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Limiting coercive medical treatment to persons under custodianship confined in accommodations is incompatible with the state’s duty of protection

Press Release No. 59/2016 of 25 August 2016

Order of 26 July 2016
1 BvL 8/15

It violates the duty of protection under Art. 2 sec. 2 sentence 1 of the Basic Law (Grundgesetz – GG) that under the current legal situation, persons in need of aid who receive in-patient treatment in a non-closed facility but who are no longer able to move around without assistance cannot be given medical treatment, if need be even against their natural will. This was the ruling of the First Senate of the German Federal Constitutional Court (Bundesverfassungsgericht) in an order published today. The legislature must promptly fill the gap in protection that the Court established. Considering that under the current legal situation, the possibility of treatment is denied entirely even in cases of life-threatening damage to health, the Senate ordered that, for the time being until a new provision enters into force, § 1906 sec. 3 of the German Civil Code (Bürgerliches Gesetzbuch – BGB) applies accordingly to persons under custodianship who are being treated as inpatients and are unable to remove themselves spatially from coercive medical treatment.

Facts of the Case:

The woman concerned in the initial proceedings, who is now deceased, suffered from a schizoaffective psychosis because of which she had been under custodianship since the end of April 2014. Early in September 2014, she was briefly admitted to a care facility. There she declined to take the medications prescribed to treat an autoimmune disorder; she refused to eat and expressed the intent to commit suicide. After she had been transferred with court approval to a closed dementia unit at a clinic, she was treated with medication through coercive medical measures on the basis of multiple orders of the custodianship court. Further examinations showed that the patient also suffered from breast cancer. At this time, she was already severely weakened physically, could no longer walk nor move around with a wheelchair by herself. Mentally, she was capable of expressing her natural will. In response to the court’s questions, she repeatedly stated that she did not wish to be treated for her cancer. Thereupon her custodian applied to have the authorisation for the patient’s accommodation extended and to obtain approval for coercive medical measures, particularly to treat the breast cancer. The Local Court (Amtsgericht) denied the application for accommodation and coercive treatment. It held that in the absence of the legal requirements, the person could not be placed in an accommodation associated with the deprivation of liberty pursuant to § 1906 sec. 1 BGB, and therefore also could not be subjected to coercive medical treatment pursuant to § 1906 sec. 3 BGB. A complaint to the Regional Court (Landgericht) was unsuccessful. In response to the custodian’s appeal on points of law, the Federal Court of Justice (Bundesgerichtshof) stayed the proceedings and referred to the Federal Constitutional Court the question of whether § 1906 sec. 3 BGB in the version of 18 February 2013 is compatible with Art. 3 sec. 1 GG (Art. 100 sec. 1 sentence 1 GG).

Key considerations of the Senate:

1. The referral is admissible.

a) The referral procedure under Art. 100 sec. 1 GG serves to monitor the compatibility of specific legislative decisions as to their compatibility with the Basic Law. A mere omission by the legislature cannot be the subject matter of a specific judicial review. However, these principles do not bar the referral of a specific norm that is based on the reasoning that, with regard to the challenged provision, there is a requirement that this be fleshed out with a specific constitutional duty of protection - a condition the referring court, however, found to be lacking here.

b) The referral has not been rendered inadmissible by the fact that the individual concerned in the initial proceedings died while the referral proceedings were pending. The function of judicial review directed to clarifying the law and bringing about satisfaction can justify, by way of exception, answering a referred question even after an event that would normally resolve the matter, if a sufficiently weighty, fundamental need for clarification persists. The conditions for which the survival of an interest in legal protection should be affirmed depend ultimately on the circumstances of the individual case.

2. It violates the state’s duty of protection under Art. 2 sec. 2 sentence 1 GG that persons under custodianship who cannot form a free will are entirely excluded from necessary medical treatment if that treatment conflicts with their natural will, yet they cannot be placed in an accommodation associated with the deprivation of liberty because the requirements for such accommodation are not satisfied.

a) The fundamental right to life and physical integrity does not only guarantee a subjective defensive right of the citizen against the state. At the same time, it constitutes an objective value decision of the Constitution that establishes duties of protection on the part of the state. The establishment and normative implementation of a concept of protection is a matter for the legislature, which generally also has leeway for assessment, evaluation and design even if it is fundamentally obliged to take measures to protect a legal interest. The Federal Constitutional Court can find that there has been a violation of such a duty of protection only if protective precautions have either not been taken at all, or if the arrangements and measures taken are plainly unsuitable or entirely inadequate, or if they fall significantly short of the objective of protection.

For persons under custodianship who, by reason of a mental illness or mental or psychological handicap, cannot recognise the necessity of a medical measure, or who cannot act in accordance with this realisation, the general duty of protection consolidates under certain narrow conditions into a specific duty of protection. The legislature must provide a system of aid and protection for persons under custodianship who, in this sense, cannot recognise the necessity of medical treatment to avert or combat serious illnesses, or who cannot act in accordance with that realisation. It must then be possible in serious cases, as an ultima ratio, to take measures for medical examination and treatment even by overriding the contrary natural will of such persons under custodianship. This duty of protection follows from the specific need for aid of persons under custodianship. The state community cannot simply abandon helpless persons to their own devices.

b) Taking medical action against the natural will of a person under custodianship conflicts with that person’s right of self-determination and fundamental right to physical integrity. Under the Basic Law, all persons are, as a rule, free to decide as they see fit concerning interferences with their physical integrity and concerning how to deal with their own health. In deciding whether and to what extent to allow an illness to be diagnosed and treated, they are not required to follow a standard of objective reasonableness. However, the state’s duty of protection takes on special weight in the case of a serious threat to the health of a person who is unable to protect himself or herself. If no special treatment risks are associated with the medical measure necessary to avert the threat, and if there is also no viable reason to believe that the refusal of treatment does indeed reflect the original free will of the person under custodianship, the result of balancing of conflicting fundamental rights is predetermined. The state’s duty of protection towards helpless persons then outweighs in relation to the person’s right to self-determination and right to physical integrity, and prevails.

c) In implementing this duty of protection, the legislature has leeway for the more detailed design of specific protective measures. In particular, the legislature has leeway in designing the substantive requirements for therapeutic treatment and the procedural rules for safeguarding the self-determination and physical integrity of the persons concerned. As the specific duty of protection ultimately prevails over the concerned individual’s right to self-determination and physical integrity, the legislature is required, in the interest of the greatest possible respect for the subordinated fundamental freedoms of the person concerned, to establish requirements for coercive medical treatment that are demanding in content and formulated with sufficient specificity. In this regard, the legislature must in particular take account of the fact that this is not a matter of ensuring medical protection according to the standards of objective reasonableness. Rather, the free will of the person under custodianship must be respected. The procedural provisions must ensure that coercive medical treatment may be undertaken only if it is certain that there is in fact no free will of the person under custodianship, that the natural will that exists nonetheless is taken into account as far as possible, and that the substantive conditions for coercive treatment (the threat of substantial impairment of health, treatment that does not involve too intensive an interference, a strong prospect of success) are demonstrably met.

d) The obligation of the state to afford protection to a person under custodianship who is incapable of having a free will and in a helpless situation, and if need be to subject that person to coercive medical treatment under the aforesaid conditions, is also consistent with the United Nations Convention on the Rights of Persons with Disabilities, the European Convention on Human Rights, and the case-law of the European Court of Human Rights.

3. The law of custodianship under the Civil Code provides for coercive medical treatment only for those persons under custodianship who are accommodated in a closed facility under § 1906 sec. 1 sentence 1 BGB (§ 1906 sec. 3 sentence 1 no. 3 BGB). In its order for referral, the Federal Court of Justice set forth in a constitutionally unobjectionable manner that in § 1906 BGB the legislature intended to establish a legal basis for coercive medical treatments only for persons under custodianship in a closed facility, and unequivocally gave expression to this intent in § 1906 BGB. Therefore there is no possibility of an interpretation of § 1906 BGB ¬– including one that is in conformity with the Constitution – that would permit a coercive medical treatment even without accommodation associated with deprivation of liberty.

Persons under custodianship who are in in-patient treatment and who de facto are not able to remove themselves spatially cannot be placed in an accommodation associated with the deprivation of liberty under § 1906 sec. 1 no. 2 BGB, and therefore cannot be subjected to coercive treatment under § 1906 sec. 3 BGB either. Thus, even if such individuals undoubtedly were to meet in their persons all the substantive conditions for a constitutionally required duty of protection, and the procedural requirements could be met, these persons are still not granted the protection required under Art. 2 sec. 2 sentence 1 GG. To that extent, the legal situation for persons under custodianship does not satisfy the constitutional requirements.

4. As the situation of statute already violates the state’s duty of protection under Art. 2 sec. 2 sentence 1 GG, the questions that arise with regard to Art. 3 GG may be left unanswered here. The same applies to the question of whether the prohibition on disfavouring set out in Art. 3 sec. 3 sentence 2 GG has been violated, because in the case at hand, that provision requires no more than the duty of protection under Art. 2 sec. 2 sentence 1 GG.

5. As the present regulatory content of the referred § 1906 sec. 3 BGB as such does not violate the Basic Law, but rather the legislature’s failure to fulfil a specific duty of protection for a particular group of persons, the ruling that this deficit is unconstitutional is sufficient here. It lies within the legislature’s discretion whether to remedy the gap in the protection by including the group of persons concerned under § 1906 sec. 3 BGB while eliminating in that respect the requirement of an accommodation that is associated with deprivation of liberty, or to remedy it separately outside that norm. The legislature must promptly remedy the ascertained gap in the protection of persons under custodianship who, in the face of the threat of a substantial damage to their health, cannot recognise the necessity of the medical measure or cannot act in accordance with that realisation, and therefore must, if need be, also rely on protection by medical care against their natural will.

In view of the fact that the situation of law currently in effect entirely denies the possibility of treatment for this group of persons even in the face of the threat of serious or even life-threatening damage to their health, it must be ordered that, for the time being, § 1906 sec. 3 BGB applies accordingly until a new provision is enacted.