Bundesverfassungsgericht

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Constitutional requirements regarding the use of physical restraints on patients confined under public law in psychiatric hospitals

Press Release No. 62/2018 of 24 July 2018

Judgment of 24 July 2018
2 BvR 309/15, 2 BvR 502/16

The use of physical restraints on patients [in psychiatric hospitals] constitutes an interference with their fundamental right to freedom of the person. This fundamental right, in conjunction with the principle of proportionality, gives rise to strict requirements regarding the justification of such interferences: the legal basis for the interference must be sufficiently specific and satisfy the relevant substantive and procedural requirements. Where physical restraints are not only used as a short-term measure, they constitute a deprivation of liberty for which Art. 104(2) of the Basic Law (Grundgesetz – GG) additionally requires, at the procedural level, that the measure be ordered by judicial decision (Richtervorbehalt). Where all limbs are physically restrained, and not merely for a short period of time, this qualifies as a separate act of deprivation of liberty, due to the particular weight of the interference, even if the person concerned is already subjected to an ongoing deprivation of liberty; this type of restraint thus requires a separate judicial decision, and is not covered by a judicial order of confinement in a psychiatric hospital. Art. 104(2) fourth sentence GG obliges the legislature to enact procedural provisions governing judicial orders authorising the use of physical restraints that amount to a deprivation of liberty.

For these reasons, the Second Senate of the Federal Constitutional Court has declared the relevant legal provision of the Land Baden-Württemberg unconstitutional in its judgment pronounced today, following two constitutional complaints. It held that the Land legislatures of Baden-Württemberg and of the Free State of Bavaria – the latter has not yet enacted any specific legal basis governing the use of physical restraints – are obliged to take steps to ensure conformity with the Constitution by 30 June 2019.

Facts of the case:

I. Regarding constitutional complaint 2 BvR 502/16, the complainant was subjected to a seven-point restraint – i.e. strapped to a hospital bed, with restraints securing both arms, both legs, the stomach, chest and forehead –; the use of restraints was ordered by a doctor, lasted for eight hours, and took place while the complainant was confined in a psychiatric hospital for the duration of approximately twelve hours altogether. The Bavarian Confinement Act (Bayerisches Unterbringungsgesetz – BayUnterbrG), which served as the legal basis for the temporary confinement of the complainant, does not contain specific provisions providing legal authorisation for ordering the use of physical restraints. The complainant took legal action against the Free State of Bavaria, seeking material damages and damages for personal suffering in relation to injuries caused by the physical restraint measure. The action was unsuccessful. His constitutional complaint challenges the decisions rendered in the liability proceedings against the state (Amtshaftungsverfahren).

II. Regarding constitutional complaint 2 BvR 309/15, the person concerned was confined in a closed psychiatric hospital and subjected to a five-point restraint – i.e. strapped to a hospital bed, with restraints securing all limbs and the stomach – based on repeated doctors’ orders over the course of several days. The complainant, the guardian ad litem (Verfahrenspfleger) of the confined person, directly challenges the local court order authorising the use of physical restraints, and indirectly challenges § 25(3) of the Baden-Württemberg Act regarding Assistance and Protective Measures for Mental Illnesses (Baden-Württembergisches Gesetz über Hilfen und Schutzmaßnahmen bei psychischen Krankheiten – PsychKHG BW), on which the court order was based. He lodges the constitutional complaint in his own name, which is admissible.

Key considerations of the Senate:

The use of physical restraints on patients constitutes an interference with their fundamental right to freedom of the person (Art. 2(2) second sentence in conjunction with Art. 104 GG).

1. Art. 2(2) second sentence GG states that freedom of the person is “inviolable”. This fundamental constitutional decision enshrines the right to freedom as a particularly high-ranking legal interest; interferences can only be justified by important reasons. This right protects the actual physical freedom of movement, as provided for in the existing general legal order, against state interference. Whether there is an interference with the personal (physical) freedom is contingent only upon the actual, natural will of the person concerned. Lack of mental capacity does not preclude the protection of Art. 2(2) GG from the outset; this protection is also guaranteed to persons with mental illnesses and persons who lack full legal capacity. Mentally ill persons, in particular, often perceive restrictions of their liberty, the necessity of which cannot be conveyed to them, as especially threatening.

2. a) Art. 2(2) second sentence GG protects against both restrictions of liberty (freiheitsbeschränkende Maßnahme) and deprivations of liberty (freiheitsentziehende Maßnahme); the Federal Constitutional Court distinguishes between the two types of measures based on the intensity of the interference. An act constitutes a restriction of liberty if someone is prevented by public authority, against their will, from going to a place, or staying at a place, which would otherwise be (factually and legally) open to them. An act constitutes a deprivation of liberty, the most serious form of liberty restriction, if it cancels the freedom of movement – that would generally exist under the relevant factual and legal circumstances – in every respect. Deprivation of liberty is characterised by the particular intensity of the interference as well as by the duration of the measure, which goes beyond mere short-term application.

b) At least five-point or seven-point restraints, which entail that all limbs of the person concerned are strapped to a bed, constitute a deprivation of liberty within the meaning of Art. 104(2) GG, unless they are only applied for a short period of time. In this respect, a short-term application can generally be presumed where it is foreseeable that the measure will not last longer than approximately half an hour. In the event that the person concerned is strapped to the bed by way of five-point or seven-point restraints, their freedom of movement is completely cancelled, taking away the remaining freedom to move within the closed psychiatric ward – or at least within the respective patient room –, a freedom that had still been available while they were confined in a psychiatric hospital. This type of physical restraint is imposed to keep the persons concerned in their hospital beds, completely unable to move.

3. Due to the particular intensity of the interference, physical restraint of all limbs that is not only used for a short period of time must be qualified as a separate act of deprivation of liberty; such measures thus require a separate judicial decision under Art. 104(2) first sentence GG, including in cases where the person concerned is already subjected to an ongoing deprivation of liberty. In the context of enforcing a confinement, the judicial order authorising the deprivation of liberty in the form of confinement does, in principle, cover disciplinary measures such as detention as well as special safety measures such as the confinement in a smaller restricted area within the institution; by resorting to stricter means, these measures merely change the manner in which the deprivation of liberty already imposed is enforced. 

However, compared to those measures, both five-point and seven-point restraints constitute interferences of such weight that they are not covered by the judicial order of confinement; and it is hence justified to qualify them as separate acts of deprivation of liberty. When these types of physical restraints are used, the freedom of movement of the persons concerned is completely cancelled in every respect. As a result, the freedom of movement is curtailed beyond the restrictions resulting from the confinement in a closed institution.

In the case of five-point or seven-point restraints, the particular intensity of the interference furthermore follows from the fact that the persons concerned experience an intentional interference with their freedom of movement as all the more threatening, the more the relevant situation makes them feel helpless and powerless. In addition, interferences that take place during confinement will often affect persons who, due to their psychological constitution, will be particularly sensitive to the disregard of their will. Furthermore, the persons concerned are completely dependent on timely assistance provided by care staff to deal with their bodily needs. Compared to other coercive measures, the persons concerned therefore generally perceive the use of physical restraints as particularly harmful. In addition, even if restraints are applied correctly, there is a risk that the persons concerned suffer damage to their health, such as deep vein thrombosis or pulmonary embolism, due to the prolonged immobilisation.

II. The legislature may, in principle, permit serious interferences with fundamental rights such as the use of physical restraints. However, such interferences can only be justified subject to strict requirements deriving from the fundamental right to freedom of the person and the principle of proportionality: the legal basis authorising such interferences must be sufficiently specific and provide for the substantive requirement that physical restraints only be used as a last resort, where less restrictive means are not available (anymore). Besides, the legal basis must provide for procedural requirements protecting the fundamental rights of the confined persons, who are in need of particular protection by way of procedural safeguards with respect to their right to freedom of the person. These requirements include that the use of physical restraints be ordered and monitored by a doctor – the use of five-point or seven-point restraints must, in principle, be accompanied by a member of the medical or care staff providing one-to-one supervision –; and that the relevant reasons for the measure, its implementation, duration and the type of monitoring be documented. After the measure has ended, the persons concerned must furthermore be informed about the possibility of having a court review the permissibility of the use of physical restraints. The requirements that the European Court of Human Rights has derived from Art. 3 of the European Convention on Human Rights do not go beyond the standards arising under Art. 2(2) GG. Nor does the UN Convention on the Rights of Persons with Disabilities merit a different conclusion.

III. 1. For measures amounting to a deprivation of liberty, Art. 104(2) GG adds the additional procedural requirement that a judicial decision be obtained; this requirement, which is not subject to legislative discretion, applies in addition to the requirement of a (formal) statutory provision applicable to interferences with the fundamental right to inviolable freedom under Art. 2(2) third sentence GG. Art. 104(2) fourth sentence GG obliges the legislature to enact provisions that specify the requirement of a judicial decision in procedural terms. The effectiveness of the protection of fundamental rights afforded by the requirement that a judicial decision be obtained depends, to a significant extent, on the procedural regulations governing the respective subject area. In order to give consideration to the specific characteristics of the different contexts in which such measures are applied, the legislature must provide for a procedural regime that is tailored to the respective measure of deprivation of liberty. It must also be ensured that before the deprivation of liberty is enforced, persons concerned are afforded all safeguards deriving from the rule of law that are provided in judicial proceedings. Even though Art. 104(2) GG already contains an existing and directly applicable legal guarantee, the regulatory duty following from Art. 104(2) fourth sentence GG is by no means obsolete. Failure on the part of the legislature to fulfil this regulatory duty renders the legal provision authorising the relevant deprivation of liberty unconstitutional.

2. The requirement that a judicial decision be obtained serves to strengthen and safeguard the fundamental right of Art. 2(2) second sentence GG. It aims at preventive oversight of the measure by an independent and neutral body. The Basic Law rests on the assumption that judges are the best and most reliable guarantors for ensuring that the rights of the persons concerned are respected in the individual case, due to the personal and professional independence of judges and the fact that they are bound only by the law. It is incumbent upon all state organs to ensure that the requirement that a judicial decision be obtained, as a means of safeguarding fundamental rights, takes effect in practice. As a result, the state is obliged under constitutional law to guarantee that a competent judge is available – at least during daytime hours – and to provide the judges with the means to adequately exercise their judicial functions in this regard.

3. The deprivation of liberty must, in principle, be authorised by prior judicial order. Seeking a judicial decision after the measure has already begun is only permissible if the deprivation of liberty serves a constitutionally legitimate goal that could not be achieved if a judicial decision had to be obtained first. Yet this will frequently be the case where the use of five-point or seven-point restraints is ordered in order to avert an imminent danger posed by the persons concerned to themselves or others.

4. In such cases, Art. 104(2) second sentence GG requires that a judicial decision be obtained without delay. The constituent element “without delay” must be interpreted as requiring that a judicial decision be obtained without any undue delay, i.e. a delay not justified by factual reasons. Factual reasons justifying delays in obtaining a judicial decision may arise from necessary procedural safeguards that serve to protect the person concerned and that apply accordingly to the use of five-point or seven-point restraints on persons in confinement (e.g. the requirement to hear the patient in person and to involve the guardian ad litem). If a doctor orders, on permissible grounds, the use of physical restraints during night time without obtaining a prior judicial decision, it will therefore generally only be possible to obtain a subsequent judicial decision without delay the following morning. In this context, on-call duty performed by judges on all days of the week is imperative for ensuring the protection of the persons concerned; Taking guidance from § 758a(4) second sentence of the Code of Civil Procedure (Zivilprozessordnung – ZPO), the judicial on-call duty must cover the time period from 6:00 a.m. to 9:00 p.m.

IV. According to these standards, the constitutional complaints are well-founded. The court decisions violate the respective fundamental rights of the person concerned in constitutional complaint 2 BvR 309/15 and of the complainant in constitutional complaint 2 BvR 502/16 arising from Art. 2(2) second and third sentences in conjunction with Art. 104(1) first and second sentences GG.

For the most part, § 25 PsychKHG BW satisfies the requirements of Art. 2(2) second and third sentences in conjunction with Art. 104(1) first sentence GG. In particular, the provision provides that the restriction of personal freedom be based on an important reason, namely guaranteeing safety in recognised institutions, protecting persons concerned from serious dangers they pose to themselves and to significant legal interests of third parties. With the requirement of an imminent and serious danger, the legal provision sets a high threshold for interferences; it also provides for procedural safeguards that satisfy the proportionality requirements.

However, the provision does not set out any requirement that the person concerned be informed, upon termination of the use of restraints or a functionally equivalent measure, about the possibility to seek a judicial review of the lawfulness of the relevant measure. Moreover, the legislature did not fulfil its regulatory duty deriving from Art. 104(2) fourth sentence GG to the extent that even for five-point or seven-point restraints, the provision requires only a doctor’s order, rather than a judicial decision. There is no constitutional legal basis for the use of five-point restraints on the person concerned in constitutional complaint 2 BvR 309/15.

The challenged order of the Ludwigsburg Local Court (Amtsgericht) thus violates the fundamental right to freedom of the person concerned in constitutional complaint 2 BvR 309/15. It is primarily incumbent upon the regular courts to review the compatibility of the invoked legal basis with the Basic Law, to grant preliminary legal protection where necessary and, if the outcome of the review [of constitutionality] is negative, to refer the matter to the Federal Constitutional Court by way of an application for specific judicial review of statutes (konkrete Normenkontrolle). Moreover, the regular courts may have to review ex officio whether the statutory basis for an interference is constitutional – irrespective of whether the respective claimant raises objections in this regard. In the challenged decision, the Local Court reasoned that the Baden-Württemberg legislature had granted doctors of recognised institutions the authority to order special safety measures, but that it did not impose a requirement to obtain a judicial decision. In view of this, the Local Court concluded that it could only review the use of restraints as to whether the doctors had observed § 25 PsychKHG BW. The Local Court thus only reviewed whether the ordering of the use of restraints had been lawful on the part of the doctors without calling into question the constitutionality of the legal basis.

2. The decision of the Munich Higher Regional Court (Oberlandesgericht) in the liability proceedings against the state violates the fundamental right to freedom of the complainant in constitutional complaint 2 BvR 502/16. Contrary to the view of the Higher Regional Court, Art. 12(1) in conjunction with Art. 19 BayUnterbrG provides no sufficient legal basis for using physical restraints on the complainant. The provisions neither satisfy the requirements of legal specificity deriving from Art. 104(1) GG, since they do not contain specific regulations on ordering the use of physical restraints in the context of confinements under public law in psychiatric hospitals, nor do they require that a judicial order be obtained to authorise the deprivation of liberty resulting from the seven-point restraint carried out in the present case.

V. The fact that § 25 PsychKHG BW is partially unconstitutional as regards the use of physical restraints does not lead to the provision being partially void. If the provision were invalid with immediate effect, this would eliminate the basis for protecting the life and physical integrity of the persons concerned themselves and for protecting significant legal interests of third parties against serious danger, given that the use of physical restraints would no longer be permissible under any circumstances, leaving the legislature and professionals in the field no possibility to adapt to the new situation and to develop alternative means providing equivalent protection. This would result in a gap in protection as it would, at the very least, put at risk the fundamental rights of confined persons, hospital staff and other patients. When balancing the provision’s constitutional shortcomings against the affected fundamental rights, it follows that the interference can be tolerated during a transitional period: the shortcomings of § 25 PsychKHG BW concern the procedural requirements for a measure that would in principle be permissible under substantive law; by contrast, if the provision was declared partially void, the substantive protection of the fundamental rights of persons concerned and third parties as such would be jeopardised.

VI. 1. In the Land Baden-Württemberg, the requirement that a judicial decision be obtained, as deriving from Art. 104(2) GG and applicable at least to five-point and seven-point restraints, must be directly applied during a transitional period until 30 June 2019. During this period, the procedural regulations in §§ 312 et seq. and §§ 70 et seq. of the 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) can be applied accordingly. In addition, during the transitional period the fundamental right to freedom of the person directly imposes an obligation on the attending doctors to inform the persons concerned about the possibility to seek a judicial decision after the end of the measure.

2. In the Free State of Bavaria, there is currently no constitutional statutory basis at all for ordering the use of physical restraints on persons confined under public law in a psychiatric hospital. Nevertheless, the use of such measures may be permissible during a transitional period until 30 June 2019.

a) The Federal Constitutional Court may temporarily tolerate an unconstitutional situation in order to avoid a situation that would be even more at odds with the constitutional order than the current situation. As long as the Bavarian legislature has not yet decided how it intends to remedy the situation of unconstitutionality and whether it wants to continue the practice of using physical restraints as a special safety measure, a gap in protection would also arise in the Free State of Bavaria. It is necessary to balance the established constitutional shortcomings against the consequences of an immediate ban on physical restraints: in this regard, the interest in permitting, temporarily, the use of physical restraints for the purposes of protecting the legal interests deriving from Art. 2(2) first sentence GG prevails, just as in the case of Baden-Württemberg. In the Free State of Bavaria, too, the use of physical restraints must temporarily be tolerated, even though this would generally require a legal basis which currently does not exist.

b) However, this does not mean that, during the transitional period, it would be permissible to use physical restraints on confined persons at will in the Free State of Bavaria. Rather, given the high value attached to the fundamental right to freedom of the person, any use of physical restraints must be reviewed as to whether and how long the measure is indispensable to avert an imminent and serious danger posed by the persons concerned to themselves or to other significant legal interests. Additionally, at least for the use of five-point or seven-point restraints, the requirement deriving from Art. 104(2) GG that a judicial decision be obtained is directly applicable. The persons concerned must also be informed about the possibility of seeking a judicial review of the measure after it has ended.