In a judgment pronounced today, the First Senate of the Federal Constitutional Court held that § 1906a(1) first sentence no. 7 of the Civil Code (Bürgerliches Gesetzbuch – BGB) in the version in force until 31 December 2022 (old version) and § 1832(1) first sentence no. 7 of the Civil Code (new version) with the same wording, which entered into force on 1 January 2023, are incompatible with Art. 2(2) first sentence, second alternative of the Basic Law (Grundgesetz – GG) in part. The requirement that coercive medical treatment must be administered in an inpatient hospital setting in all cases without exception is not justified under constitutional law. The legislator must enact new provisions by 31 December 2026 at the latest. Until new legislation is adopted, the current law remains applicable.
If a health assessment, therapeutic treatment or medical intervention is against the natural will of a person under custodianship, a custodian can consent to such coercive medical treatment. Under current law, such consent must be approved by the custodianship court and requires that the coercive medical treatment be administered while the person under custodianship is in hospital as an inpatient.
The statutory requirement that coercive medical treatment must be administered in an inpatient hospital setting in all cases 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 this absolute requirement. This is the case only when it is to be expected that these impairments can be avoided, or at least significantly reduced, when 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 that treatment in this facility does not result in affected persons facing other impairments to their physical integrity or other interest of comparable weight that is protected by fundamental rights.
This decision was taken with 5:3 votes. Justice Wolff filed a dissenting opinion.
Facts of the case:
If a health assessment, therapeutic treatment or medical intervention is against the natural will of a person under custodianship, a custodian responsible for the relevant affairs can consent to such coercive medical treatment. The prerequisites for a custodian’s consent to coercive medical treatment are set out in § 1906a(1) first sentence of the Civil Code (old version) and § 1832(1) first sentence of the Civil Code (new version). One prerequisite is that coercive medical treatment must be administered in an inpatient hospital setting, where the necessary standard of medical care, including any follow-up care, is ensured.
The custodian’s consent to any coercive medical treatment must be approved by the custodianship court (§ 1906a(2) Civil Code, old version and § 1832(2) Civil Code, new 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 the approval of the custodianship court.
In inserting § 1906a (old version) into the Civil Code, the legislator intended to close a gap in protection identified by the Federal Constitutional Court. In its order of 26 July 2016 (Decisions of the Federal Constitutional Court, Entscheidungen des Bundesverfassungsgerichts – BVerfGE 142, 313), the Court held that Art. 2(2) first sentence of the Basic Law requires 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. Such coercive medical treatment must be subject to strict substantive and procedural requirements in order to ensure that the affected freedoms are taken into consideration to the greatest possible extent. According to the 2016 order, it was incompatible with the state’s duty of protection following from Art. 2(2) first sentence of the Basic Law that persons under custodianship could not, under the law as it stood at the time, 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. According to the Federal Government’s explanatory memorandum to the draft act, § 1906a of the Civil Code (old version) was designed to close this gap in protection by providing that coercive medical treatment be administered in an inpatient hospital setting, rather than requiring confinement in an institution.
In the initial proceedings, the person concerned, who has serious mental illnesses, challenges the custodianship court’s failure to approve the administration of a neuroleptic drug – a coercive medical measure – in the housing group where she resides, rather than in hospital. She has been under custodianship since 2000, including with regard to health matters and the determination of her place of residence. A complaint against the decision of the custodianship court to reject the application for approval was unsuccessful. Following a complaint on points of law (Rechtsbeschwerde), the Federal Court of Justice (Bundesgerichtshof) suspended the proceedings 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 when it is administered in a 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 affected by being placed into hospital for coercive medical treatment.
Key considerations of the Senate:
§ 1906a(1) first sentence no. 7 of the Civil Code (old version) is in part incompatible with Art. 2(2) first sentence, second alternative of the Basic Law.
I. The provision affects the scope of protection of Art. 2(2) first sentence, second alternative of the Basic Law. While it is in principle permissible to restrict coercive medical treatment to an inpatient hospital setting with a specified standard of care, an absolute requirement that coercive medical treatment must be administered in an inpatient hospital setting in all cases without exception is not justified under constitutional law.
1. The impairments to physical integrity resulting from the challenged provision must be considered as an interference with the right to self-determination in respect of the physical integrity of persons under custodianship who do not have the capacity to consent. With the challenged provision, the state aims to override the natural will of affected persons who oppose the administration of coercive medical treatment in an inpatient hospital setting and, by requiring the approval of the custodianship court, undertakes shared responsibility for any resulting impairments to the right to self-determination and physical integrity.
2. The interference is not justified under constitutional law.
a) The legislator pursues constitutionally legitimate purposes with the challenged provision, and the provision is suitable and necessary under constitutional law for achieving these purposes.
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. 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 imminent risk of considerable impairment 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. 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, the legislator must provide for the possibility of coercive medical treatment for persons under custodianship who lack the capacity to consent. In requiring that such treatment be administered in hospital, the legislator pursues the constitutionally legitimate purpose of providing for substantive and procedural safeguards when fulfilling its duty of protection. These safeguards are based on duties of protection following from fundamental rights; they include protecting affected persons from coercive measures in their home, having multi-professional teams in hospital review whether the prerequisites for coercive medical treatment are met, preventing the administration of coercive medical treatment that is not necessary and is based on misguided incentives even prior to a decision by the custodian and the custodianship court, and ensuring proper medical care for affected persons.
b) Nevertheless, the requirement that coercive medical treatment must be administered in an inpatient hospital setting without exception is disproportionate in the strict sense (inappropriate) with regard to the aforementioned scenarios. In order for a measure to be appropriate, and thus proportionate 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.
aa) The interference with the right to self-determination and physical integrity resulting from the challenged provision is serious, even very serious in certain cases. Any coercive medical treatment overrides the natural will of affected persons opposing such treatment. A requirement that affected persons be treated in hospital precludes them from influencing the site where coercive treatment is administered and from having a medical professional they trust administer it. Impairments to physical integrity can result from the specific medical measures, or from a change of location for patients suffering from dementia or similar illnesses, an increased risk of contagion for specific infectious diseases in hospital, a sense of alienation from a patient’s familiar surroundings or the use of direct coercion to place a patient into hospital; all of these aspects can further increase the severity of interference.
bb) That said, the purposes pursued by the legislator are of great importance. It is especially significant that the legislator’s aim 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. The legislator’s interest in ruling out considerable impairments to physical integrity that could be avoided is also of great significance.
cc) In an overall assessment, the interference is inappropriate insofar as coercive medical treatment of persons under custodianship must in all cases be administered in an inpatient hospital setting, with affected persons likely facing serious impairments to physical integrity, and it is to be expected that these impairments can be avoided, or at least significantly reduced, when coercive medical treatment is administered in the facility where affected persons reside and this facility comes close to meeting hospital standards with regard to the specific medical treatment necessary, including any follow-up care. Based on the oral hearing, such treatment outside hospital could be considered in particular when coercive medical treatment is administered repeatedly and when specific indications of likely impairments to physical integrity were present in previous approval proceedings. That said, the impairments to physical integrity are only avoidable if affected persons do not face other impairments to their physical integrity or another comparable interest protected by fundamental rights when treatment is administered in the facility where they reside. When avoidable impairments result from coercive medical treatment administered in hospital, there is no overriding interest protected by constitutional law that could justify making affected persons, in a situation where they are most vulnerable, tolerate serious impairments to their physical integrity that could be avoided. Nor is it sufficiently ascertainable that there are no possible alternative or supplementary provisions that could be enacted to consistently ensure that coercive medical treatment is only administered as a last resort.
dd) No decision was made in the present proceedings on the question of whether, and under what conditions, the interference resulting from § 1906a(1) first sentence no. 7 of the Civil Code (old version) is also inappropriate with regard to injunctive proceedings, which have a lower standard of review than principal proceedings with regard to the requirement that coercive medical treatment must only be used as a measure of last resort.
II. § 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 in this respect. The partial 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. Until new legislation is adopted, but in any case no later than 31 December 2026, the current law remains applicable.
This decision was taken with 5:3 votes.
Dissenting opinion of Justice Wolff:
I cannot concur with the Senate majority’s view that the defensive right under Art. 2(2) first sentence, second alternative of the Basic Law requires the creation of a statutory basis for coercive treatment outside hospital.
1. I agree with the Senate majority to the extent that it finds that scenarios may arise in which the requirement that coercive medical treatment be administered in hospital in all cases (preceded by placement in a hospital) without exception puts such a strain on affected persons that the interference may be disproportionate in the individual case.
2. However, as a defensive right, Art. 2(2) first sentence, second alternative of the Basic Law only requires that disproportionate interference – in this case treatment in hospital – is not carried out. The defensive right of Art. 2(2) first sentence, second alternative of the Basic Law does not require that the legislator must create a statutory basis for an interference that avoids such disproportionality. If the interference is not carried out at all, it cannot be disproportionate. The provision under review therefore guarantees sufficient protection from disproportionate interference and is constitutional in this regard.
3. The only possible basis for a right to a statutory provision authorising coercive treatment outside hospital in those cases in which inpatient treatment results in a disproportionate burden is the duty of protection under Art. 2(2) first sentence, second alternative of the Basic Law. According to the established case-law of the Federal Constitutional Court, the duty of protection arising from the objective dimension of Art. 2(2) first sentence, second alternative of the Basic Law only confers a right to legislative action on the fundamental rights holder if no protective measures were taken at all, or if the adopted rules and measures prove to be manifestly unsuitable or inherently inadequate for achieving the required aim of protection, or if the measures in question fall significantly short of the aim of protection.
In enacting § 1906a of the Civil Code (old version), the legislator created a system of assistance and protection for persons under custodianship who either lack the capacity to understand the necessity of medical treatment to prevent or treat serious illness, or the capacity to act on such understanding. Given the legislator’s leeway in shaping the statutory framework, this is in principle sufficient.
I cannot find that the law as it stands is manifestly unsuitable or inherently inadequate and therefore violates the state’s duty of protection, given the uncertain facts regarding the negative impact of the interference, the potential success of the treatments in question, the negative impact of a patient’s placement in hospital, the negative impact of the alternative treatments at issue and the risks arising therefrom, and given that the experts do not agree on these issues. By contrast, I think that the introduction of additional forms of coercive medical treatment (no matter how narrowly drawn) creates the risk of lowering the substantive threshold for interference. In view of the uncertain factual situation, it is exclusively for the legislator to decide whether such a risk of lowering the standard of protection must be tolerated.
That no coercive medical treatment is permitted in these cases is ultimately based on respect for the natural will of affected persons, which is a reflection of their right to self-determination, protected by the right to the free development of their personality. In this scenario, too, coercive medical treatment amounts to an interference with this right.
Based thereon, the correct response to the referral from the Federal Court of Justice would be that the provision under review (§ 1906a(1) first sentence no. 7 of the Civil Code, old version) was constitutional.