Regarding the Tokyo District Court Ruling on Mixed Medical Care

There is no direct relationship between the Ministry of Healthy, Labor and Welfare’s publicly-stated goals and the ban on mixed medical care. Taking this ruling as an opportunity, one hopes that discussion will deepen on not only the pros and cons of mixed medical care and public medical insurance coverage, but also on how to ensure medical care equality, safety and effectiveness.

Mixed medical care refers to medical care services that combine treatment both covered and not covered by public medical insurance. Excluding areas such as admission to a special ward, in the past the Ministry of Healthy, Labor and Welfare has not recognized mixed medical care and in the event such services were received it deemed the fees to be borne entirely by the patient including medical insurance treatment.

However, medical practices recognized overseas are oftentimes not covered by insurance in Japan, meaning a desired cutting-edge medical service might be limited. In the case of certain cancer patients, this represents a serious problem.

Against this background, a cancer patient in Kanagawa Prefecture filed an administrative lawsuit asserting the recognition of mixed medical care. On November 7, 2007, the Tokyo District Court recognized the patient’s claim and handed down a ruling against the state.

According to the ruling, there is no legal basis for prohibiting mixed medical care. This stance has been taken by economists for some time, but to have the same judgment passed down in a legal setting has significant meaning. In addition, because it was an unprecedented case there were no lawyers willing to take on the lawsuit, and self-representation was the only option. This raised doubt among society concerning whether lawyers and so on are providing necessary legal services to the disadvantaged.

During the trial, the Ministry of Healthy, Labor and Welfare cited “guaranteeing medical equality”, “the danger that expenses borne by patients will increase to an unfair degree” and “ensuring medical safety and effectiveness” as reasons for prohibiting mixed medical care.

Under the current public medical insurance system, however, historical circumstances led to multiple systems such as health insurance, national health insurance, mutual aid and so on coming to exist at the same time, and an unfair situation had already emerged before the debate began on mixed medical care. In particular, because of a large gap between national health insurance and welfare, recently people unable to receive medical care because they cannot pay national health insurance premiums but at the same time are not eligible for welfare are rapidly increasing. Providing medical care to these people is precisely the kind of policy necessary to ensure equality in medical care, and increasing the self-pay burden on cancer patients in need is to weaken medical equality.

There are indeed concerns about an increase in expenses borne by patients to an unfair degree and ensuring safety and effectiveness. In fact, there are currently some hospitals that demand hidden fees not recognized under the public medical insurance system (according to a book by Mr. Koichi Kawabuchi). Moreover, there is some doubt regarding whether patients are receiving adequate explanations concerning safety and effectiveness.

These problems, however, are related to an asymmetry of information, such as showing beforehand what kind of services and at what cost will be provided to patients as well as the kind of risks involved. Even if mixed medical care is prohibited, the asymmetry of information will not necessarily be mitigated. The government should develop policy that will ease the asymmetry of information by promoting the disclosure of third party evaluations concerning safety and effectiveness.

In addition, if mixed medical care is permitted there is concern that pharmaceutical companies will begin to dodge listing drugs in public medical insurance and mixed medical care services will hollow out. There are currently medical products set with prices that will not produce sales or profits and are dodging insurance listing. Regardless of the pros and cons of mixed medical care, a system that properly conducts economic evaluation of medical products and in some cases promotes insurance listing should be discussed.

The state has appealed the Tokyo District Court’s ruling to the Tokyo High Court. As an issue that concerns even the right of life, there is a possibility that it will be contested all the way to the Supreme Court. Regardless of the legal outcome, this issue should be used as an opportunity for deeper discussion on not only the pros and cons of mixed medical care but also on a host of problems such as how to ensure medical safety and effectiveness, how to decide the scope of medical care insurance, and how to explain medical content and expenses to patients in advance.