Judgment of 26 November 2024

Table of contents

1. 1

   A. Facts of the case

2. 64

   B. Admissibility

3. 92

   C. Decision on the merits: Compatibility with
     Art. 2(2) first sentence, second alternative of the Basic Law
   

   1. 94

      I. Formal constitutionality

   2. 99

      II. Scope of protection and interference

   3. 108

      III. Justification
      

      1. 109

         1. Limitation clause in Art. 2(2) third sentence of the Basic Law

      2. 112

         2. Legitimate purposes
         

         1. 113

            a) Standard

         2. 116

            b) Application of this standard to the present case

            1. 117

               aa) Protection from coercive treatment in one’s home

            2. 118

               bb) Review by multi-professional teams whether
                       the prerequisites for coercive medical treatment are met

            3. 119

               cc) Prevention of unnecessary coercive medical treatment that is
                      based on misguided incentives

            4. 121

               dd) Guarantee of proper medical care

      3. 123

         3. Suitability

      4. 133

         4. Necessity

      5. 138

         5. Appropriateness

         1. 139

            a) Standard

         2. 141

            b) Application of this standard to the present case
            

            1. 142

               aa) Severity of interference

            2. 150

               bb) Significance of the purposes pursued

            3. 153

               cc) Overall assessment

               1. 154

                  (1) Typical case

               2. 155

                  (2) Lack of exception clause

            4. 165

               dd) No possibility of interpretation of the provision in conformity with the Constitution

4. 168

   D. Legal consequences

R e a s o n s :

A.

1

The present judicial review proceedings concern the constitutionality of § 1906a(1) first sentence no. 7 of the Civil Code (Bürgerliches Gesetzbuch – BGB) as amended by the Act Amending the Substantive Requirements for Coercive Medical Treatment and Strengthening the Right to Self-Determination of Persons under Custodianship of 17 July 2017 (Federal Law Gazette, Bundesgesetzblatt – BGBl I p. 2426, hereinafter: Civil Code, old version; for the rest, too, the provisions of the Civil Code that were in force in 2022 – the relevant year for reviewing the lawfulness of the decisions of the local court as the custodianship court and of the appellate court in the initial proceedings – receive the addition ‘old version’, and those that came into force at the beginning of 2023 receive the addition ‘new version’). § 1906a(1) first sentence no. 7 of the Civil Code (old version), which was in force from 22 July 2017 until 31 December 2022, provided that a custodian may only consent to coercive medical treatment of a person under custodianship if it is administered in an inpatient hospital setting, where the necessary standard of medical care, including any follow-up care, is ensured. The Act to Revise the Law on Guardianship and Custodianship of 4 May 2021 (BGBl I p. 882) replaced § 1906a(1) first sentence no. 7 of the Civil Code (old version) with § 1832(1) first sentence no. 7 of the Civil Code (new version), which has the same wording.

I.

2

1. § 1906a(1) first sentence no. 7 of the Civil Code (old version), the provision under review here, was introduced by the Act Amending the Substantive Requirements for Coercive Medical Treatment and Strengthening the Right to Self-Determination of Persons under Custodianship of 17 July 2017. This was the first time that the legislator lifted the requirement that coercive medical treatment of persons under custodianship must be administered while the affected persons are confined in an institution. § 1906a of the Civil Code (old version) read as follows:

§ 1906a Approval by the custodianship court in the case of coercive medical treatment

(1) ¹Where an examination of the state of health of the person under custodianship, therapeutic treatment or a medical intervention are against the natural will of the person under custodianship (coercive medical treatment), the custodian may consent to the coercive medical treatment only if

1. the coercive medical treatment is necessary for the well-being of the person under custodianship in order to avert an impending substantial damage to health,

2. the person under custodianship cannot recognise the necessity of the medical treatment, or cannot act in accordance with this realisation, because of a mental illness or of a mental or psychological disability,

3. the coercive medical treatment corresponds to the will of the person under custodianship that is to be taken into account pursuant to § 1901a,

4. a serious attempt had been made previously, with the necessary time being expended and without exercising any undue pressure, to convince the person under custodianship of the necessity of the medical treatment,

5. the impending substantial damage to health cannot be averted by any other measure that is less onerous for the person under custodianship,

6. the anticipated benefit of the coercive medical treatment considerably outweighs the anticipated adverse effect, and if

7. the coercive medical treatment is performed while the person under custodianship is an inpatient in a hospital in which the required medical care for the person under custodianship, including the necessary follow-up treatment, is assured.

(…)

(2) Consent to the coercive medical treatment requires approval by the custodianship court.

(3) ¹The custodian is to revoke consent to the coercive medical treatment if the prerequisites for such consent have ceased to exist. ²The custodian is to inform the custodianship court of the revocation without undue delay.

(4) Where coercive medical treatment is an available option, § 1906(1) no. 2, (2) and (3) first sentence applies accordingly to the placement of the person under custodianship against their natural will in a hospital as an inpatient.

(5) ¹The consent by an agent to coercive medical treatment and the consent to a measure pursuant to subsection (4) have as their prerequisite that the power of attorney has been granted in writing and that it expressly includes consent to these measures. ²Subsections (1) to (3) apply accordingly.

3

2. In 2022 – the relevant year for reviewing the lawfulness of the decisions of the custodianship court (Betreuungsgericht) and of the Regional Court (Landgericht) in the initial proceedings – the provisions for coercive medical treatment in the context of custodianship law under the Civil Code were as follows:

4

a) If adults, due to mental illness or physical, mental or psychological disability, are unable, entirely or in part, to attend to their affairs, the custodianship court appoints a custodian for them on their application or ex officio (cf. § 1896(1) first sentence Civil Code, old version). […]

5

If a health examination, therapeutic treatment or medical intervention is against the natural will of a person under custodianship (coercive medical treatment; cf. § 1906a(1) first sentence Civil Code, old version), a custodian appointed for the relevant affairs can consent to such coercive medical treatment. The detailed prerequisites for a custodian’s consent to coercive medical treatment are set out in § 1906a(1) first sentence of the Civil Code (old version). One of the prerequisites, which must all be met at the same time (cf. Bundestag document, Bundestagsdrucksache – BTDrucks 18/11240, p. 19), is set out in § 1906a(1) first sentence no. 7 of the Civil Code (old version), the provision under review here.

6

b) The custodian’s consent to any coercive medical treatment must be approved by the custodianship court (§ 1906a(2) Civil Code, old version). Under § 1906a(4) of the Civil Code (old version), the custodian can also consent to the placement of the person under custodianship into hospital for coercive inpatient treatment against their natural will; this consent likewise requires approval from the custodianship court (§ 1906a(4) in conjunction with § 1906(2) of the Civil Code, old version). § 1906 of the Civil Code (old version) read in relevant part as follows:

§ 1906 Approval by the custodianship court in the case of placement involving deprivation of liberty and in the case of measures involving deprivation of liberty

(1) It is permissible for the custodian to place the person under custodianship in an environment associated with deprivation of liberty only as long as this is necessary for the well-being of the person under custodianship because

1. by reason of a mental illness or mental or psychological disability of the person under custodianship, there is a danger that they will kill themselves or cause substantial damage to their own health, or

2. in order to avert the threat of substantial damage to health, an examination of the state of health of the person under custodianship, therapeutic treatment or a medical intervention is necessary, the measure cannot be carried out without the person under custodianship being placed in confinement, and the person under custodianship, by reason of a mental illness or mental or psychological disability, cannot recognise the necessity of the confinement or cannot act in accordance with this realisation.

(2) ¹The confinement is only permissible if approved by the custodianship court. ²Without the approval, the confinement is permissible only if delay entails risk; the approval is to be obtained thereafter without undue delay.

(3) ¹The custodian is to terminate the confinement if the prerequisites therefor have ceased to exist. ²The custodian is to notify the custodianship court of the termination of the confinement without undue delay.

(…)

7

3. In inserting § 1906a (old version) into the Civil Code, the legislator intended to close a gap in protection identified by the Federal Constitutional Court. This gap in protection arose because persons under custodianship could not undergo any coercive medical treatment whatsoever if the prerequisites for confinement in an institution were not met.

8

a) Initially, the custodianship law in the Civil Code did not contain an express provision regarding the prerequisites for coercive medical treatment (cf. BTDrucks 11/4528, pp. 72, 141). In its established case-law, the Federal Court of Justice (Bundesgerichtshof) presumed that custodians could only consent to coercive medical treatment if it was administered while affected persons where confined in an institution pursuant to § 1906(1) no. 2 of the Civil Code as amended by the Act Revising the Law on Guardianship and Custodianship for Adults of 12 September 1990 (BGBl I p. 2002; cf. Decisions of the Federal Court of Justice in Civil Matters, Entscheidungen des Bundesgerichtshofes in Zivilsachen – BGHZ 166, 141 <149 paras. 18 ff.>). The Federal Court of Justice held that a measure constitutes confinement in this sense if affected persons are held, either against their will or in a state where they lack a will, in a restricted area of a hospital, other institution or part thereof which they cannot leave, they are constantly monitored and contact to persons outside the facility is limited, with the measure being applied for a certain time period (cf. BGHZ 145, 297 <300 ff.>).

9

b) In its order of 23 March 2011 concerning coercive medical treatment of persons confined under criminal law, the Federal Constitutional Court held that the key prerequisites for coercive medical treatment must be set out in clear and specific legal provisions (cf. Decisions of the Federal Constitutional Court, Entscheidungen des Bundesverfassungsgerichts – BVerfGE 128, 282). In response to that decision, the legislator adopted the Act Governing Consent Under Custodianship Law to Coercive Medical Treatment of 18 February 2013 (BGBl I p. 266) and inserted sections (3) and (3a) into § 1906 of the Civil Code (for details cf. the description in BVerfGE 142, 313 <316 ff. paras. 8 to 17>). The newly inserted sections provided that consent by a custodian to coercive medical treatment (continued to) only be permissible while affected persons were confined under custodianship law (cf. BTDrucks 17/11513, p. 6).

10

c) Following the Federal Court of Justice’s application for specific judicial review of § 1906(3) of the Civil Code, the Federal Constitutional Court, in its decision of 26 July 2016, held that it was incompatible with the state’s duty of protection following from Art. 2(2) first sentence of the Basic Law (Grundgesetz – GG) that, in cases where there was a risk of considerable impairments to their health, persons under custodianship who lack the mental capacity to understand the necessity of medical treatment or for acting upon such understanding could not, under any circumstances, receive medical treatment against their natural will if they were receiving inpatient hospital treatment but could not be confined in an institution because they did not intend to remove themselves from the site of treatment or were physically unable to do so. The Court instructed the legislator to adopt legislation for this type of case without delay (cf. BVerfGE 142, 313).

11

The Federal Constitutional Court found that Art. 2(2) first sentence of the Basic Law required the legislator to provide a system of assistance and protection for persons under custodianship who lack the capacity to understand the necessity of medical treatment to prevent or treat serious illness, or cannot act upon such understanding (cf. BVerfGE 142, 313 <338 para. 71>). According to the Court, the best possible compromise must be found in the conflict between the state’s duty of protection arising from Art. 2(2) first sentence of the Basic Law on the one hand and the right to self-determination and to physical integrity of the same fundamental rights holder on the other. The duty of protection takes precedence where persons under custodianship face serious health impairments and the benefits of a medical intervention clearly outweigh its disadvantages and risks, which means that the legislator must provide for the possibility of medical treatment and examination even against the natural will of persons under custodianship (cf. BVerfGE 142, 313 <338 para. 72>). According to the Court’s decision, such coercive medical treatment must be subject to strict substantive and procedural safeguards in order to ensure that the affected freedoms are taken into consideration to the greatest possible extent (cf. BVerfGE 142, 313 <341 para. 78>). The Court further held that coercive medical treatment against someone’s free will is ruled out; this also applies in cases where the free will can be determined based on indications (cf. BVerfGE 142, 313 <340 para. 75, 342 f. paras. 82 f.>).

12

d) According to the Federal Government’s explanatory memorandum to the draft act, § 1906a of the Civil Code (old version) was designed to close the gap in protection identified by the Federal Constitutional Court by no longer restricting the consent to coercive medical treatment to cases of confinement in an institution (cf. BTDrucks 18/11240, pp. 1 f., 13). Instead of requiring such confinement, coercive medical treatment can now be administered in an inpatient hospital setting (cf. BTDrucks 18/11240, p. 15). The legislator did not intend to lift the prohibition on coercive medical treatment outside hospital (cf. BTDrucks 18/11240, p. 15):

‘Coercive medical treatment administered outside hospital conflicts with the principles of modern psychiatry, according to which persons with mental illnesses need support and assistance based on trust rather than state-sanctioned coercion, especially in their home and personal environment. Psychiatric care that is based on trust and aimed at cooperation with the patient without coercion is a key element in avoiding coercion in systems of psychiatric assistance. Any possibility of administering coercive medical treatment outside hospital would run counter to the aim of avoiding coercion in the system of psychiatric assistance to the greatest possible extent. Restricting coercive medical treatment to an inpatient hospital setting also serves to ensure the necessary thorough review of whether the prerequisites for coercive medical treatment are met. This does not just concern the question of whether medical treatment as such is to be administered, but also whether it is necessary and proportionate to administer such treatment through coercion; this means that the capacity to consent, the wishes and will of affected persons pursuant to § 1901a of the Civil Code and any less onerous alternatives available must be considered. Where possible, this review should be carried out by a multi-professional team, including nursing staff (as recommended by the Central Ethics Committee of the German Medical Association in its statement on ‘Coercive medical treatment for persons with mental illnesses’ from April 2013, […]). In addition, the involvement of a clinical ethics advisory service has proven useful in practice. Finally, only inpatient hospital treatment can guarantee the necessary medical or psychological assistance and care of affected persons before and, above all, after treatment in the individual case.’

13

Yet the Bundesrat requested that the decision in favour of the absolute requirement of hospitalisation without exception be reviewed in the course of the legislative process. It argued that the general impermissibility of coercive medical treatment without full hospitalisation led to further gaps in protection or to avoidable and constitutionally objectionable burdens on persons under custodianship created by their hospitalisation (cf. Bundesrat document, Bundesratsdrucksache – BRDrucks 66/17, p. 4):

‘In many cases, coercive medical treatment performed in an inpatient hospital setting will offer the best guarantee that the necessary medical care for the person under custodianship, including any follow-up care, is ensured. However, this does not apply without exception. Especially for persons under custodianship who are in a care home because of advanced dementia, the framework provided for in the draft act would not only result in them being treated against their natural will, but also in them being placed into hospital against their natural will, even if the treatment in question is a largely harmless procedure that is not expected to cause complications. Hospitalisation can then involve much greater burdens than the actual coercive treatment (for example when it comes to the administration of a harmless drug). In individual cases, the change of location and a stay in hospital, where affected persons meet a great number of different patients and doctors, can be considerably more intrusive for them then remaining in the familiar environment of their home, where they are cared for by persons they know. These additional burdens are by no means justified in every case. For example, they lack justification in cases where no further after-effects are to be expected following the treatment in question or the care home can ensure the necessary medical care, including any follow-up care, just as well as the hospital. In those cases, full hospitalisation for the sole purpose of conforming to the guiding principles of the legislator would result in disproportionate burdens for persons under custodianship.’

14

The Federal Government rejected the Bundesrat’s request to review whether coercive medical treatment could be carried out without full hospitalisation, by being administered in another facility in which the medical care of affected persons is ensured. It made the following statement (cf. BTDrucks 18/11617, p. 5 f.):

‘In light of the requirement that coercive medical treatment must only be used as a measure of last resort, the obstacles to coercive medical treatment are not to be lowered. If the possibility of administering coercive medical treatment were extended to include care homes or other facilities, such as specialised outpatient healthcare centres, there would be a risk that instances of coercive medical treatment would increase considerably and that alternatives would not be considered carefully in all cases. Moreover, it is to be assumed that coercive medical treatment can be avoided in many cases by providing support to and earning the trust of residents of care homes who suffer from dementia, mental disability or mental illness in the care home and by taking the time needed to convince them of the necessity of the medical treatment in question. Such efforts would be counteracted if coercive medical treatment in care homes were permitted.

Moreover, the private home of affected persons must be protected. In their homes, affected persons are to receive support based on trust, and not be exposed to coercive measures. Residents of care homes are to enjoy the same protection as those cared for at home.

Restricting coercive medical treatment to an inpatient hospital setting does not lead to additional gaps in protection. Treatment that can be administered outside hospital can be administered just as well in hospital (this was also the Federal Constitutional Court’s view in its order of 26 July 2016 - 1 BvL 8/15).’

15

Following the recommendation of the Legal Affairs and Consumer Protection Committee (cf. BTDrucks 18/12842, p. 3), the Bundestag adopted the draft act in its session of 22 June 2017, with minor amendments to § 1906a(1) first sentence no. 3 and (4) of the Civil Code (old version) (cf. Minutes of plenary proceedings, Plenarprotokoll 18/240, p. 24649). In accordance with Art. 1 no. 3 and Art. 8 of the Act Amending the Substantive Requirements for Coercive Medical Treatment and Strengthening the Right to Self-Determination of Persons under Custodianship of 17 July 2017, § 1906a(1) first sentence no. 7 of the Civil Code (old version) entered into force on 22 July 2017 (cf. BGBl I p. 2426). Art. 7 of the aforementioned Act provided that the Federal Ministry of Justice and Consumer Protection was to assess the practical effects of the changes brought about by the Act three years after its entry into force, in particular with regard to the type and frequency of coercive medical treatment approved or ordered by the custodianship court and the effectiveness of the safeguards in § 1906a of the Civil Code (old version).

16

4. The Act to Revise the Law on Guardianship and Custodianship of 4 May 2021 (entry into force on 1 January 2023, BGBl I p. 882) did not change the content of the provisions at issue here. § 1906a(1) to (4) of the Civil Code (old version) was transferred to § 1832(1) to (4) of the Civil Code (new version); only minor changes were made to the wording of the provision by deleting the term ‘well-being of the person under custodianship’ in § 1832(1) first sentence no. 1 of the Civil Code (new version) (cf. BTDrucks 19/24445, p. 261). § 1906a(5) of the Civil Code (old version) is now contained, without any changes to its contents, in §1820(2) no. 3 of the Civil Code (new version) (cf. BTDrucks 19/24445, p. 261). § 1906(1) to (3) of the Civil Code (old version) is now contained in § 1831(1) to (3) of the Civil Code (new version); again, only minor changes were made to the wording of the provision by deleting the term ‘well-being of the person under custodianship’ in the introductory sentence of § 1831(1) of the Civil Code (new version) (cf. BTDrucks 19/24445, p. 261). The prerequisites in § 1814(1) and (4) first sentence of the Civil Code (new version) for the appointment of a (legal) custodian for an adult essentially correspond to the prerequisites in § 1896(1) first sentence of the Civil Code (old version) (cf. BTDrucks 19/24445, p. 230 f.). Unlike § 1896(1) first sentence of the Civil Code (old version), the first prerequisite set forth in § 1814(1) of the Civil Code (new version) is that the adult in question is incapable of taking care of their affairs. It is not the medical diagnosis of an illness or disability that serves as the primary constituent element, but the individual and objective need for support, which must be determined for the specific case. Moreover, the lack of capacity to take care of one’s affairs is now restricted by the specification that an adult may not be ‘legally’ capable to do so. The constituent elements only make reference to an illness or disability to avoid discrimination. This reference is not meant to change the potential group of persons for whom custodianship may be considered (cf. BTDrucks 19/24445, pp. 230 f., 234).

17

5. An ‘Evaluation of the Act Amending the Substantive Requirements for Coercive Medical Treatment and Strengthening the Right of Self-Determination of Persons under Custodianship of 17 July 2017’ ([…]), commissioned by the Federal Ministry of Justice in 2022 and submitted on 31 January 2024, did not identify any need for amending § 1832(1) first sentence no. 7 of the Civil Code (new version). Coercive medical treatment was only administered outside confinement in exceptional cases. According to the evaluation, no cases had been identified in which the mere fact that treatment had been administered in hospital had resulted in health risks for affected persons ([…]). An analysis of case files also showed that the vast majority of those affected had been diagnosed with schizophrenia, schizotypal and delusional disorders (F20–F29 ICD-10-GM version 2024) ([…]). In approximately 50% of the cases observed, approval by the custodianship court was granted in injunctive proceedings ([…]).

II.

18

1. In the initial proceedings from which the referral arose, the person concerned, who has serious mental illnesses, challenges the custodianship court’s failure to approve the administration of a neuroleptic drug – a form of coercive medical treatment – in the housing group where she resides, rather than in hospital.

19

a) The person concerned was born in 1963. She suffers from paranoid schizophrenia and residual schizophrenia. She has been under custodianship since 2000, including with regard to health matters and the determination of her place of residence. Since 2008, the person concerned has been confined in a housing group, most recently on the basis of § 1906(1) no. 1 and (2) first sentence of the Civil Code (old version), with intermittent periods of hospitalisation. She refuses the long-term neuroleptic medication that specialist doctors consider necessary. Following the consent given by her custodian and approved by the custodianship court, she was regularly coercively administered neuroleptics in a hospital (LWL-Klinik) close to the housing group where she resides. In these instances, the custodianship court approved her confinement in the hospital in question and authorised the competent authority to place her into hospital, if necessary with the use of force, upon the custodian’s request.

20

b) By letter dated 11 August 2022, the professional custodian requested ‘the approval of the coercive medical treatment [of the person concerned] through intramuscular injection of up to 4 ml of Haldol Decanoate for 28 days […] on the ward [of the housing group where she resides] as an equivalent to hospital treatment for a period of six weeks’. He continued: ‘Alternatively, in the event that the equivalent to hospital treatment is not approved, I request confinement for this treatment in the LWL-Klinik […] or another closed institution for a period of six weeks.’ The reasons he gave for his applications were that the regular transfers to hospital, which had become necessary in the past and during which physical restraints and a spit mask had to be used for transport, had regularly re-traumatised the person concerned. This could be prevented by providing an equivalent to hospital treatment in her home environment.

21

c) By order of 20 September 2022, the custodianship court rejected the main application requesting the approval of coercive medical treatment in the housing group where the person concerned resides. It approved the alternative application for coercive treatment of the person concerned while confined in hospital as an inpatient until 1 November 2022 at the latest. The Regional Court rejected the complaint against failure to approve the main application by order of 20 October 2022 and allowed a complaint on points of law (Rechtsbeschwerde). The court held that the prerequisites of § 1906a(1) first sentence nos. 1 to 6 of the Civil Code (old version) for approval of coercive medical treatment had been met. However, based on the clear wording of § 1906a(1) first sentence no. 7 of the Civil Code (old version), coercive drug treatment was only permissible in an inpatient hospital setting. According to the court, § 1906a(1) first sentence no. 7 of the Civil Code (old version) could not be interpreted to mean that coercive drug treatment was also permissible outside hospital in a closed facility, as this would exceed the limits of permissible interpretation. The person concerned lodged a complaint on points of law against the decision of the Regional Court of 20 October 2022. She applied for a declaration that the decisions of the custodianship court of 20 September 2022 and of the Regional Court of 20 October 2022 violated her rights.

22

2. By order of 8 November 2023, the Federal Court of Justice suspended the proceedings in accordance with Art. 100(1) first sentence of the Basic Law and § 13 no. 11 and § 80(1) of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz – BVerfGG) and referred to the Federal Constitutional Court the question of whether it is incompatible with the state’s duty of protection following from Art. 2(2) first sentence of the Basic Law that § 1906a(1) first sentence no. 7 of the Civil Code (old version) provides that a custodian may only consent to coercive medical treatment if it is administered in hospital even for persons who, from a medical perspective, could also undergo such coercive medical treatment in the facility in which they reside, provided that this facility can ensure the necessary medical treatment, including any follow-up care, and their health is negatively affected by being placed into hospital for coercive medical treatment.

23-43

[…]

III.

44

Statements on the judicial review proceedings were submitted by the Federal Government, the Bavarian Land Government, the Senate of the Free and Hanseatic City of Hamburg, the Hessian Land Government, the Land Government of Lower-Saxony, the Land Government of North Rhine-Westphalia, the Land Government of Saarland, the Land Government of Saxony, the German Medical Association (Bundesärztekammer, Arbeitsgemeinschaft der deutschen Ärztekammern), the National Association of Public Health Insurance Funds (GKV-Spitzenverband), the Conference of Custodianship Courts (Betreuungsgerichtstag e.V.), the Federal Working Group of Independent Welfare Organisations (Bundesarbeitsgemeinschaft der Freien Wohlfahrtspflege e.V.), the Federal Working Group for Self-Help for People with Disabilities and Chronic Illnesses and their Family Members (Bundesarbeitsgemeinschaft Selbsthilfe von Menschen mit Behinderung und chronischer Erkrankung und ihren Angehörigen e.V.), the Federal Association of Professional Custodians (Bundesverband der Berufsbetreuer*innen e.V.), the Umbrella Association for Municipal Psychiatric Care (Dachverband Gemeindepsychiatrie e.V.), the German Association for Psychiatry, Psychotherapy and Psychosomatics (Deutsche Gesellschaft für Psychiatrie und Psychotherapie, Psychosomatik und Nervenheilkunde e.V.), the German Association for Social Psychiatry (Deutsche Gesellschaft für Soziale Psychiatrie e.V.), the German Association for Behavioural Therapy – Professional Association for Psycho-Social Professions (Deutsche Gesellschaft für Verhaltenstherapie – Berufsverband Psychosoziale Berufe e.V.) and the German Association of Judges (Deutscher Richterbund, Bund der Richterinnen und Richter, Staatsanwältinnen und Staatsanwälte e.V.). The parties in the initial proceedings were given the opportunity to submit statements.

45

With the exception of the National Association of Public Health Insurance Funds, a comprehensive catalogue of questions was sent to the bodies who were given the opportunity to submit a statement; the catalogue included questions on case numbers, groups of affected persons, types and approval rates of coercive medical treatment, the practical implementation of coercive drug treatment, the effects of (coercive) hospitalisation for affected persons, the effects of a potential option to administer coercive medical treatment in care homes, comparable facilities or the affected person’s home, and on findings regarding the implementation of coercive medical treatment outside hospital in other (European) countries.

46-62

[…]

IV.

63

At the oral hearing on 16 July 2024, the Federal Government made use of the opportunity to make a statement, which had been given to all parties entitled to submit a statement and to the parties to the initial proceedings. The Federal Court of Justice, the Conference of Custodianship Courts, the Federal Working Group for Self-Help for People with Disabilities and Chronic Illnesses and their Family Members, the German Medical Association, the Federal Association of Professional Custodians, the Umbrella Association for Municipal Psychiatric Care, the German Association for Psychiatry, Psychotherapy and Psychosomatics, the German Association for Behavioural Therapy – Professional Association for Psycho-Social Professions and the German Association of Judges were heard as expert third parties in accordance with § 27a of the Federal Constitutional Court Act.

B.

64

The referral from the Federal Court of Justice is admissible.

I.

65-72

[…]

II.

73-82

[…]

III.

83

Under the relevant standards (see 1. below), the question raised in the referral, which only concerns some of the cases in which the provision under review applies (see 2. below), must be expanded in view of the conciliatory function of specific judicial review proceedings (see 3. below).

84

1. In specific judicial review proceedings under Art. 100(1) first sentence, second alternative of the Basic Law, the Federal Constitutional Court generally only reviews legislation on the basis of the Basic Law to the extent that the decision to be rendered in the initial proceedings hinges on its validity (cf. BVerfGE 117, 272 <291 f.>; 122, 151 <180>; 126, 369 <387>; 145, 106 <140 para. 95>). Yet in view of the conciliatory function of judicial review proceedings, the Court can expand the question raised in the referral to other cases in which the provision referred for review applies (cf. BVerfGE 132, 302 <316 para. 39>; 135, 1 <12 paras. 33 f.>).

85

2. The question raised in the referral is limited in several respects: both with regard to the circumstances of the person concerned and with regard to the type of treatment to be administered instead of inpatient hospital treatment. The question concerns persons under custodianship who are in confinement and who, from a medical perspective, could also undergo coercive medical treatment in the facility in which they reside as an equivalent to inpatient hospital treatment within the meaning of § 39(1) fourth and fifth sentence of the Fifth Book of the Code of Social Law (Fünftes Sozialgesetzbuch – SGB V), provided that this facility can ensure the necessary medical treatment, including any follow-up care, and whose health, based on a prognosis made at the time of review whether the prerequisites of § 1906a(1) first sentence no. 7 of the Civil Code (old version) are met, will likely be negatively affected by being placed into hospital for coercive medical treatment.

86-89

[…]

90

3. Yet in view of the conciliatory function of judicial review proceedings, the question raised in the referral must be expanded to include persons under custodianship who are not in confinement and to include, in addition to treatment equivalent to hospital treatment within the meaning of § 39(1) fourth and fifth sentence of the Fifth Book of the Code of Social Law, all alternative forms of treatment that come close to meeting hospital standards with regard to the specific medical treatment necessary, including any follow-up care. Moreover, the referral must also be expanded to all cases in which the likely impairment to physical integrity does not result from the placement into hospital of persons under custodianship within the meaning of § 1906a(4) of the Civil Code (old version), but in which it results from the coercive medical treatment being administered in an inpatient hospital setting within the meaning of § 1906a(1) first sentence no. 7 of the Civil Code (old version). In these cases, too, the question raised as to the constitutionality of the provision under review arises.

IV.

91

To that extent, the Federal Constitutional Court will review § 1906a(1) first sentence no. 7 of the Civil Code (old version) with regard to all relevant aspects under constitutional law, regardless of whether these have been raised in the order of referral (cf. BVerfGE 3, 187 <196 f.>; 141, 1 <14 f. para. 31>; 153, 358 <376 para. 39> – Pension sharing following divorce – external division). In respect of the standard of review, the Court is not bound by the order of referral (cf. BVerfGE 126, 369 <388>; 133, 1 <12 para. 41>; 141, 1 <15 para. 31>).

C.

92

§ 1906a(1) first sentence no. 7 of the Civil Code (old version) is incompatible with Art. 2(2) first sentence, second alternative of the Basic Law insofar as persons under custodianship will, in individual cases based on an ex ante assessment, likely face serious impairments to their physical integrity due to the absolute requirement that coercive medical treatment must be administered in an inpatient hospital setting without exception and it is to be expected that these impairments can be avoided, or at least significantly reduced, if the coercive medical treatment is administered in the facility where they reside and this facility comes close to meeting hospital standards with regard to the specific medical treatment necessary, including any follow-up care, and it is not to be expected that treatment in this facility will result in affected persons facing other impairments to their physical integrity or other interest of comparable weight that is protected by fundamental rights.

93

The provision is formally constitutional (see I. below). It affects the scope of protection of Art. 2(2) first sentence, second alternative of the Basic Law (see II. below). The requirement that coercive medical treatment must be administered in an inpatient hospital setting without exception is not justified under constitutional law (see III. below).

I.

94

§ 1906a(1) first sentence no. 7 of the Civil Code (old version) is formally constitutional.

95

1. The Federation’s legislative competence to enact the legislation under review is derived from Art. 74(1) no. 1 of the Basic Law for civil law. […]

96

2. The provision satisfies the requirement that the affected fundamental right be expressly specified (Zitiergebot) under Art. 19(1) second sentence of the Basic Law.

97

a) Art. 19(1) second sentence of the Basic Law requires that a law state the fundamental right that is restricted or can be restricted by this law, specifying the relevant article (cf. BVerfGE 64, 72 <79>; 130, 151 <204>). The requirement that the affected fundamental right be expressly specified serves to protect those fundamental rights which are subject to a limitation clause provided for in the Basic Law, and which can therefore be restricted beyond the limits inherent in the respective fundamental right itself. This requirement distinguishes such restrictions of fundamental rights from other legislation that impacts fundamental rights and is enacted by the legislator in the execution of its legislative duties, the determination of contents or the setting of limits provided for under the respective fundamental right. The requirement that the affected fundamental right be expressly specified is not applicable to the latter type of legislation (cf. BVerfGE 64, 72 <79 f.>; 162, 378 <417 para. 92> – Proof of vaccination <measles>). The requirement that the affected fundamental right be expressly specified serves as a warning and encourages reflection; it is meant to ensure that the legislator is aware of any interferences with fundamental rights resulting from its legislation and that it accounts for the effects on affected fundamental rights (cf. BVerfGE 120, 274 <343>; 129, 208 <236 f.>; 154, 152 <237 para. 135> – Federal Intelligence Service – Surveillance of foreign telecommunications). In light of this, fundamental rights that are indirectly restricted without being targeted need not be specified (cf. BVerfGE 28, 36 <46>; 28, 55 <62>). This is because extending the requirement that the affected fundamental right be expressly specified to such restrictions would typically result in the precautionary listing of a number of potentially affected fundamental rights, which would diminish its function to serve as a warning and encourage reflection.

98

b) Based on these standards, it is sufficient for compliance with the aforementioned requirement that Art. 6 of the Act Amending the Substantive Requirements for Coercive Medical Treatment and Strengthening the Right to Self-Determination of Persons under Custodianship of 17 July 2017 specifies that the fundamental rights to physical integrity (Art. 2(2) first sentence, second alternative of the Basic Law) and to liberty of the person (Art. 2(2) second sentence of the Basic Law) – which are subject to the specific limitation clause of Art. 2(2) third sentence of the Basic Law – are restricted by § 1906a of the Civil Code (old version) (cf. BGBl I p. 2426 <2428>). In particular, it was not necessary to also list the right to life under Art. 2(2) first sentence, first alternative of the Basic Law as being restricted. Any potential restrictions of the right to life resulting from § 1906a of the Civil Code (old version) in individual cases would in any case not be targeted and only indirectly restrict this right. They would therefore not be subject to the requirement that the affected fundamental right be expressly specified.

II.

99

Based on the constitutional standards regarding the scope of protection of Art. 2(2) first sentence, second alternative of the Basic Law (see 1. below) and regarding interferences with this scope of protection (see 2. below), which may also take the form of state measures taken to fulfil the state’s duty of protection following from Art. 2(2) first sentence of the Basic Law (see 3. below), § 1906a(1) first sentence no. 7 of the Civil Code (old version) affects the scope of protection of the fundamental right to physical integrity of persons under custodianship who lack the capacity to consent (see 4. below). In terms of their objective and effects, it is functionally equivalent to an interference with this fundamental right in its dimension as a defensive right (see 5. below).

100

1. Art. 2(2) first sentence, second alternative of the Basic Law protects the physical integrity of fundamental right holders and their right to self-determination in this regard (cf. BVerfGE 158, 131 <153 para. 56> – Advance healthcare directive in psychiatric confinement; 161, 299 <345 para. 111> – Proof of vaccination <COVID-19>; 162, 378 <409 para. 69, 412 para. 78, 437 para. 137>). Substantively, the right to self-determination under Art. 2(2) first sentence, second alternative of the Basic Law protects the fundamental right holder’s decision as to whether and how their physical integrity may be interfered with (cf. BVerfGE 142, 313 <339 f. paras. 74 ff.>; 153, 182 <261 para. 208, 264 f. paras. 212 f.> – Assisted suicide). This right to self-determination guarantees that fundamental rights holders with the capacity for insight and judgment (hereinafter: capacity to consent) in principle have the right to freely decide on interferences with their physical integrity; their decisions do not have to be reasonable from an objective perspective (cf. BVerfGE 161, 299 <345 para. 111>; 162, 378 <437 para. 137, 440 f. para. 144>). In principle, the right also protects the self-determination in respect of physical integrity arising from the natural will of fundamental right holders who lack the capacity to consent (cf. BVerfGE 128, 282 <300>; 158, 131 <152 f. para. 56>; 162, 378 <409 para. 69, 437 para. 137, 440 f. para. 144>). However, the protection of the right to self-determination of persons under custodianship who lack the capacity to consent is not as strong as the protection of the right to self-determination of persons under custodianship who have that capacity (cf. BVerfGE 142, 313 <340 paras. 75 ff., 343 para. 83>; 158, 131 <155 f. para. 64, 158 ff. paras. 69 ff.>; 162, 378 <441 para. 144>).

101

2. The protection of Art. 2(2) first sentence, second alternative of the Basic Law is not limited to formally legal (final) interferences that are direct and targeted and which result from a requirement or prohibition imposed by the state that must be given effect through the use of force where necessary, i.e. that are imperative (cf. BVerfGE 105, 279 <300>; 161, 299 <345 para. 113>; 162, 378 <409 f. para. 72, 413 f. paras. 80 f.>). State measures that do not meet these criteria, but are functionally equivalent to such interference in terms of their objective and effects, must be considered as an interference (cf. BVerfGE 161, 299 <345 para. 113>; 162, 378 <409 f. para. 72, 413 f. paras. 80 f.>). This can be the case in particular where the state brings about impairments to someone’s physical integrity in a formally legal and targeted manner, but does so indirectly through the involvement of a private third party (cf. BVerfGE 10, 302 <327>; 161, 299 <346 para. 114>). It can also be the case where the state undertakes shared responsibility for any impairments to the right to self-determination and physical integrity resulting from the conduct of a private third party through a formal legal act, such as through an approval decision (cf. BVerfGE 51, 324 <346, 348 f.>; 53, 30 <58>; 66, 39 <59>). By contrast, impairments to physical integrity brought about indirectly by a state measure that are merely an unintended side effect of a law with a different objective are not functionally equivalent to an interference with Art. 2(2) first sentence, second alternative of the Basic Law (cf. BVerfGE 161, 299 <346 para. 114>; 162, 378 <410 para. 72>).

102

Measures can amount to interference with Art. 2(2) first sentence, second alternative of the Basic Law regardless of whether they are aimed at causing harm. Therefore, impairments to physical integrity can amount to interference even though they serve curative purposes (cf. BVerfGE 128, 282 <300>; 142, 313 <339 f. para. 74>; 158, 131 <153 para. 57>).

103

3. Interferences with physical integrity brought about by state measures that serve to fulfil the state’s duty of protection for third parties or the affected fundamental right holder must also be measured against Art. 2(2) first sentence, second alternative of the Basic Law in its dimension as a defensive right (cf. BVerfGE 115, 118 <160>; 142, 313 <340 f. para. 78, 342 f. para. 82>). The means used to fulfil the state’s duty of protection must be compatible with the Constitution (cf. BVerfGE 115, 118 <160>).

104

In the present case, such a duty of protection follows from Art. 2(2) first sentence of the Basic Law. Under that provision, the state is obliged to provide protection to vulnerable persons who are under custodianship for health matters and who, in cases where there is a risk of considerable impairments to their health, lack the capacity to understand the necessity of medical treatment or to act upon such understanding; where necessary, the state must provide this protection, in the form of medical care, even against the natural will of the person concerned (cf. BVerfGE 142, 313 <336 para. 67>; 158, 131 <155 f. para. 64>). According to the Federal Constitutional Court’s case-law, in respect of persons under custodianship who, due to mental illness or due to mental or psychological disability, lack the capacity to understand the necessity of medical treatment or the capacity to act upon such understanding, the general duty of protection consolidates, under certain narrow conditions, into a specific duty to provide for a system of assistance and protection for such persons. In serious cases, it must then be possible for doctors, as a last resort, to examine and treat persons under custodianship, even if this entails having to override the opposing natural will of the persons concerned (cf. BVerfGE 142, 313 <338 para. 71>; 158, 131 <156 para. 64>). In cases in which serious health impairments, including a danger to life, can be averted through treatment that does not amount to excessively intrusive interference and that has good prospects of success, the legislator must provide for the possibility of coercive medical treatment for persons under custodianship who lack the capacity to consent (cf. BVerfGE 142, 313 <341 f. para. 80>; 158, 131 <156 para. 64>). International law, in particular the European Convention on Human Rights and the United Nations Convention on the Rights of Persons with Disabilities, do not conflict with this duty of the state (cf. BVerfGE 128, 282 <306 f.>; 142, 313 <345 ff. paras. 87 ff.>).

105

4. Based on these standards, § 1906a(1) first sentence no. 7 of the Civil Code (old version) affects the scope of protection of Art. 2(2) first sentence, second alternative of the Basic Law in several ways. The challenged provision, read in conjunction with § 1906a(1) first sentence nos. 1 to 6 of the Civil Code (old version) affects the right to self-determination in respect of physical integrity of persons under custodianship who lack the capacity to consent. In case such a person opposes coercive medical treatment, this provision allows for their natural will to be overridden by way of the custodian’s consent, which, under § 1906a(2) of the Civil Code (old version), requires approval by the custodianship court to be effective. The right to self-determination is further restricted by the possibility, created by § 1906a(1) first sentence no. 7 in conjunction with § 1906a(1) first sentence nos. 1 to 6 of the Civil Code (old version), to use the custodian’s consent that is approved by the custodianship court in order to override a potential natural will of a person under custodianship who lacks the capacity to consent and specifically opposes coercive medical treatment administered in an inpatient hospital setting. Finally, besides the aspect of self-determination, § 1906a(1) first sentence no. 7 in conjunction with § 1906a(1) first sentence nos. 1 to 6 of the Civil Code (old version) also affects the scope of protection of Art. 2(2) first sentence, second alternative of the Basic Law with regard to the physical integrity of persons under custodianship who lack the capacity to consent, at least insofar as impairments to physical integrity are permitted for curative purposes in the context of coercive medical treatment. The scope of protection of Art. 2(2) first sentence, second alternative of the Basic Law is affected regardless of whether affected persons are additionally placed into hospital against their natural will in order to be administered coercive medical treatment (cf. § 1906a(4) in conjunction with § 1906(1) no. 2 and (2) of the Civil Code, old version), or whether such placement into hospital even requires the use of force (cf. § 326(1), (2) first sentence in conjunction with § 312 no. 3 Act on Proceedings in Family Matters and in Matters of Non-Contentious Jurisdiction, Gesetz über das Verfahren in Familiensachen und in den Angelegenheiten der freiwilligen Gerichtsbarkeit – FamFG).

106

5. The impairments to physical integrity resulting from § 1906a(1) first sentence no. 7 in conjunction with § 1906a(1) first sentence nos. 1 to 6 of the Civil Code (old version) must be considered as an interference with the scope of protection of Art. 2(2) first sentence, second alternative of the Basic Law.

107

It is true that the statutory provisions do not, in individual cases, directly override the natural will of persons under custodianship who lack the capacity to consent and oppose coercive medical treatment in an inpatient hospital setting; nor do they directly impair the physical integrity of persons under custodianship who lack the capacity to consent for curative purposes. Nevertheless, in terms of their objective and effects, § 1906a(1) first sentence no. 7 of the Civil Code (old version) in conjunction with § 1906a(1) first sentence nos. 1 to 6 and § 1906a(2) of the Civil Code (old version) are functionally equivalent to an interference with Art. 2(2) first sentence, second alternative of the Basic Law. In the individual case, the natural will of a person under custodianship who lacks the capacity to consent is directly overridden by the custodian’s consent to coercive medical treatment in an inpatient hospital setting (§ 1906a(1) first sentence Civil Code, old version) and by the approval of this consent by the custodianship court (§ 1906a(2) Civil Code, old version). With § 1906a(1) and (2) of the Civil Code (old version), the state aims to override such will in a formally legal manner, exercising its duty of protection vis-à-vis persons under custodianship who lack the capacity to consent – a duty following from Art. 2(2) first sentence of the Basic Law (cf. BTDrucks 18/11240, p. 12); the state deliberately involves the custodian to this end. Finally, in terms of its objective and effects, the challenged provision is also tantamount to an interference with the physical integrity of persons under custodianship who lack the capacity to consent, because in formal legal terms, it requires that a custodianship court approve the consent in each case of coercive medical treatment without exception (§ 1906a(2) Civil Code, old version), thereby providing that the state undertakes shared responsibility for any impairments to the right to self-determination and physical integrity that indirectly result from the custodian’s consent and the coercive medical treatment carried out by private third parties.

III.

108

The interference with the scope of protection of Art. 2(2) first sentence, second alternative of the Basic Law resulting from § 1906a(1) first sentence no. 7 of the Civil Code (old version) is not justified under constitutional law insofar as persons under custodianship will likely face serious impairments to their physical integrity due to the absolute requirement that coercive medical treatment must be administered in an inpatient hospital setting without exception and it is to be expected that these impairments could be avoided, or at least significantly reduced, if the coercive medical treatment is administered in the facility where they reside and this facility comes close to meeting hospital standards with regard to the specific medical treatment necessary, including any follow-up care, and it is not to be expected that treatment in this facility will result in affected persons facing other impairments to their physical integrity or other interest of comparable weight that is protected by fundamental rights. It is true that the fundamental right to physical integrity of persons under custodianship who lack the capacity to consent is interfered with ‘pursuant to a law’ within the meaning of Art. 2(2) third sentence of the Basic Law and that this interference satisfies the requirements arising from the principle that interferences have a sufficient statutory basis (requirement of a statutory provision, Gesetzesvorbehalt) (see 1. below). The legislator pursues constitutionally legitimate purposes with the challenged provision (see 2. below), and the provision is suitable (see 3. below) and necessary (see 4. below) under constitutional law for achieving these purposes. Nevertheless, the requirement that coercive medical treatment must be administered in an inpatient hospital setting without exception is disproportionate in the strict sense insofar as it also applies in the aforementioned cases (see 5. below).

109

1. § 1906a(1) first sentence no. 7 of the Civil Code (old version) is compatible with the limitation clause of Art. 2(2) third sentence of the Basic Law and with the requirement of a statutory provision.

110

Art. 2(2) third sentence of the Basic Law only permits interfering with the fundamental right to physical integrity ‘pursuant to a law’. In relation to the fundamental right to physical integrity protected by Art. 2(2) first sentence, second alternative of the Basic Law, Art. 2(2) third sentence of the Basic Law imposes a simple limitation clause (cf. BVerfGE 161, 299 <346 para. 115>; 162, 378 <414 para. 83>). At the same time, the principle of democracy (Art. 20(1) and (2) of the Basic Law) and the principle of the rule of law (Art. 20(3) of the Basic Law) require that the legislator itself decide essential matters. Firstly, ‘essential’ means ‘essential for the exercise of fundamental rights’. In certain situations, it may be incumbent upon the legislator itself to provide the necessary guidance for the area of life in question. This may be the case, for example, where competing freedoms conflict with one another and their boundaries are fluid and difficult to discern. Secondly, the legislator is required to determine those matters that are of significance for state and society (cf. BVerfGE 161, 299 <349 para. 125>; 162, 378 <418 para. 95>).

111

§ 1906a(1) first sentence no. 7 in conjunction with § 1906a(1) first sentence nos. 1 to 6 and § 1906a(2) of the Civil Code (old version) satisfies these requirements. It does not conflict with the limitation clause of Art. 2(2) third sentence of the Basic Law that the statutory provision does not directly interfere with the scope of protection of physical integrity as such, but only does so indirectly with the involvement of third parties (see para. 106 above) (cf. BVerfGE 159, 223 <341 para. 272>; 161, 299 <346 paras. 114 f., 349 ff. paras. 124 ff.>). In determining the site where coercive medical treatment may be administered in § 1906a(1) first sentence no. 7 of the Civil Code (old version), the legislator itself provided the guidance necessary for the area of life in question.

112

2. The legislator pursues constitutionally legitimate purposes with the requirement, set out in § 1906a(1) first sentence no. 7 of the Civil Code (old version), that coercive medical treatment must be administered in an inpatient hospital setting without exception.

113

a) Where interferences with fundamental rights occur by law or pursuant to a law, such interferences may only be justified if the legislator is pursuing constitutionally legitimate purposes. It falls to the Federal Constitutional Court to review whether this is the case. In this respect, the Court is not limited to considering only the purposes expressly named by the legislator itself (cf. BVerfGE 159, 223 <298 para. 169> with further references – Federal pandemic emergency brake I <curfews and contact restrictions>; 161, 163 <269 para. 291>; 163, 107 <138 paras. 85 f.> – Veterinary prescription requirement; 167, 163 <212 f. para. 115>). The statutory purpose is typically derived from the objective intent of the legislator (cf. BVerfGE 157, 223 <263 para. 106>; 161, 63 <93 para. 57> – Wind farm participatory companies; 167, 163 <213 para. 115>). Objective intent is to be determined by recognised methods of legal interpretation, i.e. based on the wording, the legislative materials and legislative history, the systematic approach and the spirit and purpose. These methods are not mutually exclusive, but instead complement one another (cf. BVerfGE 157, 223 <263 para. 106>; 161, 63 <93 para. 57>; 167, 163 <213 para. 115>). Based thereon, purposes that must be taken into account in constitutional review are in particular – but not exclusively – those that are plausible based on the legislator’s intent or that have been named by the organs involved in the legislative process during the proceedings before the Federal Constitutional Court (cf. BVerfGE 163, 107 <139 para. 87> with further references; 167, 163 <213 para. 115>). By contrast, unnamed purposes or purposes that only came into play after the law was adopted cannot be taken into account where such purposes would fail to meet or would distort essential aspects of the clear legislative objective (cf. BVerfGE 167, 163 <213 para. 115>).

114

In principle, any public interest that is not precluded by constitutional law can be legitimate. Which purposes are to be considered legitimate also depends on the fundamental right that is subject to interference (cf. BVerfGE 124, 300 <331>).

115

The Federal Constitutional Court has recognised that fulfilling the state’s duty of protection following from Art. 2(2) first sentence of the Basic Law vis-à-vis persons under custodianship who lack the capacity to consent in principle constitutes a legitimate purpose for an interference with the right to physical integrity of such persons protected by Art. 2(2) first sentence, second alternative of the Basic Law (cf. BVerfGE 142, 313 <338 ff. paras. 71 ff.>; 158, 131 <155 f. para. 64>). This duty obliges the state to provide protection, in the form of medical care, to vulnerable persons who either lack the capacity to understand the necessity of medical treatment or to act upon such understanding when there is a risk of considerable impairments to their health; under strict conditions and as a last resort, the state must provide this protection even against the natural will of the persons concerned (cf. BVerfGE 142, 313 <336 para. 67, 338 para. 71, 340 f. para. 78>; 158, 131 <155 f. para. 64>). In cases in which serious health impairments, including a danger to life, can be averted through treatment that does not amount to an excessively intrusive interference and that has good prospects of success, the legislator must provide for the possibility of coercive medical treatment for persons under custodianship who lack the capacity to consent (cf. BVerfGE 142, 313 <341 f. para. 80>; 158, 131 <156 para. 64>). Another constitutionally legitimate purpose recognised in the Federal Constitutional Court’s case-law is to safeguard the principle that such coercive medical treatment must only be used as a measure of last resort, which is subject to stricter requirements (cf. BVerfGE 142, 313 <338 ff. paras. 71 ff.>; 158, 131 <157 ff. paras. 67 ff.>), as well as to protect those affected against particular risks involved in the coercive medical treatment (cf. BVerfGE 142, 313 <342 para. 80>). Insofar as it is possible to administer coercive medical treatment, in consideration of the requirement that such treatment must only be used as a measure of last resort, a recognised legitimate purpose is to safeguard the greatest possible respect for the – subordinated – fundamental right under Art. 2(2) first sentence, second alternative of the Basic Law of those affected (cf. BVerfGE 142, 313 <340 f. para. 78, 342 para. 82>), and in particular to ensure proper medical care by qualified medical professionals (cf. BVerfGE 158, 131 <157 para. 68> with further references). In light of the guarantee of Art. 13(1) of the Basic Law, the protection of a basic living space where fundamental rights holders are left alone is a constitutionally legitimate purpose (cf. BVerfGE 139, 245 <265 para. 56>; 165, 1 <70 para. 130> – Police powers under the Security and Public Order Act for Mecklenburg-Western Pomerania).

116

b) Based thereon, the legislator pursues a constitutionally legitimate purpose with § 1906a(1) first sentence no. 7 of the Civil Code (old version), which is to guarantee substantive and procedural safeguards regarding the exercise of its duty of protection following from Art. 2(2) first sentence of the Basic Law in providing for the possibility of administering coercive medical treatment to persons under custodianship who lack the capacity to consent in cases in which serious health impairments, including a danger to life, can be averted through treatment that does not amount to excessively intrusive interference and that has good prospects of success. These safeguards are based on duties of protection following from fundamental rights; they include protecting affected persons from coercive measures in their home (see aa) below), having multi-professional teams review whether the prerequisites for coercive medical treatment are met (see bb) below), preventing the administration of unnecessary coercive medical treatment that is based on misguided incentives (see cc) below), and ensuring proper medical care for affected persons (see dd) below).

117

aa) According to the explanatory memorandum to the draft act, § 1906a(1) first sentence no. 7 of the Civil Code (old version) primarily serves the purpose of protecting those affected from coercive measures in their home. Affected persons are to receive support based on trust in their home, and not be exposed to coercive measures. Residents of care homes should enjoy the same protection as those cared for at home (cf. BTDrucks 18/11617, p. 6). According to the explanatory memorandum, coercive medical treatment administered outside hospital would conflict with the principles of modern psychiatry, according to which persons with mental illnesses need support and assistance based on trust rather than state-sanctioned coercion, especially in their home and personal environment (cf. BTDrucks 18/11240, p. 15). This legislative objective is legitimate especially with regard to the values reflected in Art. 13(1) of the Basic Law, which guarantees a basic living space in which individuals are left alone in the interest of human dignity and the free development of their personality (cf. BVerfGE 139, 245 <265 para. 56>; 165, 1 <70 para. 130>).

118

bb) According to the explanatory memorandum to the draft act, the requirement of inpatient hospital treatment in § 1906a(1) first sentence no. 7 of the Civil Code (old version) also serves to ensure the required review of whether the prerequisites for coercive medical treatment, in particular with regard to its necessity and proportionality, are met; where possible, such review is to be carried out by a multi-professional team including nursing staff (cf. BTDrucks 18/11240, p. 15). In order to limit coercive medical treatment to the unavoidable minimum in line with the principle of last resort, the duration of hospitalisation is to be such that it allows the responsible doctor and the custodian to thoroughly review whether the prerequisites for the intended treatment are met; this is only possible if the measure is carried out in the form of inpatient hospital treatment (cf. BTDrucks 18/11240, p. 20). This is a legitimate purpose given the state’s duty of protection following from Art. 2(2) first sentence, second alternative of the Basic Law, based on which coercive medical treatment of persons under custodianship who lack the capacity to consent is only permissible under strict substantive conditions and as a last resort (cf. BVerfGE 142, 313 <336 para. 67, 338 para. 71, 340 f. para. 78>; 158, 131 <155 f. para. 64>).

119

cc) According to the explanatory memorandum to the draft act, the requirement, set out in § 1906a(1) first sentence no. 7 of the Civil Code (old version), that coercive medical treatment must be administered in an inpatient hospital setting without exception serves to ensure that sufficient obstacles to coercive medical treatment exist. If the possibility of administering coercive medical treatment were expanded to include care homes or other facilities, such as specialised outpatient healthcare centres, there would be a risk that instances of coercive medical treatment would increase considerably and that alternatives would not be considered carefully in all cases. The explanatory memorandum goes on to state that it is to be assumed that coercive medical treatment can be avoided in many cases if care homes provide an environment of trust and support for residents who suffer from dementia, mental disability or mental illness and if the necessary time is taken to convince them of the need for the medical treatment in question. Such efforts would be counteracted if coercive medical treatment in care homes were permitted (cf. BTDrucks 18/11617, pp. 5 f.).

120

It follows from all of the foregoing that § 1906a(1) first sentence no. 7 of the Civil Code (old version) pursues the legislative aim of creating legal obstacles that are designed to prevent the premature administration of coercive medical treatment without sufficient consideration of less intrusive alternatives based on misguided incentives, such as saving time and effort (cf. BTDrucks 18/11240, p. 15). Given the state’s duty of protection following from Art. 2(2) first sentence, second alternative of the Basic Law, based on which it must be ensured that coercive medical treatment of persons under custodianship who lack the capacity to consent is only permissible under strict substantive conditions and as a last resort (cf. BVerfGE 142, 313 <336 para. 67, 338 para. 71, 340 f. para. 78>; 158, 131 <155 f. para. 64>), this is a constitutionally legitimate purpose.

121

dd) Finally, according to the explanatory memorandum, only inpatient hospital treatment within the meaning of § 1906a(1) first sentence no. 7 of the Civil Code (old version) can guarantee the necessary medical or psychological support and care before and, above all, after treatment in the individual case (cf. BTDrucks 18/11240, p. 15). The hospital must have the necessary medical equipment to provide an institutional framework for guaranteeing the proper administration of the coercive medical treatment corresponding to the specific needs of affected persons. Moreover, it must be ensured that any follow-up care that might be necessary from a medical perspective can be provided in the hospital. This also includes any psychological support necessary to process the coercive medical treatment. The person under custodianship may not be left alone after the administration of coercive medical treatment if they need further care (cf. BTDrucks 18/11240, p. 20).

122

Based on these considerations, the legislative aim of § 1906a(1) first sentence no. 7 of the Civil Code (old version) clearly is to ensure that persons affected by coercive medical treatment receive proper medical care. This purpose, too, is legitimate under constitutional law given the state’s duty of protection following from Art. 2(2) first sentence, second alternative of the Basic Law, based on which the subordinated fundamental right under Art. 2(2) first sentence, second alternative of the Basic Law must be safeguarded in procedural terms to the greatest possible extent when the possibility of coercive medical treatment of persons under custodianship is provided (cf. BVerfGE 142, 313 <340 f. para. 78, 342 para. 82>; 158, 131 <157 f. para. 68> with further references).

123

3. § 1906a(1) first sentence no. 7 of the Civil Code (old version) is suitable under constitutional law to achieve these legitimate purposes.

124

a) A provision meets the constitutional criterion of suitability for achieving a legitimate purpose if there is a possibility of achieving the legislative purposes with the provision. A provision can only be found to be unsuitable if it cannot in any way further the legislative purpose pursued or if it counteracts this purpose (cf. BVerfGE 158, 282 <336 para. 131> with further references – Interest on back taxes and tax refunds; 161, 63 <114 para. 110>; 167, 163 <217 para. 125>).

125

b) Based on these standards, § 1906a(1) first sentence no. 7 of the Civil Code (old version) is suitable under constitutional law to achieve the legislative aims of protecting affected persons from coercive measures in their homes (see aa) below), having multi-professional teams review whether the prerequisites for coercive medical treatment are met (see bb) below), preventing the administration of unnecessary coercive medical treatment that is based on misguided incentives (see cc) below), and ensuring proper medical care for affected persons (see dd) below).

126

aa) Requiring inpatient hospital treatment in § 1906a(1) first sentence no. 7 of the Civil Code (old version) is a suitable means for protecting the private homes of persons affected by coercive medical treatment. The provision is not rendered unsuitable under constitutional law on the grounds that other, non-medical coercive measures can still be carried out in the homes of persons with mental illness in particular, for example in the form of deprivation of liberty, based on § 1906a(4) of the Civil Code (old version), by means of mechanical devices such as bedrails (cf. BTDrucks 11/4528, pp. 82, 148 f.). This is because § 1906a(1) first sentence no. 7 of the Civil Code (old version) at least contributes to reducing the number of coercive measures carried out in the homes of affected persons.

127

bb) § 1906a(1) first sentence no. 7 of the Civil Code (old version) also meets the constitutional criterion of suitability when it comes to having multi-professional teams review whether the prerequisites of coercive medical treatment are met. It cannot be derived from the provision that affected persons must already be in hospital when the custodian and the custodianship court review whether the prerequisites of coercive medical treatment are met before consenting (§ 1906a(1) first sentence Civil Code, old version) and approving the consent (§ 1906a(2) Civil Code, old version), respectively. Nor does the Act on Proceedings in Family Matters and in Matters of Non-Contentious Jurisdiction contain such a requirement. The submitted statements likewise do not indicate that in practice affected persons are placed into hospital with the aim of reviewing whether the prerequisites of coercive medical treatment are met. While there are cases in which the coercive medical treatment of a patient who is already in hospital is considered and then consented, approved and implemented after all alternatives have been exhausted, there are also cases in which patients are placed in hospital solely for the administration of coercive medical treatment that has previously been consented and approved. The requirement that coercive medical treatment must be administered in hospital without exception therefore cannot contribute to the findings of a multi-professional team being taken into account when the custodian and the custodianship court review whether the prerequisites of coercive medical treatment are met. Nevertheless, the provision is suitable in this regard, given the possibility that the decision, to be taken by the treating medical professionals in hospital, whether coercive medical treatment consented by the custodian and approved by the custodianship court is actually administered, is made with the involvement of multi-professional teams that again review whether the prerequisites for coercive medical treatment are met.

128

cc) The requirement of hospitalisation in all cases without exception is also suitable under constitutional law to prevent unnecessary coercive medical treatment that is based on misguided incentives.

129

It is plausible that the legislator presumes that permitting coercive medical treatment outside hospital could create incentives for care homes and other facilities to make use of coercive medical treatment without thoroughly reviewing alternatives and without trying to convince affected persons of the necessity of the treatment within the meaning of § 1906a(1) first sentence no. 4 of the Civil Code (old version), also in view of the fact that administering coercive medical treatment can indeed require less time and effort in individual cases than the alternatives. Especially when faced with staff shortages and time constraints, those responsible may be tempted to administer coercive medical treatment prematurely so as to avoid an examination as to whether less intrusive alternatives are available, which is time consuming and requires considerable staff resources.

130

Yet this is not sufficient for finding that the provision is suitable in this regard. The treating staff cannot decide alone whether coercive medical treatment is administered in an individual case. In enacting § 1906a(1) first sentence nos. 1 to 6 of the Civil Code (old version), the legislator created further safeguards that only permit coercive medical treatment as an exception; in particular, they only permit such treatment if serious attempts were made – taking the necessary time and without exerting undue pressure – to convince the person under custodianship of the necessity of the treatment in question (§ 1906a(1) first sentence no. 4 Civil Code, old version) and if the anticipated benefit of the coercive medical treatment considerably outweighs the anticipated impairments (§ 1906a(1) first sentence no. 6 Civil Code, old version). Each instance of coercive medical treatment must satisfy these requirements, regardless of where it is administered. At the first stage, the affected person’s custodian ensures that these requirements are met; under the legislative concept of protection, the custodian’s consent is a necessary prerequisite for administering the coercive medical treatment (§ 1906a(1) first sentence Civil Code, old version). At the second stage, the legislative concept provides that the custodianship court review whether the prerequisites of coercive medical treatment are met; without the court’s approval, no coercive medical treatment may be administered (§ 1906a(2) Civil Code, old version). It is not ascertainable that these safeguards could not identify and rule out coercive medical treatment based on misguided incentives. In particular, this cannot be derived from the outcome of the evaluation (see para. 17 above), according to which approximately 50% of approval decisions by custodianship courts were made in injunctive proceedings.

131

Yet even before the custodian and the custodianship court review whether the prerequisites of § 1906a(1) first sentence of the Civil Code (old version) have been met, § 1906a(1) first sentence no. 7 of the Civil Code (old version) can contribute to the reduction of any unnecessary coercive medical treatment that is based on misguided incentives and thus lower the abstract risk of consent to and approval of such treatment. This is because, according to the statements submitted, the requirement of hospitalisation can increase the time and effort needed for the coercive medical treatment in individual cases to such a degree that less intrusive alternatives may appear preferable from the perspective of those in charge in care homes and other facilities. The possibility of reducing unnecessary coercive medical treatment based on misguided incentives in this way is suitable under constitutional law for achieving the aim pursued.

132

dd) § 1906a(1) first sentence no. 7 of the Civil Code (old version) is also suitable under constitutional law to ensure proper medical care of persons affected by coercive medical treatment. The provision expressly sets out that coercive medical treatment must be administered in hospital, where ‘the required medical care for the person under custodianship, including the necessary follow-up treatment, is ensured’. The associated requirements regarding the necessary institutional framework, personnel and resources are specified in the explanatory memorandum to the draft act, according to which it must be ensured that the necessary psychological support and care before and after treatment is available. § 1906a(1) first sentence no. 7 of the Civil Code (old version) thus at least contributes to guaranteeing an appropriate standard of care.

133

4. The requirement, set out in § 1906a(1) first sentence no. 7 of the Civil Code (old version), that coercive medical treatment must be administered in an inpatient hospital setting without exception is also necessary under constitutional law to achieve the purposes pursued.

134

a) A provision meets the constitutional criterion of necessity if no equally effective means is available to achieve the legislative objective that would be less intrusive for fundamental rights holders and would not entail greater burdens for third parties or the general public. In this regard, it must be clearly established that the alternative measures are equally effective for achieving the desired objective in every respect (cf. BVerfGE 161, 299 <378 para. 187>; 162, 378 <428 para. 117>; 166, 1 <63 para. 139>; established case-law).

135

With regard to coercive medical treatment of persons under custodianship who lack the capacity to consent, carried out to fulfil the state’s duty of protection under Art. 2(2) first sentence of the Basic Law for these persons, the Federal Constitutional Court found that such treatment may only be used as a last resort and only if less intrusive measures are not (or no longer) an option and treatment that interferes less severely with the fundamental rights of the person concerned would be futile (cf. BVerfGE 158, 131 <157 para. 67>).

136

b) Based on these standards, § 1906a(1) first sentence no. 7 of the Civil Code (old version) is necessary under constitutional law to achieve the aforementioned purposes.

137

The requirement that coercive medical treatment must be administered in an inpatient hospital setting without exception is necessary to achieve the legislative aims. It is not ascertainable that alternative measures are available that are less intrusive for affected persons and do not entail a greater burden for third parties or the general public while being equally effective in achieving the purposes of § 1906a(1) first sentence no. 7 of the Civil Code (old version), which are: to protect affected persons from coercive measures in their home, to have multi-professional teams review whether the prerequisites for coercive medical treatment are met, to prevent the administration of unnecessary coercive medical treatment that is based on misguided incentives, and to ensure proper medical care. In particular, the theoretical possibility of allowing for coercive medical treatment to be administered in doctor’s practices or other facilities where affected persons do not live would not be equally effective, because it is not clear that these facilities guarantee the same standard of care as hospitals, in particular the equipment necessary in case of complications, including unpredictable ones. The theoretical possibility of having multi-professional teams review whether the prerequisites for coercive medical treatment are met independent of the site of treatment would not be equally effective either. In its statement ([…]), the National Association of Public Health Insurance Funds addressed psychiatric treatment that is equivalent to hospital treatment but is provided in a domestic setting by multi-professional care teams led by doctors (cf. § 39(1) fourth and fifth sentence Fifth Book of Social Law as amended by the Act on the Further Development of Provision and Remuneration of Psychiatric and Psychosomatic Care of 19 December 2016, BGBl I p. 2986). It stated that such treatment fell short of inpatient hospital treatment as regards its intensity and multi-professional dimension, meaning that it cannot be clearly established, for lack of indications in this regard, that such an alternative, or other forms of treatment, would be equally effective to achieve the purposes pursued.

138

5. The interference with the scope of protection of Art. 2(2) first sentence, second alternative of the Basic Law resulting from § 1906a(1) first sentence no. 7 of the Civil Code (old version) is not appropriate in every respect (cf. para. 108).

139

a) For a measure to meet the constitutional criterion of appropriateness, and thus proportionality in the strict sense, the purpose pursued by the measure, and its likelihood of achieving that purpose, may not be disproportionate to the severity of the interference (cf. BVerfGE 155, 119 <178 para. 128> – Subscriber data II; 161, 299 <384 para. 203>; 166, 1 <71 para. 155>). A legal provision is appropriate, and thus proportionate in the strict sense, when, in an overall balancing of the severity of the interference on the one hand, and the weight and urgency of the reasons invoked as justification on the other hand, the limits of what is reasonable are observed (cf. BVerfGE 141, 82 <100 f. para. 53> with further references). In this respect, an appropriate balance must be struck between the severity of the interference resulting from the provision and the legislative aim pursued, as well as the extent to which the aim is expected to be achieved (cf. BVerfGE 148, 40 <58 f. para. 49>; for a comprehensive overview cf. BVerfGE 163, 107 <152 para. 119>; 167, 163 <224 para. 146>; established case-law).

140

The principle of appropriateness gives rise to comprehensive, specific requirements with regard to coercive medical treatment of persons under custodianship who lack the capacity to consent, administered to fulfil the state’s duty of protection under Art. 2(2) first sentence of the Basic Law vis-à-vis these persons. It is a necessary precondition for any coercive medical treatment that the persons concerned, due to illness, lack the capacity to understand the medical necessity of the treatment in question or to act upon such understanding (cf. BVerfGE 142, 313 <339 para. 73>). Coercive medical treatment that serves to protect the fundamental right under Art. 2(2) first sentence of the Basic Law of the person concerned must not be carried out against their free will (cf. BVerfGE 142, 313 <340 para. 75>). The original free will of the person under custodianship must also be taken into account, insofar as it can be determined on a sufficiently reliable basis, for example based on a relevant advance healthcare directive or treatment preferences previously expressed vis-à-vis others (cf. BVerfGE 142, 313 <342 para. 80, 342 f. paras. 82 f.>). Moreover, coercive medical treatment may only be carried out if the aim pursued by the treatment, in consideration of its prospects of success, clearly outweighs the severity of interference. This is the case in particular where the person concerned faces serious health impairments, including a danger to life, that can be averted through treatment measures that do not amount to excessively intrusive interference and that have good prospects of success (cf. BVerfGE 142, 313 <340 paras. 78, 341 f. para. 80, 343 para. 83>). In any case, coercive medical treatment may only be used as a last resort (cf. BVerfGE 142, 313 <338 para. 71, 343 para. 82, 344 f. para. 86>). With regard to the natural will of persons under custodianship who lack the capacity to consent being opposed to coercive medical treatment, serious attempts must first be made, taking the necessary time and without exerting undue pressure, to convince the person concerned of the necessity of the treatment in question (cf. BVerfGE 142, 313 <344 f. para. 86>; 158, 131 <157 para. 67> with further references). In procedural terms, it is absolutely necessary that coercive treatment is ordered and monitored by qualified medical professionals, that it is announced beforehand – at least in case of planned medical treatment –, that the measure in question is reviewed beforehand by a third party who is entirely independent of the institution where the person is confined, and that it is documented (cf. BVerfGE 128, 282 <315 ff.>; 158, 131 <157 f. para. 68> with further references).

141

b) Based on these standards, the criterion of appropriateness is not satisfied in all respects. The challenged provision results in serious interference – and in some cases even very serious interference – with the right to physical integrity under Art. 2(2) first sentence, second alternative of the Basic Law of persons under custodianship who lack the capacity to consent (see aa) below). This must be balanced against the great significance of the legislative purposes pursued by § 1906a(1) first sentence no. 7 of the Civil Code (old version), which are based on duties of protection following from fundamental rights (see bb) below). In an overall balancing of the interference with the purposes pursued, the interference is disproportionate in the strict sense with regard to the aforementioned cases (see cc) below). This cannot be remedied by interpreting § 1906a(1) first sentence no. 7 of the Civil Code (old version) in a manner that is in conformity with the Constitution (see dd) below).

142

aa) The interference, resulting from § 1906a(1) first sentence no. 7 of the Civil Code (old version), with the right to self-determination (see (1) below) and with physical integrity (see (2) below), both protected by Art. 2(2) first sentence, second alternative of the Basic Law, is serious, and even very serious in individual cases.

143

(1) Any coercive medical treatment administered on the basis of § 1906a(1) first sentence no. 7 of the Civil Code (old version) overrides the natural will of the person under custodianship opposing the treatment and therefore amounts to a serious interference with their right to self-determination in respect of physical integrity protected by Art. 2(2) first sentence, second alternative of the Basic Law. Depending on the individual case, further strains resulting from § 1906a(1) first sentence no. 7 of the Civil Code (old version) may add to the severity of the interference with the right to self-determination.

144

Insofar as persons affected by coercive medical treatment have formed a natural will that specifically opposes coercive medical treatment in an inpatient hospital setting, in consideration of the treatment and modalities of treatment available there, § 1906a(1) first sentence no. 7 in conjunction with § 1906a(1) first sentence nos. 1 to 6 and § 1906a(2) of the Civil Code (old version) permits overriding this will, which is protected by Art. 2(2) first sentence, second alternative of the Basic Law. This curtails the possibility of persons concerned to influence the site of treatment; in addition, the requirement of hospitalisation without exception also limits the group of medical professionals who can administer treatment to doctors working in hospital and to treatment methods provided in hospital. Persons concerned thus cannot choose to have coercive medical treatment administered by a favoured medical professional whom they trust. The effects of these restrictions may also impact the success of coercive medical treatment in individual cases.

145

Furthermore, § 1906a(1) first sentence no. 7 of the Civil Code (old version) does not allow persons under custodianship to influence the site of coercive medical treatment by exercising their original free will protected by Art. 2(2) first sentence, second alternative of the Basic Law. Insofar as it can be established on a sufficiently reliable basis in individual cases that the original free will of affected persons is directed against coercive medical treatment, particularly treatment administered in hospital, this will would have to be taken into account under § 1906a(1) first sentence no. 3 of the Civil Code (old version) (cf. BTDrucks 18/11240, p. 19 f.); yet in light of the absolute requirement of § 1906a(1) first sentence no. 7 of the Civil Code (old version), this would mean that the necessary medical treatment could not be carried out. § 1906a(1) first sentence no. 7 of the Civil Code (old version) does not leave any scope for affected persons to determine an alternative site of treatment, in deviation from that provision, that reflects their original free will.

146

Insofar as affected persons are not in hospital yet oppose the change of location necessary for coercive medical treatment based on their natural will, § 1906a(4) in conjunction with § 1906(1) no. 2 and (2) of the Civil Code (old version) provides that this will can be overridden by the custodian’s consent with approval from the custodianship court and that affected persons can be placed into hospital against their natural will (cf. BTDrucks 18/11240, p. 21; 18/12842, p. 8); if affected persons physically resist placement into hospital, § 326(1) and (2) first sentence in conjunction with § 312 no. 3 of the Act on Proceedings in Family Matters and in Matters of Non-Contentious Jurisdiction even allows the use of force on the basis of a court order. Any resulting impairments to the right to self-determination must be taken into account when assessing the severity of interference of § 1906a(1) first sentence no. 7 of the Civil Code (old version), because placement into hospital is a consequence of the restriction of coercive medical treatment to inpatient hospital treatment.

147

(2) It primarily depends on the specific medical treatment how severely coercive medical treatment under § 1906a(1) first sentence and (2) of the Civil Code (old version) interferes with physical integrity, which is protected by Art. 2(2) first sentence, second alternative of the Basic Law; this can vary substantially depending on the individual case. In particular, impairments to physical integrity resulting from § 1906a(1) first sentence no. 7 of the Civil Code (old version) can add to the interference and increase its severity.

148

Insofar as persons affected by coercive medical treatment are not already at the site of treatment provided for in § 1906a(1) first sentence no. 7 of the Civil Code (old version), the requirement of hospitalisation without exception will in certain cases give rise to the specific and foreseeable risk of a considerable deterioration of their health. In particular, it follows from the written statements submitted and the statements given in the oral hearing that patients suffering from dementia may be faced with a particular risk of confusion and related – possibly serious – impairments to their health that result from a change of location. Moreover, in certain constellations, requiring hospitalisation is associated with a foreseeable increase in the risk of infection with certain diseases. If patients are hospitalised for a longer period, there is also a foreseeable risk of impairments due to a sense of alienation from their familiar surroundings.

149

In cases where affected persons also physically resist the change of location, additional impairments to their physical integrity may arise from the use of force for their placement into hospital on the basis of § 326(1) and (2) first sentence in conjunction with § 312 no. 3 of the Act on Proceedings in Family Matters and in Matters of Non-Contentious Jurisdiction.

150

bb) That said, the legislative purposes pursued by § 1906a(1) first sentence no. 7 of the Civil Code (old version) are of great significance.

151

By providing for the possibility of coercive medical treatment as a last resort in § 1906a(1) first sentence and (2) of the Civil Code (old version), the legislator exercises its duty of protection following from Art. 2(2) first sentence of the Basic Law for persons under custodianship who lack the capacity to consent in cases in which serious health impairments, including a danger to life, can be averted through treatment measures that do not amount to excessively intrusive interference and that have good prospects of success. This duty of protection, which serves to protect affected individuals, is of great significance. State and society may not simply leave persons under custodianship who lack the capacity to consent alone in such cases (cf. BVerfGE 142, 313 <339 para. 73, 340 f. para. 78>).

152

The legitimate purposes pursued by § 1906a(1) first sentence no. 7 of the Civil Code (old version) to this end – protecting affected persons from coercive measures in their home, having multi-professional teams review whether the prerequisites for coercive medical treatment are met, preventing the administration of unnecessary coercive medical treatment that is based on misguided incentives, and ensuring proper medical care – are likewise very significant. This follows from the fact that all of these purposes are themselves based on duties of protection following from Art. 2(2) first sentence, second alternative of the Basic Law or Art. 13(1) of the Basic Law (in this regard see paras. 112 f, 115 and 117 above). It is especially significant that the legislator’s aim in the exercise of these duties of protection is to ensure that coercive medical treatment of persons under custodianship who lack the capacity to consent can only be administered under strict conditions and as a last resort (cf. BVerfGE 142, 313 <336 para. 67, 338 para. 71, 340 f. para. 78>; 158, 131 <155 para. 64>). The legislator’s interest in protecting, to the greatest possible extent, the fundamental right under Art. 2(2) first sentence, second alternative of the Basic Law – which is subordinated when coercive medical treatment is permitted –, in particular the interest in ruling out considerable impairments to physical integrity that could be avoided, is of great significance (cf. BVerfGE 142, 313 <341 para. 78, 342 para. 82>; 158, 131 <157 f. para. 68> with further references).

153

cc) Nevertheless, in an overall balancing of the interference with the purposes pursued, the interference resulting from § 1906a(1) first sentence no. 7 of the Civil Code (old version) is disproportionate in the strict sense with regard to individual cases. The finding that the provision is disproportionate does not follow from the fact that hospitalisation is required for coercive medical treatment for typical cases (see (1) below). However, the interference is inappropriate insofar as persons under custodianship will, in individual cases, likely face serious impairments to their physical integrity due to the absolute requirement that coercive medical treatment must be administered in an inpatient hospital setting without exception and it is to be expected that these impairments can be avoided, or at least significantly reduced, if the coercive medical treatment is administered to the person under custodianship in the facility where they reside and this facility comes close to meeting hospital standards with regard to the specific medical treatment necessary, including any follow-up care, and it is not to be expected that treatment in this facility will result in affected persons facing other impairments to their physical integrity or other interest of comparable weight that is protected by fundamental rights (see (2) below).

154

(1) It is not inappropriate that § 1906a(1) first sentence no. 7 of the Civil Code (old version) provides that coercive medical treatment must typically be administered in an inpatient hospital setting. While the legislative design of the prerequisites and modalities of coercive medical treatment must reflect the diversity and the specific circumstances of individual cases (cf. BVerfGE 142, 313 <343 para. 83>), the strain on affected persons that adds to the severity of interference resulting from each instance of coercive treatment due to the requirement of hospitalisation can be minor. It is also not objectionable under constitutional law that the legislator considers hospital to be the best and safest place to ensure that the subordinated fundamental right under Art. 2(2) first sentence, second alternative of the Basic Law of affected persons is protected to the greatest possible extent when coercive medical treatment is permitted. It is certainly true that hospitals guarantee a high level of medical care provided by medical professionals.

155

(2) However, the interference resulting from § 1906a(1) first sentence no. 7 of the Civil Code (old version) is inappropriate insofar as persons under custodianship will likely face serious impairments to their physical integrity due to the absolute requirement of hospitalisation without exception and it is to be expected that these impairments could be avoided, or at least significantly reduced, if the coercive medical treatment is administered in the facility where they reside and this facility comes close to meeting hospital standards with regard to the specific medical treatment necessary, including any follow-up care.

156

In such cases, in which affected persons likely face considerable impairments to their physical integrity protected by Art. 2(2) first sentence, second alternative of the Basic Law due to the absolute requirement of hospitalisation, which go beyond the quite considerable impairments resulting from any coercive treatment, the severity of interference resulting from the challenged provision is increased when compared to the typical case. This may also concern cases in which affected persons face very serious impairments due to the requirement in § 1906a(1) first sentence no. 7 of the Civil Code (old version). According to § 1906a(1) first sentence no. 6 of the Civil Code (old version), for coercive medical treatment to be permissible, the anticipated benefit must clearly outweigh the anticipated impairments. Thus, affected persons must tolerate the risk of serious impairments to physical integrity resulting from § 1906a(1) first sentence no. 7 of the Civil Code (old version) to receive necessary medical treatment if the realisation of this risk appears much less likely ex ante than the realisation of a considerable risk that the treatment serves to avert.

157

It is not reasonable to expect affected persons to tolerate interferences of particular severity resulting from the risk of considerable impairments due to the absolute requirement of § 1906a(1) first sentence no. 7 of the Civil Code (old version), provided that these impairments could be avoided, or at least significantly reduced, if the coercive medical treatment were administered in the facility where they reside and this facility comes close to meeting hospital standards with regard to the specific medical treatment necessary, including any follow-up care.

158

However, a measure is not unreasonable in this sense if coercive medical treatment in hospital is unavoidable from a medical perspective in the individual case. This is the case especially when a sufficiently safe implementation of the specific medical measure will probably require a specific institutional framework, personnel and resources at the site of treatment which can only be guaranteed in hospital. This may apply to complex and high-risk coercive medical treatment.

159

By contrast, the interference resulting from § 1906a(1) first sentence no. 7 of the Civil Code (old version) is unreasonable insofar as two prerequisites are met when it is applied: The first prerequisite is that the coercive medical treatment in question could, from a medical perspective, be administered in the facility where the affected person resides and this facility comes close to meeting hospital standards with regard to the specific medical treatment necessary, including any follow-up care, in particular if no significant improvement in medical care is to be expected from hospitalisation in view of the specific illness and the treatment to be administered. The second prerequisite is that, based on an ex ante assessment, it is to be expected that the considerable impairments to physical integrity that may result from the absolute requirement in § 1906a(1) first sentence no. 7 of the Civil Code (old version) can be avoided, or at least significantly reduced, when coercive medical treatment is administered in this facility. In such cases covered by § 1906a(1) first sentence no. 7 of the Civil Code (old version), there is no overriding interest protected by constitutional law that could justify making affected persons tolerate avoidable, serious impairments to their physical integrity in a situation where they are most vulnerable. In particular, this concerns cases in which coercive medical treatment is administered repeatedly, giving rise to sufficiently reliable indications for prognoses regarding future impairments. Any legislative interest in generalisation would have to be subordinated to the fundamental right to physical integrity of affected persons. In these cases, the legislative purposes pursued by § 1906a(1) first sentence no. 7 of the Civil Code (old version) and the limits to the legislator’s ability to legislate on the subject matter are not capable of justifying the acceptance of considerable impairments to physical integrity that could probably be avoided.

160

It is currently not sufficiently ascertainable that the safeguards provided for in § 1906a(1) first sentence no. 7 of the Civil Code (old version) fall short. These include substantive and procedural safeguards: In substantive terms, both the custodian (§ 1901(2) first sentence Civil Code, old version) and, in the framework of oversight of custodians’ work, the custodianship court (§ 1908i(1) first sentence in conjunction with § 1837(2) first sentence Civil Code, old version) are bound by the best interests of persons under custodianship (cf. BTDrucks 11/4528, p. 133). § 1906a(1) first sentence nos. 1 to 6 of the Civil Code (old version) sets out specific requirements that take into account the best interests of persons under custodianship, their free will and the requirement that coercive treatment must only be used as a measure of last resort; these requirements must all be met for consent and approval of coercive medical treatment of persons under custodianship to be permissible. Procedural safeguards, in particular protecting the principle of last resort, include the requirement of the custodian’s consent (§ 1906a(1) first sentence Civil Code, old version) and the requirement of approval by the custodianship court, which must base its decision on expert knowledge (§ 1906a(2) Civil Code, old version, § 321(1), § 331 first sentence no. 2 Act on Proceedings in Family Matters and in Matters of Non-Contentious Jurisdiction). Nor is it sufficiently ascertainable that there are no possible alternative or supplementary provisions that could be enacted to consistently ensure that – despite potential incentives for care homes or other facilities to use coercive medical treatment prematurely – coercive medical treatment is only administered as a last resort (cf. para. 129) ([…]).

161

The fact that § 1906a(1) first sentence no. 7 of the Civil Code (old version) does not provide for any exceptions does not properly ensure respect for the principle that coercive medical treatment must only be used as a measure of last resort. It is true that, like any obstacle to coercive medical treatment, the lack of exceptions may tend to reduce the number of such treatment measures. However, in light of the duty to protect physical integrity, the safeguards provided must also sufficiently reflect the significance of the individual legal interest to be protected. The general requirement of hospitalisation is not capable of doing so.

162

There is no need to decide here whether, and under what conditions, the interference resulting from § 1906a(1) first sentence no. 7 of the Civil Code (old version) is also unreasonable with regard to injunctive proceedings, which are subject to a lower standard of review than principal proceedings in terms of the principle of last resort.

163

Considerable impairments to physical integrity arising from the absolute requirement in § 1906a(1) first sentence no. 7 of the Civil Code (old version) are only avoidable in the aforementioned sense (see para. 159 above) if affected persons, in case of the administration of treatment in the facility where they reside, do not likely face other impairments to their physical integrity or another comparable interest protected by fundamental rights whose severity is not significantly lower than the severity of the avoidable impairments. This applies in particular with regard to the legal interests of affected persons protected by Art. 13(1) of the Basic Law. Especially with regard to these legal interests, impairments faced by affected persons if coercive medical treatment is administered at an alternative site outside hospital, which is not the facility where the affected person resides, may be lower than impairments that may result from coercive medical treatment being administered in the facility where they reside. That said, the present specific judicial review proceedings do not concern cases covered by § 1906a(1) first sentence no. 7 of the Civil Code (old version) in which considerable impairments to physical integrity arising from the absolute requirement in § 1906a(1) first sentence no. 7 of the Civil Code (old version) could probably be avoided if treatment were administered at a sufficiently suitable site outside hospital that is not the facility where the affected person resides (see para. 85 above).

164

Given the current medical realities, the legislator was entitled to make the administration of coercive medical treatment as inpatient hospital treatment the typical case. The legislator is not constitutionally required to enact legislation according to which the most suitable site of coercive medical treatment must be chosen in each individual case based on an ex ante assessment of all possible sites. It is true that such legislation might result in less restrictions on affected persons insofar as the site that would match individual preferences, expectations and particularities to the greatest possible extent would have to be chosen. However, this would require a comprehensive investigation of the facts of the case , in particular with regard to the individual preferences and expectations of affected persons, the standard of medical care guaranteed at the alternative site, and other relevant circumstances of the case. Such investigation might adversely affect fundamental rights and would conflict with the aim of making a decision on coercive medical treatment in due time and in a manner accommodating of fundamental rights.

165

dd) Based on the applicable standards (see (1) below), the fact that § 1906a(1) first sentence no. 7 of the Civil Code (old version) is disproportionate in the strict sense with regard to individual cases cannot be remedied through an interpretation in conformity with the Constitution (see (2) below).

166

(1) Since it is generally to be presumed that a law is constitutional, it must in principle be interpreted in conformity with the Constitution (cf. BVerfGE 2, 266 <282>; 122, 39 <60>). An interpretation in conformity with the Constitution is limited by the wording of the law (cf. BVerfGE 122, 39 <61>; 124, 25 <39>; 159, 183 <218 para. 88>), its overall context (cf. BVerfGE 83, 201 <215>; 88, 145 <166>), its legislative history and its spirit and purpose (cf. BVerfGE 88, 145 <166>; 112, 164 <183>; 122, 39 <61>). A law cannot be interpreted in conformity with the Constitution if such interpretation conflicts with the clearly ascertainable intent of the legislator (cf. BVerfGE 122, 39 <61>; 128, 157 <179>; 162, 1 <171 para. 387> – Bavarian Protection of the Constitution Act).

167

(2) Based on these standards, an interpretation in conformity with the Constitution of § 1906a(1) first sentence no. 7 of the Civil Code (old version), according to which coercive medical treatment could also be administered without hospitalisation in individual cases, is ruled out. Such an interpretation would go beyond the wording of § 1906a(1) first sentence no. 7 of the Civil Code (old version), which requires that coercive medical treatment must be administered in an inpatient hospital setting without exception. These considerations notwithstanding, an interpretation in conformity with the Constitution also cannot be considered because it would conflict with the legislative intent, clearly expressed in the explanatory memorandum to the draft act, that coercive medical treatment should only be permissible in an inpatient hospital setting (cf. BTDrucks 18/11240, pp. 15, 20).

D.

168

§ 1906a(1) first sentence no. 7 of the Civil Code (old version), the provision under review here, is incompatible with Art. 2(2) first sentence, second alternative of the Basic Law insofar as persons under custodianship will likely face serious impairments to their physical integrity due to the absolute requirement that coercive medical treatment must be administered in an inpatient hospital setting without exception and it is to be expected that these impairments could be avoided, or at least significantly reduced, if the coercive medical treatment is administered to the person under custodianship in the facility where they reside and this facility comes close to meeting hospital standards with regard to the specific medical treatment necessary, including any follow-up care, and it is not to be expected that treatment in this facility will result in affected persons facing other impairments to their physical integrity or other interest of comparable weight that is protected by fundamental rights. The provision must be declared incompatible with Art. 2(2) first sentence, second alternative of the Basic Law to this extent. The current law remains applicable until new legislation is adopted, but in any case no later than 31 December 2026 (see I. below). The declaration of incompatibility must be extended to the successor provision of § 1832(1) first sentence no. 7 of the Civil Code (new version), which has the same content (see II. below).

I.

169

Pursuant to § 82(1) in conjunction with § 78 first sentence of the Federal Constitutional Court Act, the Federal Constitutional Court will generally declare a law void in judicial review proceedings if it concludes that it is incompatible with the Basic Law. However, the Court may declare an unconstitutional law to be merely incompatible with the Basic Law [rather than void] under certain conditions (cf. BVerfGE 161, 163 <297 para. 369>; 166, 1 <88 para. 187>). This is usually the case where the legislator has different options to remedy a violation of the Constitution. This must generally presumed to be the case when violations of the general guarantee of the right to equality are at issue, but a mere declaration of incompatibility can also be considered if the violation of constitutional law does not affect the general guarantee of the right to equality under Art. 3(1) of the Basic Law (cf. BVerfGE 166, 1 <89 para. 187> with further references). The Federal Constitutional Court can also declare a law partially void or partially incompatible with the Basic Law, for example as regards some of the cases to which this law applies (cf. BVerfGE 117, 163 <164, no. 1 of the operative part>; 142, 313 <313 f., no. 1 of the operative part>).

170

Based on these standards, § 1906a(1) first sentence no. 7 of the Civil Code (old version) must be declared partially incompatible with Art. 2(2) first sentence, second alternative of the Basic Law. The violation of constitutional law does not concern the entire scope of application of § 1906a(1) first sentence no. 7 of the Civil Code (old version), but only individual cases. The legislator has different options to remedy the violation of the Constitution. Constitutional law does not prescribe a specific approach in this regard but leaves the decision to the legislator. The legislator is free to keep the requirement of hospitalisation for coercive medical treatment in principle and merely provide for an exception for the cases found to be unconstitutional here; the legislator has different options regarding the specific design of such an exception. Nor is the legislator generally precluded from lifting the requirement of hospitalisation and replacing it with a more flexible framework applicable to all cases (cf., however, para.140).

171

In any case, when adopting new legislation, the legislator must ensure that the fundamental rights of all affected persons are protected to the greatest possible extent through strict substantive and procedural safeguards (cf. BVerfGE 142, 313 <340 paras. 78 ff.> with further references; cf. para. 140). In particular, it must be ensured that coercive medical treatment may only be used as a last resort (cf. BVerfGE 142, 313 <336 para. 67, 338 para. 71, 340 f. para. 78>; 158, 131 <155 f. para. 64>). Insofar as coercive medical treatment is to be permissible, in consideration of the requirement that it must only be used as a measure of last resort, considerable impairments to constitutionally protected legal interests of affected persons that can be avoided must be ruled out. It must be ensured that all sites which may administer coercive medical treatment must come close to meeting hospital standards with regard to the specific medical treatment necessary, including any follow-up care, in particular if no significant improvement in medical care is to be expected from hospitalisation in view of the specific illness and the treatment to be administered. Moreover, impairments to physical integrity or to another constitutionally protected legal interest that affected persons are likely to face at the specific site of treatment must be reduced to the greatest possible extent. This particularly concerns cases where coercive medical treatment is administered repeatedly and specific indications of likely impairments to physical integrity were present in previous approval proceedings.

II.

172

Based on the applicable standards (see 1. below), the partial declaration of incompatibility must be extended to § 1832(1) first sentence no. 7 of the Civil Code (new version) (see 2. below). By contrast, the partial declaration of incompatibility is not to be extended to § 1906a(5) second sentence in conjunction with § 1906a(1) first sentence no. 7 of the Civil Code (old version) or to § 1832(5) in conjunction with § 1832(1) first sentence no. 7 of the Civil Code (new version) (see 3. below).

173

1. Pursuant to § 78 second sentence in conjunction with § 82(1) of the Federal Constitutional Court Act, the Federal Constitutional Court can declare ‘further provisions of the same law’ to be void if they are incompatible with the Basic Law ‘for the same reasons’. Further provisions of the same law also include successor provisions enacted by the same legislator with the same content (cf. BVerfGE 65, 237 <243 f.>; 94, 241 <265 f.>; 149, 222 <291 f. para. 154>; 155, 119 <235 para. 267>). A further provision is incompatible with the Basic Law for the same reasons [as the provision under review] if a separate constitutional assessment is not necessary (cf. BVerfGE 148, 147 <179 para. 81>; 158, 282 <380 para. 241>). It is for the Federal Constitutional Court to decide whether to extend the declaration of voidness; such extension serves to enhance legal clarity (cf. BVerfGE 133, 377 <423 para. 106>; 150, 244 <308 para. 171>; 155, 119 <235 f. para. 267>). § 78 second sentence of the Federal Constitutional Court Act also permits a mere declaration of incompatibility with regard to the further provision (cf. BVerfGE 128, 326 <404>; 132, 179 <192 para. 41>; 149, 222 <291 f. para. 154>; Federal Constitutional Court, Judgment of the First Senate of 9 April 2024 - 1 BvR 2017/21 -, para. 116 – Paternity challenges).

174

2. Based on these standards, the partial declaration of incompatibility must be extended to § 1832(1) first sentence no. 7 of the Civil Code (new version) for the sake of legal clarity. The provision has replaced the provision under review in the present proceedings – § 1906a(1) first sentence no. 7 of the Civil Code (old version) –, which continues to be the relevant provision for the decision in the initial proceedings (see para. 80 above), with effect from 1 January 2023 without any changes to its contents (see para. 16 above). The partial incompatibility with the Basic Law of § 1832(1) first sentence no. 7 of the Civil Code (new version) is based on the same grounds as the partial incompatibility of § 1906a(1) first sentence no. 7 of the Civil Code (old version) with Art. 2(2) first sentence, second alternative of the Basic Law. No separate constitutional assessment [of the new provision] is necessary.

175

3. By contrast, the prerequisites for extending the partial declaration of incompatibility to § 1906a(5) second sentence in conjunction with § 1906a(1) first sentence no. 7 of the Civil Code (old version) or to § 1832(5) in conjunction with § 1832(1) first sentence no. 7 of the Civil Code (new version) have not been met. § 1906a(5) second sentence of the Civil Code (old version) provides that § 1906a(1) first sentence no. 7 of the Civil Code (old version) applies accordingly, and § 1832(5) provides that § 1832(1) first sentence no. 7 of the Civil Code (new version) applies accordingly, to cases in which affected persons have entrusted a proxy with consent to coercive medical treatment. The assessment of whether the absolute requirement of hospitalisation for coercive medical treatment without exception is compatible with the Basic Law in such cases would require a separate constitutional assessment. This applies in particular with regard to its severity of interference. Given that the persons concerned have themselves legally established the power of representation on the basis of which proxies can consent to coercive medical treatment, changes in the severity of interference with the scope of protection of the right to self-determination protected by Art. 2(2) first sentence, second alternative of the Basic Law may arise.

III.

176

The effect of a declaration of incompatibility is that the courts and administrative authorities may no longer apply the provision to the extent stipulated in the decision (cf. BVerfGE 55, 100 <110>; 61, 319 <356>; 135, 238 <245 para. 24>). That said, the Court may combine the declaration of incompatibility with an order to temporarily continue the application of the unconstitutional provision. This may be considered if the particular features of the provision that was declared to be unconstitutional make it necessary for constitutional reasons, in particular for the sake of legal certainty, to continue to apply the unconstitutional provision until new provisions have been enacted in order to ensure that no state of affairs arises that would be even more unconstitutional than the previous framework (cf. BVerfGE 165, 1 <100 para. 201>; 166, 1 <89 para. 187>; Federal Constitutional Court, Judgment of the First Senate of 9 April 2024 - 1 BvR 2017/21 -, para. 111). This is the case in particular if the immediate invalidity of the provision would eliminate the statutory basis for the protection of exceptionally significant constitutional interests or could result in a legal vacuum, and if a balancing of these interests against the affected fundamental rights requires that the interference be tolerated for a transitional period (cf. BVerfGE 166, 1 <89 para. 187> with further references; Federal Constitutional Court, Judgment of the First Senate of 9 April 2024 - 1 BvR 2017/21 -, para. 111).

177

Based thereon, the declaration of incompatibility must be combined with an order for the continued application of § 1906a(1) first sentence no. 7 of the Civil Code (old version) and § 1832(1) first sentence no. 7 of the Civil Code (new version), insofar as they are unconstitutional, for their respective temporal scope of application until new provisions have been adopted. If the legal provisions were to become inapplicable, the subordinated fundamental right of affected persons would no longer be protected through the requirement of hospitalisation in the cases under review here, and the level of medical care necessary for the administration of coercive medical treatment would not be otherwise guaranteed by a sufficiently specific provision. The legal effects that would continue to result from the challenged provisions despite their inapplicability would lead to a state of affairs that would be even more unconstitutional than the state of affairs brought about by the continued applicability of the provisions on a temporary basis.

IV.

178

The declaration of incompatibility requires the legislator to bring about conformity with the Constitution (cf. BVerfGE 55, 100 <110>; 133, 377 <423 para. 108>; 161, 163 <298 para. 372>). If the Federal Constitutional Court does not set a time limit, the legislator is not constitutionally required to enact new provisions within a certain time period (cf. BVerfGE 55, 100 <110>).

179

Given the many different options and the complexity of the legal and factual considerations to be taken into account, the legislator has until 31 December 2026 to adopt new provisions.

E.

180

This decision was taken with 5:3 votes.