Bundesverfassungsgericht

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Allowing coercive medical treatment only in respect of persons under custodianship who are confined in an institution 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

As the law currently stands, vulnerable persons who are in-patients in an open institution and are unable to move about without assistance cannot, even when urgently necessary, be treated against their natural will. In an order published today, the First Senate of the Federal Constitutional Court held that this constitutes a violation of the state’s duty of protection following from Art. 2(2) first sentence of the Basic Law (Grundgesetz – GG). The legislator must fill this gap in protection without undue delay. Given that, as the law currently stands, there is no possibility of treatment, even in cases of life-threatening health impairments, for persons under custodianship who are in-patients and are unable to remove themselves from the site of coercive medical treatment, the Senate ordered that, until a new provision enters into force, § 1906(3) of the Civil Code (Bürgerliches Gesetzbuch – BGB) applies accordingly to that group of persons.

Facts of the case:

The affected person in the initial proceedings, who is now deceased, suffered from schizoaffective psychosis. For this reason, she had been under custodianship since the end of April 2014. In early September 2014, she was briefly admitted to a care facility. While there, she refused to take the medication prescribed to treat an autoimmune disease, refused to eat and expressed the intent to commit suicide. After she had been transferred to a closed dementia unit at a hospital, a measure approved by a judge, she was subject to coercive medical measures on the basis of several orders of the custodianship court. Further examinations confirmed that the affected person also suffered from breast cancer. At that time, she was severely weakened physically and could no longer walk or move herself around in a wheelchair. Mentally, she was able to express her natural will. In response to a judge’s questions, she repeatedly stated that she did not wish to be treated for cancer. Thereupon her custodian applied for authorisation to extend the patient’s confinement and to carry out coercive medical measures, in particular to treat the breast cancer. The Local Court (Amtsgericht) rejected the application for confinement and coercive treatment. It held that as the statutory requirements for doing so were not fulfilled, the affected person could not be confined in an institution pursuant to § 1906(1) BGB, and therefore could not be subjected to coercive medical treatment pursuant to § 1906(3) BGB. The custodian’s complaint to the Regional Court (Landgericht) was unsuccessful. Following the custodian’s complaint on points of law (Rechtsbeschwerde), the Federal Court of Justice (Bundesgerichtshof) suspended the proceedings and referred to the Federal Constitutional Court the question whether § 1906(3) BGB in its version of 18 February 2013 is compatible with Art. 3(1) GG (Art. 100(1) first sentence GG).

Key considerations of the Senate:

1. The referral is admissible.

a) In referral proceedings under Art. 100(1) GG, the Federal Constitutional Court reviews specific legislative decisions as to their compatibility with the Basic Law. Mere omissions by the legislator cannot be the subject matter of specific judicial review proceedings. However, these principles do not preclude the referral of a provision that, in the view of the referring court, lacks elements that would be required by a specific constitutional duty of protection.

b) The referral was not rendered inadmissible by the fact that the person concerned in the initial proceedings died in the course of the referral proceedings. The purpose of judicial review proceedings, which is to clarify the law and uphold the peaceful legal order, may justify, in exceptional cases, answering a referred question even after an event that would normally render the matter moot if there is a sufficiently weighty and fundamental need to clarify the question. The conditions under which an interest in legal protection persists ultimately depend on the circumstances of the individual case.

2. It constitutes a violation of the state’s duty of protection following from Art. 2(2) first sentence GG that persons under custodianship who cannot reach a decision informed by their free will are entirely excluded from necessary medical treatment if that treatment is against their natural will, yet they cannot be confined in an institution because the requirements for such confinement are not met.

a) The fundamental right to life and physical integrity not only guarantees the individual a defensive right against state interference, but also constitutes an objective decision on constitutional values that establishes duties of protection on the part of the state. It is for the legislator to establish and implement a concept of protection. In this respect, the legislator generally has a margin of appreciation, assessment and manoeuvre, even if it is in principle obliged to take measures to protect a legal interest. The Federal Constitutional Court can only find a violation of such a duty of protection if safeguards have either not been put in place at all, or if the provisions enacted and measures taken are evidently unsuitable, entirely inadequate, or fall significantly short of achieving the required aim of protection.

In respect of persons under custodianship who, due to mental illness or mental or psychological disability, lack the mental capacity for insight into the necessity of medical treatment, or for acting upon such insight, the general duty of protection consolidates, under certain narrow conditions, into a specific duty of protection. The legislator is obliged to provide a system of assistance and protection for persons under custodianship who cannot appreciate the necessity of medical treatment to prevent or fight serious illnesses, or cannot act upon it. In serious cases, it must be possible, as a last resort, to carry out medical examination and treatment measures, even if this entails having to override the opposing natural will of persons under custodianship. This duty of protection follows from the specific need for assistance of persons under custodianship. The state and society may not simply abandon helpless persons.

b) Medical treatment administered against the natural will of persons under custodianship conflicts with their right to self-determination and their fundamental right to physical integrity. Under the Basic Law, everyone is in principle free to decide on interferences with their physical integrity and to deal with their health as they see fit. An individual is not required to follow a standard of objective reasonableness when deciding whether and to what extent to seek diagnosis and treatment. However, the state’s duty of protection takes on special weight where persons who cannot protect themselves are at risk of considerable health impairments. If no special risks are involved in the medical treatment necessary to avert the risk, and if there are no compelling reasons to believe that the refusal of treatment is informed by the underlying free will of the person under custodianship, the outcome of the balancing between the conflicting fundamental rights is predetermined. The state’s duty of protection towards vulnerable persons then prevails over their right to self-determination and their right to physical integrity.

c) In fulfilling this duty of protection, the legislator has latitude in setting out the details of specific protective measures. In particular, the legislator has latitude to set out the substantive requirements for curative treatment and the procedural rules safeguarding the self-determination and physical integrity of the affected persons. Given that the specific duty of protection ultimately prevails over the right to self-determination and physical integrity of the affected persons, the legislator is, in the interest of the greatest possible respect for the fundamental freedoms that must stand back in such cases, obliged to provide for stringent and sufficiently specific substantive requirements in respect of coercive medical treatment. In this regard, the legislator must take into account that this is not a matter of ensuring medical protection according to standards of objective reasonableness; rather, the free will of persons under custodianship must be respected. Procedural safeguards must ensure that coercive medical treatment may only be undertaken if it is certain that the person under custodianship is unable to decide on the basis of a free will, that the natural will, which is nevertheless present, is taken into account as far as possible, and that the substantive prerequisites for carrying out coercive treatment (risk of considerable health impairments, treatment that is not too intrusive, good prospects of success) are demonstrably met.

d) The state’s duty to protect vulnerable persons under custodianship who lack the capacity to reach a decision informed by their free will, and, where necessary, to subject them to coercive medical treatment under the conditions set out above, is also in conformity 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. Custodianship law in the Civil Code only provides for coercive medical treatment in respect of persons under custodianship who are confined in an institution pursuant to § 1906(1) first sentence BGB (§ 1906(3) first sentence no. 3 BGB). In its order of referral, the Federal Court of Justice laid out in a constitutionally unobjectionable manner that the legislator intended to provide a statutory basis for coercive medical treatment in § 1906 BGB only for persons under custodianship who are confined in an institution, and unequivocally expressed this intent in that provision. Therefore, § 1906 BGB cannot be interpreted in conformity with the Constitution by presuming that coercive medical treatment is also permissible in respect of persons not confined in an institution.

Persons under custodianship who are treated as in-patients and who are de facto unable to remove themselves from the site of treatment cannot be confined in an institution pursuant to § 1906(1) no. 2 BGB, and therefore cannot be subjected to coercive treatment pursuant to § 1906(3) BGB. Thus, even if these persons under custodianship unquestionably met all the substantive requirements falling under the state’s constitutional duty of protection, and all procedural requirements were satisfied, they would still not receive the required protection following from Art. 2(2) first sentence GG. In this respect, the legal situation for persons under custodianship does not satisfy the constitutional requirements.

4. Given that the law as it currently stands violates the state’s duty of protection following from Art. 2(2) first sentence GG, the questions arising with regard to Art. 3 GG can be left unanswered here. This also applies to the question whether the prohibition of disadvantaging set out in Art. 3(3) second sentence GG has been violated, because in the present case, that provision does not give rise to more stringent requirements than the duty of protection following from Art. 2(2) first sentence GG.

5. As the Court did not find that the present content of § 1906(3) BGB as such violates the Basic Law, but that the legislator failed to fulfil a specific duty of protection for a particular group of persons, it is sufficient to find that this shortcoming is unconstitutional. It is for the legislator to decide whether to remedy the gap in protection by including the group of persons in question in § 1906(3) BGB, eliminating the requirement of confinement in an institution for coercive treatment, or to remedy it separately, i.e. not within that provision. The legislator must, without undue delay, remedy the gap in protection in respect of persons under custodianship who, where there is imminent risk of considerable impairments to their health, lack the mental capacity for insight into the necessity of needed medical treatment or for acting upon this insight, and who therefore require, where necessary, medical care against their natural will.

Given that the law as it currently stands entirely denies the possibility of treatment for this group of persons even where they are at risk of considerable or even life-threatening health impairments, it is ordered that § 1906(3) BGB shall apply accordingly to this group of persons until new provisions have been enacted.