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Successful constitutional complaint against compulsory medical treatment in forensic psychiatric hospitals – Legal basis of Saxony state law void
Press Release No. 14/2013 of 28 February 2013
Order of 20 February 2013
2 BvR 228/12
In an order released today, the Second Senate of the Federal Constitutional Court granted the constitutional complaint of a person committed to a forensic psychiatric hospital as a measure of correction and prevention. In this order, the Court declared void a provision of Saxony Land law, on the basis of which the complainant was treated with psychotropic drugs against his will (§ 22 sec. 1 sentence 1 of the Saxony Act on Assistance and Committal in Cases of Mental Illness, Gesetz über die Hilfen und die Unterbringung bei psychischen Krankheiten - SächsPsychKG). In two previous orders dating from 2011, which this decision follows, the Court had already voided provisions for compulsory medical treatment under legislation in the federal states of Rhineland-Palatinate and Baden-Württemberg (Decisions of the Federal Constitutional Court, Entscheidungen des Bundesverfassungsgerichts - BVerfGE, 128, 282 and BVerfGE 129, 269; press releases nos. 28/2011 of 15 April 2011 and 63/2011 of 20 October 2011).
In essence, the decision is based on the following considerations:
1. In 2002, the complainant was found not guilty on a charge of aggravated extortion due to criminal incapacity, and was confined to a psychiatric hospital. According to the clinic's diagnosis, he suffers from chronified paranoid schizophrenia. As a consequence of his illness, the complainant demonstrated severe behavioural abnormalities that also presented a massive disturbance to his environment. He is under legal guardianship and has been treated with an anti-psychotic medication after an adult guardian gave her consent. He himself refuses treatment and tolerates it only in order to avoid that the prescribed medication be administered through direct compulsion.
2. The complainant had first unsuccessfully attempted to obtain a finding before the guardianship court that there was no legal basis on which his guardian at that time could consent to compulsory treatment with neuroleptics. In subsequent proceedings under the Enforcement of Criminal Penalties Act (Strafvollzugsgesetz), he applied for a suspension of all compulsory treatment with medications, at least until a new legal provision - which was specified in further detail - on compulsory medical treatment was enacted. This application for legal protection was unsuccessful before both the Criminal Penalties Enforcement Chamber of the Regional Court (Landgericht) and the Higher Regional Court (Oberlandesgericht).
The Regional Court held that in the case of a patient who, due to illness, is incapable of consenting, the natural will of the person committed to the institution does not stand in opposition to treatment if the person's guardian has given valid consent. If a treatment is recognised as necessary, is medically advised, and is considered necessary by the guardian, the court held, it must be possible to impose it even against the illness-influenced will of the patient. The court ruled that the lawfulness of the guardian's consent could not be reviewed by the court responsible for enforcement, but only by the guardianship court, since § 22 SächsPsychKG was solely tied to the existence of a consent.
The Higher Regional Court found that, in contrast to the cases decided by the Federal Constitutional Court, the complainant's compulsory medical treatment was justified not only by the constitutionally protected interest in freedom of the institutionalised person himself, but also by the obligation under Art. 1 sec. 1 of the Basic Law (Grundgesetz - GG), which requires that all State powers respect and protect the inviolable dignity of human beings. If the complainant's compulsory medical treatment were to be suspended, the court held, there was a probability verging on certainty that the complainant's health status would deteriorate dramatically. The complainant would then once again demonstrate the massive behavioural abnormalities that in the past had made it necessary to repeatedly place him in the crisis intervention room.
The constitutional complaint is directed against the orders of these courts and against the underlying legal provisions.
3. The constitutional complaint is admissible and well-founded.
a) The basis for interference, § 22 sec. 1 sentence 1 SächsPsychKG, is incompatible with the Basic Law, and void. For this reason already, the challenged decisions violate the complainant's fundamental right to physical integrity (Art. 2 sec. 2 sentence 1 GG), because there is no constitutional legal basis for the compulsory medical treatment, which these decisions had confirmed as lawful.
A constitutionally sound legal basis for an encroachment upon fundamental rights is required irrespective of whether good or even compelling objective reasons can be adduced for the measure in question. It is the very purpose of the constitutional principle that restrictions of fundamental rights are only permissible on the basis of legislation ("requirement of legislative authorisation", Vorbehalt des Gesetzes) to determine who is primarily responsible to assess whether restrictions on fundamental rights are justified or not. The principle ensures that the boundaries between permissible and impermissible exercises of fundamental rights, as well as between permissible and impermissible restrictions of fundamental rights, are not drawn on a case-by-case basis according to the discretion of executive authorities or courts, but primarily - in the form of a general law - by the legislature.
b) § 22 sec. 1 sentence 1 SächsPsychKG does not, as is required by the Constitution, restrict the institutionalised person's compulsory medical treatment - treatment aimed at achieving the objective of the measure of correction and prevention - to cases in which the person is unable to understand and make a free choice due to this person's illness. It is not a sufficient restriction in this regard that the consent of the adult guardian, for its part, requires that the ward's incapability of understanding is due to illness, because the relevant provisions of guardianship law do not permit a guardian to consent to the compulsory medical treatment of a person committed to a forensic psychiatric institution as a measure of correction and prevention.
Furthermore, there is no statutory definition of the purpose or purposes that are supposed to justify the infringement. Moreover, the requirement that the law must specify the substantive prerequisites for compulsory medical treatment beyond the abstract requirement of reasonableness and proportionality is not satisfied.
With respect to its procedural set-up, too, the statute only partly satisfies the constitutional requirements. To protect substantive constitutional rights effectively, it is necessary to make sure that compulsory medical treatment is preceded by a sufficiently specific announcement, and that before applying compulsory treatment, the hospital seriously attempts to obtain the trust-based, voluntary consent of the person concerned. Provisions to that effect are absent in the statute. Moreover, contrary to constitutional requirements, no provision is made for an advance review of the measure under conditions which secure independence from the institution to which the person is committed. It is not sufficient that § 22 sec. 1 sentence 1 SächsPsychKG ties compulsory medical treatment to the consent of the legal representative - i.e., in the case of adults, the adult guardian. This provision does not provide for a review of the clinic's decision on the basis of the prescribed legal standards. Rather, it replaces such standards by the guardian's decision.