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Another successful constitutional complaint lodged by a person committed to a psychiatric hospital as a measure of correction and prevention against compulsory medical treatment – legislation in Baden-Württemberg held unconstitutional as well

Press Release No. 63/2011 of 20 October 2011

Order of 12 October 2011
2 BvR 633/11

The complainant has been confined in a psychiatric hospital as a measure of correction and prevention since the year 2005. In June 2009, the hospital to which the complainant was committed informed him that he would be treated with an antipsychotic, and that if necessary the treatment would even be carried out against his will by an injection performed after immobilising him. The legal remedies lodged against that were unsuccessful.

By means of his constitutional complaint, the complainant asserts among other things that it is impermissible to compulsorily administer drugs to him if - undisputedly - his condition is not a case of psychosis but merely of a personality disorder. He further asserts that a clear-cut psychiatric indication has not been established, and that he suffers from considerable side-effects of the medication.

§ 8.2 sentence 2 of the Act on the Committal of Mentally Ill Persons (Gesetz über die Unterbringung psychisch Kranker) of the Land (state of) Baden-Württemberg (Committal Act, Unterbringungsgesetz - UBG BW), which is the legal basis in the case at hand, provides that the person committed to an institution has to tolerate the measures of examination and treatment which are required according to the rules of the medical profession to examine and to treat the disease to the extent that the examination and treatment does not fall under subsection 3. § 8 .3 UBG BW provides that the patient's consent is (only) required for surgery and for operations that involve a considerable danger to the patient's life or health.

The Second Senate of the Federal Constitutional Court decided that § 8.2 sentence 2 UBG BW is incompatible with the fundamental right to physical integrity under Article 2.2 sentence 1 of the Basic Law (Grundgesetz - GG) in conjunction with the fundamental right to effective legal protection under Article 19.4 GG and that it is hence void. The rulings of the Regional Court (Landgericht) and of the Higher Regional Court (Oberlandesgericht) which were challenged by the constitutional complaint were annulled. They already violate the complainant's fundamental right to physical integrity because no constitutional legal basis exists for the compulsory treatment whose lawfulness they had confirmed.

In essence, the decision is based on the following considerations:

In its order of 23 March 2011, the Federal Constitutional Court clarified the constitutional prerequisites of the permissibility of the compulsory medical treatment of a person committed to a psychiatric hospital as a measure of correction and prevention aimed at achieving the objective of the measure (see Federal Constitutional Court, order of the Second Senate of 23 March 2011 - 2 BvR 882/09 -, Europäische Grundrechte-Zeitschrift - EuGRZ 2011, pp. 321 et seq., and press release no. 28/2011 of 15 April 2011).

Even in conjunction with other provisions of the Baden-Württemberg Committal Act, the authorisation for the encroachment granted under § 8.2 sentence 2 UBG BW, does not satisfy the standards which the order puts in concrete terms. In particular, according to the provision, compulsory medical treatment of a person committed to a psychiatric hospital as a measure of correction and prevention which is aimed at achieving the objective of the measure is not restricted to cases of illness-induced lack of capacity to understand, which is constitutionally required. § 8.2 sentence 2 UBG BW also does not comply with a number of other requirements derived from the principle of proportionality which a law that grants the authorisation to perform the compulsory medical treatment of a person committed to a psychiatric hospital must satisfy.