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Successful constitutional complaint lodged by a person confined in a psychiatric hospital against coercive medical treatment to achieve the confinement’s objective – Legislation in Rhineland-Palatinate held unconstitutional

Press Release No. 28/2011 of 15 April 2011

Order of 23 March 2011
2 BvR 882/09

The complainant has been confined in a psychiatric hospital since 1999 following his conviction for violent offences that he had committed while exempt from criminal responsibility. The hospital in which the complainant was confined notified him in writing of treatment “with a suitable neuroleptic drug administered by intramuscular injection – if necessary against your will”. The Regional Court (Landgericht) dismissed the complainant’s application for a judicial decision challenging this notice, and ruled that coercive drug treatment with atypical neuroleptic agents was permissible for a period of six months in this case. The complaint on points of law (Rechtsbeschwerde) lodged with the Higher Regional Court (Oberlandesgericht) was unsuccessful. 

Pursuant to § 6(1) first sentence of the Rhineland-Palatinate Act on Psychiatric Confinement of Criminal Offenders (Maßregelvollzugsgesetz – MVollzG), if they involve considerable health risks or risks to the life of affected persons, surgery, treatment and examination of persons confined in an institution are only permissible with the consent of affected persons; other surgery, treatment and examination measures are permissible without the consent of affected persons if the person’s life is in danger, if there are serious health risks for the affected person or if other persons’ health is at risk. Furthermore, § 6(1) second sentence first half-sentence MVollzG, which constitutes the statutory basis for the measures challenged in the present case, provides that treatment and examination measures that serve to achieve the objective of confinement can also be performed without the consent of affected persons. 

The Second Senate of the Federal Constitutional Court held that § 6(1) second sentence MVollzG is incompatible with the fundamental right to physical integrity under Art. 2(2) first sentence of the Basic Law (Grundgesetz – GG) in conjunction with the fundamental right to effective legal protection under Art. 19(4) GG and is void. The challenged orders of the Regional Court and of the Higher Regional Court were reversed on the grounds that they violate the complainant’s fundamental right to physical integrity, as they are not grounded on a sufficient statutory basis to allow coercive treatment of the complainant.

In essence, the decision is based on the following considerations: 

Medical treatment of a confined person against their natural will amounts to a particularly serious interference with the fundamental right to physical integrity under Article 2(2) first sentence GG. 

The legislator is not generally precluded from allowing such interferences. This also applies to treatment that serves to achieve the confinement’s objective, i.e. that aims to prepare the confined person for release. The constitutionally protected liberty interest (Article 2(2) GG) of the confined person may be capable of justifying such an interference if they are not able to exercise this interest because, due to illness, they lack the mental capacity for insight into the necessity of medical treatment or for acting upon this insight. While under these conditions the state is exceptionally authorised to carry out coercive treatment, this does not, however, establish the ‘sovereignty of reason’ (Vernunfthoheit) of state organs over fundamental rights holders in such a way that their will is set aside merely because it differs from average preferences or appears to be unreasonable from an outside perspective. Coercive treatment measures are only permissible if the prospects of success in respect of the objective of the treatment justifying the measures are good and if they do not burden affected persons disproportionately to the benefit that can reasonably be expected. They may only be used as a last resort. Less intrusive treatment must be futile. If affected persons are able to communicate, coercive treatment must be preceded by serious attempts, taking the necessary time and without impermissible pressure, to obtain their consent based on trust; this applies independently of whether confined persons have mental capacity, including the capacity to consent. 

Moreover, persons confined in closed institutions are particularly dependent on procedural safeguards in order to uphold their fundamental rights. Certainly in respect of scheduled treatments, sufficient notice must be given to affected persons at least where a measure is to be performed even though the necessary efforts to obtain consent have failed, so that the affected person has time to seek legal protection. For coercive drug treatment to be proportionate, it is indispensable that such treatment be ordered and supervised by a physician. To ensure proportionality and effective legal protection, treatment administered against the will of affected persons must be documented comprehensively. In view of the particular risk to fundamental rights posed by the situation of persons in confinement, it must also be ensured that prior to coercive treatment for achieving the confinement’s objective, a review must be carried out that is entirely independent of the institution where the person is confined. It is for the legislator to give shape to these safeguards. 

The key substantive and procedural requirements subject to which the interference is permissible must be set out in statutory provisions. 

The statutory authorisation in § 6(1) second sentence MVollzG does not satisfy these requirements, not even when read in conjunction with other provisions of the Rhineland-Palatinate Act on Psychiatric Confinement of Criminal Offenders. In particular, there is no statutory provision setting out that lack of mental capacity due to illness is an absolute prerequisite that must apply in cases of coercive treatment administered to achieve the confinement’s objective. In addition, there are no or only insufficient statutory provisions setting out further procedural prerequisites for interference that would be essential for protecting fundamental rights.