[The current situation regarding guarantees of legal rights to social welfare and nursing care in Japan: based on an analysis of adjudications spanning the period 1960 to 2005].

Purpose: To clarify whether people who need social care are legally guaranteed a "right to receive nursing-care services" as a living right in Japan.

Method: Using the database "Judicial Information System on CD-ROM" and journals which cover judicial precedents, such as "Supreme Court Reports" and "Judicial Reports", we searched for adjudications from 1960 to 2005 with 'living rights' as key words. The complete content of these adjudications was ascertained by reference to the journals. We then assessed whether a "right to receive nursing-care services" was specifically discussed in each of the adjudications by determining how the courts interpreted Article 25 of the Constitution in the verdicts and whether or not there was specific discussion of legal rights in each case.

Results: Of 210 adjudications extracted from the database, 23 (11.0%) specifically discussed the right to some sort of social security. No specific reference was made in the remaining 187 decisions (89.0%), and plaintiffs' claims were rejected. Whereas the "right to nursing care" was specifically discussed in no decisions before 1992, it was discussed in 4 decisions (40.0%) from 1993 onwards, resulting in plaintiffs' demands being partly granted. The content of the decisions covered issues that included anxiety about future nursing care, the practice of nursing homes of placing several elderly people in one room, ill-defined standards and low pay for home nursing-care workers, provision of nursing-care services based on the assumption that nursing care would be provided by family members, and self-determination and independence of the severely handicapped.

Conclusion: A "right to receive nursing-care services" has not been fully guaranteed in the legal sense. However, such a right, included as a living right, is a primary right with a constitutional basis. Although this right has been specifically discussed in only a minority of adjudications, there has been a recent tendency for more emphasis. Both elderly and handicapped persons, as well as caregivers, need to raise their consciousness about "right to receive nursing-care services" as a human right. It is necessary to assess the use of services and the quality of nursing care in understanding actual needs. The development and operation of a legal system which guarantees the rights of the elderly and handicapped is absolutely imperative.