaa)

Type

Tokai University
Hospital(Kanagawa)

Case

YUKAWA Keiko, MATSUSHIGE Takuya

Issues in end-of-life care and organizing and prospecting ethical and legal issues of Voluntary Stopping of Eating and Drinking (VSED) in Japanthe crime of murder is “killing a person.” However, a crime
is not committed immediately after the act constitutes
the act of killing a person but only once the act has been
deemed illegal. A doctor’s surgical act also falls under therequirements for the crime of injury; however, because it isa legitimate medical act, it is not considered illegal. Next,
even if the act meets the requirements for constituting acrime of injury and is illegal, a crime is not committed if
liability cannot be established. For example, if a person ismentally ill or insane and cannot be held responsible, murder is not committed.
Thus, a crime is committed when an act that meets theconstitutive requirements is present, the act is illegal, andthe person is found to be responsible” .
There is an act that falls under the requirements of the criminal component.
Example: Killing a person
The act is presumed to be illegal.
Act in self-defense→Illegality is presumed to be excluded→Crime not committed
There are no circumstances preventing illegality→Illegality exists
It is presumed that the actor is responsible for the crime.
Act by an infant or a person incapable of judgment→Prevention of liability→Crime not committed
There are no circumstances to prevent responsibility→There is a presumption of culpability
The crime of murder is committed.

Figure 1 The process by which a crime is committed
under the Criminal Law

5. Euthanasia under the criminal law
Under criminal law, when a physician is involved ineuthanasia, such as removing a patient’s ventilator or notproviding necessary life-prolonging treatment, it constitutes murder and the legality of the act is an issue. From acriminal law perspective, euthanasia can be divided into thefollowing four categories [15].
Four types of euthanasia under criminal law(1) Passive euthanasia
This refers to cases in which death is hastened by nottaking active life-prolonging measures to avoid extending
the suffering of the dying person. In other words, this is thecase when a patient in a persistent vegetative state is permitted to die early without active life-prolonging treatment
to avoid extending the patient’s dying process.
(2) Active euthanasia
This refers to cases in which life is directly shortenedusing an artifice for eliminating physical suffering. In otherwords, it is a case in which the suffering of the dying personends with actively ending life.
(3) Pure euthanasia
This refers to cases in which the purpose is to alleviate
physical pain and suffering but not to shorten life. Pureeuthanasia is not considered an act that falls under the requirements of the Penal Code but is considered a type oftherapeutic act and is therefore not a problem under the
Penal Code.
(4) Indirect euthanasia
This refers to cases in which a procedure intended to alleviate physical pain results in shortening of life as a side effect that is not directly intended. According to criminal law,pure euthanasia is legal as a purely therapeutic act because
it does not hasten the patient’s death but rather alleviates
or eliminates the patient’s physical suffering. The common
view is that indirect euthanasia is considered justified as atherapeutic act, as long as it fulfills the requirements of atherapeutic act.
Additionally, if negative euthanasia falls under the requirements for murder, commissioned or consensual murder, or assisted suicide as a crime of omission, it is necessary to recognize the duty to perform the act. However, if
life-prolonging measures merely prolong the suffering of
the dying person, there is no legal obligation for the physician to prolong life. Finally, the legality of active euthanasia
has been the focus of debate in criminal law and has beenchallenged in court cases in Japan. According to current
common law and judicial precedents, the illegality of active
euthanasia may be prevented if certain requirements are
fulfilled. However, because of the strict criteria for active
euthanasia, there are few cases in which active euthanasia
is approved.

III. VSED
1. VSEDThus, the legal issues related to the life-or-death actionsof terminally ill people are complex. In recent years, a trend
has made these legal challenges even more difficult. In situations where people who wish to hasten their own deathand to be euthanized but are not permitted by the laws of
their nations, it has been confirmed in countries around theworld that they try hastening their death by stopping eating
and drinking.
In other countries, the term VSED is used to describe
the Voluntary Stopping of Eating and Drinking by terminally ill people. In recent years, studies on VSED have accumulated in these countries, and issues in ethics, medical
practice, and legal development have begun to be identified[16]. Shibasaki analyzed specific cases of VSED since the2000s and highlighted the issues in each case [17]. In Jain-

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YUKAWA Keiko, MATSUSHIGE Takuya
ism, “Sarekkana” (originally meaning “to wear down properly”) is generallyknown as a cultural custom to stop eating
and drinking at the time of death. Sarekkana is consideredby some societies a way of approaching death that is stillcelebrated today. The Indian High Court has decided that
Sarekkana should be banned. The court has introduced aruling that prohibited VSED and argued for the need to examine the ethics of VSED from multiple perspectives.
In Japan, palliative and home care physicians have reportedly experienced patients wishing VSED. Shinjo et al.
surveyed 219 home medicine specialists and 695 palliative
medicine specialists and found that 52% and 32% of physicians knew about VSED and had patients who had attempted it, respectively [18]. They also noted that 15% of thephysicians responded that palliative sedation was indicatedfor fatigue, hunger, and dry mouth associated with VSED.
It is not easy for patients to complete VSED on their own.
In cases overseas, support is often provided by medical andnursing care workers. There are ethical challenges involved
in, as palliative sedation is often deemed necessary by physicians to complete VSED.
The Netherlands enacted the “Act on the Terminationof Life on Request and Assisted Suicide” in 2002 [19]. The
criminal law in the Netherlands was also amended, and an
amendment was added to Article 293 of the criminal law,which previously prohibited euthanasia and assisted suicide.
The revised article states that liability is not imposed if thefollowing conditions are met: (1) clear intent, (2) unbearable suffering with no hope of cure, (3) no treatment, (4) athird-party physician’s decision and written agreement, and(5) a report to the coroner in accordance with burial law.
This was the first national move to legalize active euthanasia and assist suicide [20].
In the U.S. state of California, the Natural Death act(1994) was enacted, which states that not only terminallyill patients but also patients in a “vegetative state” are notsubject to criminal prosecution, civil liability, or punishment
or sanctions for violation of professional ethics for the actsof medical personnel who do not prolong life in accordancewith the declaration of the patient. A physician who fails tocomply with the declaration committsa misdemeanor.

In 2013, a German documentary film depicting Marion
M., a woman who chose VSED with the help of a doctor,
was released and became a hot topic [21]. Many patients try
to perform VSED on their own. In France, Alain Koch, who
had a degenerative disease of the arterial wall, abstained
from eating and drinking under the law prohibiting euthanasia [22]. Compared with other countries, Japan is far behindin terms of acquiring knowledge about VSED, developing
laws and guidelines, and formulating codes of ethics. The
Japan Geriatrics Society states the following in its “Guidelines for the Decision-Making Process of Care for the Elderly: Focusing on the Introduction of Artificial Hydration
and Nutritional Supplementation” [1]. The lack of sharedunderstanding of whether it is unconditionally better to live
longer causes confusion among advocates of introducing
artificial hydration and nutrition.
In modern society, views on life and death are becoming
increasingly diversified, and the will of patients regarding
medical care is becoming increasingly respected. Therefore,
it is important to have an appropriate method to confirm decisions and practice evidence-based care. As a preliminary
step, it is necessary to organize and systematize ethicalissues and establish a code of ethics to eliminate conflicts
among the individuals involved.
2. Categorizing four types of “VSED”
Next, to systematically conduct future studies on various
issues, we independently developed a basic typology of
VSEDs. Table 2 presents four types of VSEDs, from Type
1 to Type 4, according to the “legality issue” and “presenceor absence of assistants” to stop eating and drinking.
Type 1–4 VSED are categorized” to the four types
formed by the horizontal axes of “legal” and “illegal” andthe vertical axes of “with assistance of others” and “unassisted by others,” and the accompanying central issues areshown in the lower row for each of them.
First, in Type 1 VSED, which is performed under “legal”
and “unassisted” situations, there are no illegality and no
caregiver, but it is important to give due consideration to
the possibility of conflict and psychological distress in those
who somehow know the person’s intention to perform

Table 2 Basic types of VSED and main issues

Legal
Legality
Illegal26

Execution of food and beverage stops
With assistance from others
Unassisted by others
Type 1 VSEDType 2 VSED
Consideration of the psychological distress in those who
Developing a code of ethics for assistants
know the person’s intention
Assistance and confirmation of intent
Type 4 VSED
Criminal response to so-called assisted suicide

Type 3 VSED
Respect for will vs. legal issues

J. Natl. Inst. Public Health, 72 (1) : 2023

Issues in end-of-life care and organizing and prospecting ethical and legal issues of Voluntary Stopping of Eating and Drinking (VSED) in Japan
VSED. Additionally, it is necessary to consider communication that continuously confirms the intention of the person.
In a situation where the legality of the support of VSED
has already been established, those that involve the assistance of others are designated as Type 2 VSEDs. Here, although legal issues are exempted, it is necessary to develop
a code of ethics to reduce the pain and conflict between
the parties concerned and their assistants. In an illegal andunsubsidized situation, Type 3 VSED involves judicial intervention. Here, it is processed as “illegal” and itis imaginedthat various arguments will be raised in domestic society.
In addition to the long-standing conflict between the rightto self-determination at death and the law, this may involvethe issue of how certain the person’s “will” is. In Type 4
VSED, which is illegal and assisted by others, criminal action against “assisted suicide” occurs. In Japan, Article 202of the Penal Code provides for the crime of assisting suicide. In this case, the act of assisting VSED is regarded as“assisted suicide,” that is, assistance to facilitate the act ofsuicide. In this context, broader social debates about what
constitutes “suicide” should also be assumed to occur inthese illegal situations.

IV. Conclusions
With the advent of a “super-aged, multi-level death society” and the growing interest in end-of-life care and “lifeat the end-of-life,” it is necessary to reexamine the self-determination of patients regarding end-of-life decisions andhow healthcare professionals should respond. Advancesin medical technology have made it possible to prolong
life, but when patients do not wish to prolong their lives,
options such as “euthanasia,” “death with dignity,” and“physician-assisted suicide” have been taken, resulting in
problems for medical professionals in relation to bioethics
and criminal law and justice.
It is desirable to organize issues according to ethics,
medical practice, and legislation regarding VSED; disseminate knowledge about VSED in Japan; develop laws andguidelines; and establish a code of ethics to ensure legal
stability and remove psychological conflicts for healthcare
professionals.

Acknowledgments
This study was supported by The Yuumi Memorial Foundation for Home Health Care, and it is a summary of someof the research results that have been carried out. The authors thank everyone support this study.

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Muto M. [Chapter 6 Active euthanasia.] Series in Japan
Bioethics Editing Committee, edited. Series bioethics euthanasia / death with dignity. Tokyo: Maruzen Publishing;2013. (in Japanese)[16] Pope TM, Anderson LE. Voluntarily stopping eating anddrinking: a legal treatment option at the end of life. Widener Law Review. 2011;17:363.
[17] 柴嵜雅子．終末期における自発的飲食中止という選択．国際研究論叢:大阪国際大学紀要. 2017;31(1):55-68.
Shibasaki M. [Voluntary stopping of eating and drinking as
an option at the end of life.] OIU Journal of International
Studies. 2017;31:55-68. (in Japanese)[18] Shinjo T, Morita T, Kiuchi D, et al. Japanese physiciansʼ
experiences of terminally ill patients voluntarily stopping
eating and drinking: a national survey. BMJ Supportive &Palliative Care. 2019;9:143-145.
[19] Overheid.nl. Wet levensbeëindiging op verzoek en hulp
bij zelfdoding. https://wetten.overheid.nl/BWBR0012410/2021-10-01 (accessed 2022-12-10)[20] 甲斐克則．第12章オランダにおける安楽死・尊厳死．
シリーズ生命倫理学編集委員会，編．シリーズ生命
倫理学 安楽死・尊厳死．東京：丸善出版；2013．
Kai K. [Chapter 12 Euthanasia and death with dignity in
the Netherlands.] Series Bioethics Editorial Committee,edited. Series bioethics euthanasia / death with dignity. Tokyo: Maruzen Publishing; 2013. (in Japanese)[21] Medienprojekt Wuppertal. Sterbefasten-Freiheit Zum Tod.
2021. https://www.medienprojekt-wuppertal.de/v_184 (accessed 2021-08-01）[22] BBC NEWS. Frenchman alain cocq accepts palliative careafter bid to livestream death. 2020. https://www.bbc.com/
news/world-europe-54094247 (accessed 2022-12-19)

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Issues in end-of-life care and organizing and prospecting ethical and legal issues of Voluntary Stopping of Eating and Drinking (VSED) in Japan
Appendix

The process by which a crime is committed under the Criminal Law in Japan

Requirements for an act to be punished as a crime1【【Constitutive elements】】An act must fulfill the constitutive elements of a crime.

2【【Illegality】】The act must be illegal (i.e., the act must be contrary to law and order and must infringe upon legal interests).

3【【Culpability】】The actor must be responsible for the act (the act must be capable of making the actor liable).
2* [Illegality] The illegality of the act is not denied.
3* [Responsibility] The actor's responsibility for the act is not denied.
Constituting elements (bodily injury, destruction of corpse, murder, and homicide with consent)(Article 204) A person who causes another person to suffer injury is punished by imprisonment for not more than 15 years or a fine of not morethan 500, 000 yen.
(Article 190) A person who damages, abandons, or unlawfully possesses a corpse, the ashes or hair of a dead person, or an object placed in a coffin
is punished by imprisonment for not more than 3 years.
(Article 199) A person who kills another person is punished by the death penalty or imprisonment for life or for a definite term of not less than 5
years.
(Article 202) A person who induces or aids another person to commit suicide, or kills another person at the other's request or with other's consent
is punished by imprisonment or imprisonment without work for not less than 6 months but not more than 7 years.
Reasons why the applicability of the constitutive requirement is required
The principle of criminal law: The law enacted or promulgated prior to the Act must determine what acts are punishable and, if so, what punishment
is to be imposed.
If an act meets the requirements for a crime, it is presumed to be illegal and the actor is responsible for the act.
Cases in which illegality is presumed
Criminal Law* Article 35（（Justifiable Acts））
An act performed in accordance with laws and regulations or in the pursuit of lawful business is not punishable.
*Article 36 (Justifiable Defense)(1) An act a person was compelled to take to protect the rights of oneself or any other person against imminent and unlawful infringement is notpunishable. (2) An act exceeding the limits of self-defense may lead to the punishment being reduced or may exculpate the offender in light of thecircumstances.
*Article 37(Emergency Evacuation)
An act a person was compelled to take to avert a present danger to the life, body, liberty or property of oneself or any other person is not punishable
only when the harm produced by such act does not exceed the harm to be averted; provided, however, that an act causing excessive harm may leadto the punishment being reduced or may exculpate the offender in light of the circumstances.
Cases in which culpability is excluded*Penal Code Article 39(Insanity and Insanity of the Insane)(1) Actions due to insanity is not subject to punishment. (2) An act of diminished capacity leads to the punishment being reduced.
*Article 41(Age of Responsibility)
An acts of a person less than 14 years of age is not punishable.
Medical Treatment and Grounds for Inhibition of Illegality＊Surgery: Acts in the course of legitimate duties as stipulated in Article 35＊Removal of organs for transplantation from a living body: Included in the justifiable acts under Article 35 (or extrajudicially barred fromillegality).

＊Removal of organs for transplantation from a corpse: Legal Act under Article 35 (Organ Transplantation Law)

＊Euthanasia, death with dignity and discontinuation of end-of-life care: May be included in justifiable acts under Article 35 (or may be
extrajudicially barred).

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YUKAWA Keiko, MATSUSHIGE Takuya＜総説＞
日本の終末期ケアにおける課題の整理および終末期の自発的飲食中止（Voluntary Stopping of Eating and Drinking: VSED）の倫理的法的課題の整理と展望
湯川慶子 1），松繁卓哉 2）
1）

国立保健医療科学院政策技術評価研究部

2）

国立保健医療科学院医療・福祉サービス研究部

抄録
世界に類を見ない高齢化が進み，年間約130万人が亡くなる「超高齢多死社会」の中で終末期医療への関心が高まっている．さまざまな学会が終末期医療のあり方をガイドラインなどで取り上げ，2018年には厚生労働省も終末期医療に関するガイドラインを11年ぶりに改訂した．国民の間でも「終活」として自らの人生の締めくくりへの関心が高まり，「望ましい死に方」やそれに対応する医療のあり方などが議論されるようになっている．どのような終末期医療が求められるのか，医療福祉関係者はどのように患者や家族に寄り添うべきか，医療技術の進歩で患者の延命は可能になったが患者自身が延命を望まない場合はどのように対応すればよいのかなど，終末期医療は様々な問題をはらむ．患者が延命を望まない場合，「安楽死」「尊厳死」「医師による自殺幇助」といった選択肢もあるが，患者の理想とする死に方の追及（患者の意思決定）と，治療を求められる医療従事者との間の葛藤の場面と言える．
本稿では，これまで終末期にある患者の意思決定が尊重された結果，医療者により人工呼吸器や延命治療の差し控えや中止が行われた事件について医療者にどのような司法判断が下されたのか，法学上の議論も踏まえながら整理を試みる．特に，終末期における自発的飲食中止（VSED）に関する研究や基盤整備は諸外国に比べ，わが国では遅れている．そのため，これに関する倫理・医療実践・法整備の面での課題を整理し，日本におけるVSEDに関する知識の普及，法・ガイドライン等の整備，
倫理綱領の策定に向けた議論を行う．
キーワード：終末期医療，法律，倫理，自発的飲食中止，生命維持治療の中止

30

J. Natl. Inst. Public Health, 72 (1) : 2023