Federal Constitutional Court - Press office -
Press release no. 28/2011 of 15 April 2011
Order of 23 March 2011 – 2 BvR 882/09 –
Successful constitutional complaint lodged by a person committed to a
psychiatric hospital as a measure of correction and prevention against
compulsory medical treatment aimed at achieving the objective of the
measure – legislation in Rhineland-Palatinate held unconstitutional
The complainant has been confined in a psychiatric hospital as a measure
of correction and prevention since the year 1999 due to a sentence for
acts of violence he had committed in a state of criminal incapacity. The
hospital to which the complainant was committed informed him in writing
that he would be treated with “a suitable antipsychotic, which will be
injected intramuscularly, possibly even against your will”. The
complainant’s application for a judicial decision which was directed
against that was rejected by the Regional Court (Landgericht) with the
proviso that compulsory treatment with atypical antipsychotics was
permissible for a period of six months. The appeal on points of law
lodged against this decision before the Higher Regional Court
(Oberlandesgericht) was unsuccessful.
According to § 6.1 sentence 1 of the Act on the Execution of Measures of
Correction and Prevention (Maßregelvollzugsgesetz) of the Land (state
of) Rhineland-Palatinate (MVollzG Rh.-Pf.), operations, treatments and
examinations of a person committed to an institution as a measure of
correction and prevention are permissible only with the person’s consent
if they involve a considerable health risk or a danger to the patient’s
life; other operations, treatments and examinations are permissible
without the consent of the person affected if the person is in mortal
danger and in case of serious danger to the person’s health or of danger
to other persons’ health. Furthermore, the first half-sentence of § 6.1
sentence 2 MVollzG Rh.-Pf., which is the legal basis in the case at
hand, provides that apart from that, treatments and examinations which
serve to achieve the objective of the measure of correction and
prevention can be performed without the consent of the person affected.
The Second Senate of the Federal Constitutional Court decided that § 6.1
sentence 2 MVollzG Rh.-Pf. is incompatible with the fundamental right to
physical integrity under Article 2.2 sentence 1 of the Basic Law
(Grundgesetz – GG) in conjunction with the fundamental right to
effective legal protection under Article 19.4 GG and that it is hence
void. The rulings of the Regional Court and of the Higher Regional Court
which were challenged by the constitutional complaint were annulled
because they violate the complainant’s fundamental right to physical
integrity, as no sufficient legal basis exists for the compulsory
treatment that had been announced to the complainant.
In essence, the decision is based on the following considerations:
Medical treatment performed against the natural will of a person who, as
a measure of correction and prevention, has been committed to an
institution (compulsory treatment) is an especially serious encroachment
on the person’s fundamental right to physical integrity under Article
2.2 sentence 1 GG.
The legislature is not as a matter of principle prevented from
permitting such encroachments. This also applies to a treatment which
serves to achieve the objective of the measure, i.e. is to enable the
person committed to an institution to be released. The legal interest of
the person’s own freedom, which is protected as a fundamental right
(Article 2.2 GG), may be suitable to justify such an encroachment if due
to his or her illness, the person lacks insight into the gravity of his
or her illness and the necessity of treatment measures, or is unable to
act according to such insight. To the extent that under this condition,
an authorisation to perform compulsive treatment is to be recognised by
way of exception, this does not establish a “reason-based sovereignty”
(Vernunfthoheit) of state bodies over the holder of fundamental rights
in such a way that the will of the latter may be disregarded merely
because it deviates from average preferences or appears to be
unreasonable from an outside perspective. Compulsory treatment measures
may only be used if they are promising with regard to the objective of
the treatment that justifies their use and if they do not involve
burdens to the person affected which are out of proportion to the
benefit that can be expected. They may only be used as a last resort. A
less incisive treatment must appear hopeless. If the person affected is
able to communicate, compulsory treatment must have been preceded,
irrespective of the person’s capacity to understand and to consent, by
the serious attempt, with the necessary time devoted to it and without
exerting impermissible pressure, to achieve the trust-based consent of
the person confined.
Additionally, a person committed to a closed institution depends to a
particularly large extent on procedural safeguards in order to preserve
his or her fundamental rights. At any rate in case of planned treatment
measures, a sufficiently specific announcement is necessary which
provides the person affected with the possibility of seeking legal
protection in good time. To preserve proportionality, it is essential
for compulsive medication to be ordered and supervised by a physician.
To ensure proportionality and the effectiveness of legal protection, it
is necessary to extensively document treatment measures taken against
the will of the person affected. With a view to the special
situation-related threats to fundamental rights to which the person who
is committed to an institution is exposed, it must furthermore be
ensured that compulsory treatment performed in order to achieve the
objective of the measure of correction and prevention be preceded by a
review taking place under conditions which secure its independence of
the institution to which the person is committed. It is for the
legislature to elaborate the way in which this will be done.
The essential substantive and procedural prerequisites of the
encroachment require legal regulation.
The authorisation for the encroachment granted under § 6.1 sentence 2
MVollzG Rh.-Pf. does not satisfy these prerequisites even in conjunction
with other provisions of the Act on the Execution of Measures of
Correction and Prevention of Rhineland-Palatinate. What is missing in
particular is the legal regulation of the indispensable requirement of
illness-induced lack of capacity to understand. Several other
prerequisites of an encroachment which are material for
fundamental-rights protection are insufficiently regulated, or not
regulated at all.
This press release is also available in the original german version.
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