Headnotes

to the Order of the Second Senate of 23 March 2011

2 BvR 882/09

1. Medical treatment of persons in psychiatric confinement against their natural will constitutes a serious interference with the fundamental right under Article 2(2) of the Basic Law; this interference may be justified if it aims to achieve the confinement’s objective.

2. Coercive medical treatment administered to achieve the confinement’s objective is only permissible if, due to illness, the confined person lacks the mental capacity for insight into the necessity of medical treatment or for acting upon this insight. Coercive medical treatment may only be used as a last resort, and only if the prospects of success in respect of the objective of the treatment justifying the measures are good and if it does not burden affected persons disproportionately to the benefit that can reasonably be expected. In order to protect the fundamental rights of confined persons, specific procedural safeguards are necessary.

3. A clear and specific statutory framework must set out the essential requirements, including procedural requirements, under which coercive medical treatment is permissible.

FEDERAL CONSTITUTIONAL COURT

- 2 BvR 882/09 -

IN THE NAME OF THE PEOPLE

In the proceedings
on the constitutional complaint of

the Federal Constitutional Court – Second Senate –

with the participation of Justices

President Voßkuhle,

Di Fabio,

Mellinghoff,

Lübbe-Wolff,

Gerhardt,

Landau,

Huber,

Hermanns

held on 23 March 2011:

1. § 6(1) second sentence of the Rhineland-Palatinate Act on Psychiatric Confinement of Criminal Offenders of 23 September 1986 (GVBl RLP p. 223), last amended by the Act of 22 December 2004 (GVBl RLP p. 571), is incompatible with Article 2(2) first sentence in conjunction with Article 19(4) of the Basic Law, and void.

2. The Orders of the Landau Regional Court of 16 October 2008 - 2 StVK 255/06 - and of the Palatinate Higher Regional Court of 18 March 2009 - 1 Ws 365/08 (Vollz) - violate the complainant’s fundamental right under Article 2(2) first sentence of the Basic Law. The Orders are reversed. The matter is remanded to the Landau Regional Court.

3. […]

REASONS:

A.

I.

The constitutional complaint concerns coercive medical treatment of a person confined in a psychiatric hospital on the basis of § 6(1) second sentence, first half-sentence of the Rhineland-Palatinate Act on Psychiatric Confinement of Criminal Offenders.

[…]

II.

1. The complainant is confined in the Klingenmünster Hospital following the Judgment of the Frankenthal Regional Court of 16 December 1999. As a result of a delusional disorder exempting him from criminal responsibility, he had beaten his sleeping wife with a wine bottle and attempted to suffocate her. Subsequently, with another wine bottle, he had beaten his daughter, who was lying in bed.

From the end of December 1999 to the end of February 2000, the complainant was treated with an atypical neuroleptic drug. The complainant refused further treatment due to side effects. In 2005, in the context of the annual review of continued confinement, Prof. Dr. N., an external expert, stated that the paranoid psychosis which had triggered the act for which he was confined persisted. According to the expert, the only way to improve the complainant’s mental health was to treat him with neuroleptic agents. […]

2. In the letter dated 28 September 2006 challenged by the complainant, the hospital notified the complainant of treatment “with a suitable neuroleptic drug administered by intramuscular injection – if necessary against your will”. [...]

3. a) The complainant lodged a “complaint” and requested external medical evaluation by a specialist. He stated that the planned treatment was associated with significant health risks and therefore not permitted against his will. These risks included the possibility of blood count changes and impaired liver function, as pointed out by the hospital itself. He claimed that the drugs also had personality-changing effects. […]

b) […]

c) By its challenged Order of 16 October 2008, the Regional Court [...] dismissed the application and ruled that coercive drug treatment with atypical neuroleptic agents was permissible for a period of six months. [...]

[…]

4. a) […]

b) By its challenged Order of 18 March 2009, the Higher Regional Court dismissed the complaint on points of law as unfounded. […]

III.

In his constitutional complaint, challenging the orders of the Regional Court and the Higher Regional Court as well as the notification letter of the hospital, the complainant asserts a violation of his rights under Art. 2(2) and Art. 1(1) of the Basic Law, Art. 3 of the European Convention on Human Rights as well as of his right to a fair trial. [...]

[…]

IV.

Statements on the constitutional complaint were submitted by the Federal Government, the Land Government and the Land Parliament of Rhineland-Palatinate, the Federal Court of Justice, the German Association for Psychiatry, Psychotherapy and Psychosomatics (Deutsche Gesellschaft für Psychiatrie, Psychotherapie und Nervenheilkunde ) as well as by the Federal Association of Users and Survivors of Psychiatry (Bundesverband Psychiatrie-Erfahrener ). […]

[…]

B.

The constitutional complaint is admissible to the extent that the complainant challenges the orders of the Regional Court and the Higher Regional Court. […]

To the extent that the constitutional complaint is admissible, it is well-founded. The orders of the Regional Court and the Higher Regional Court, which confirm the lawfulness of the announced coercive treatment, violate the complainant’s fundamental right under Art. 2(2) first sentence of the Basic Law. […]

[…]

I.

1. The medical treatment of confined persons against their natural will interferes with the fundamental right to physical integrity (Art. 2(2) first sentence of the Basic Law). This fundamental right protects the physical integrity of holders of fundamental rights and thus also their right to self-determination related to it. Traditionally, this includes protection against coercive treatment by the state (cf. BVerfGE 79, 174 <201>).

2. Coercive treatment amounts to an interference, including where it is carried out for curative purposes. […]

Even if the affected person does not put up any physical resistance, any treatment administered against their will amounts to an interference. Merely desisting from a certain type of protest cannot be interpreted as consent. The only scenario in which medical treatment of a confined person that affects the fundamental right to physical integrity might not be an interference is where the affected person gives voluntary and informed consent. That requires that the confined person be capable of giving consent (cf. BGHZ 29, 46 <51>; 154, 205 <210>) and that they not be subjected to undue pressure, such as threats of disadvantages, in case of refusal of treatment that are not simply necessary consequences of the person’s condition that are to be expected if the person is left untreated or if treatment is refused.

A confined person’s lack of mental capacity on grounds of illness does not render treatment against their natural will and affecting their physical integrity any less of an interference with the scope of protection of Art. 2(2) first sentence of the Basic Law. Affected persons may even, because of their lack of mental capacity, perceive the interference as particularly threatening, which increases its weight (see 3 below). Lack of mental capacity does not, from the outset, rule out that protection is afforded by Art. 2(2) of the Basic Law [...]. Even with the consent of a custodian appointed for a confined person who lacks mental capacity and is unable to consent, the measure still amounts to an interference given that it is carried out against the natural will of the affected person […].

3. Coercive medical treatment of a confined person with neuroleptic agents constitutes a particularly serious interference with fundamental rights.

The substantive guarantees of freedom and liberty in Art. 2(2) of the Basic Law – including the right to physical integrity – carry special weight among the fundamental rights enshrined in the Constitution (cf. BVerfGE 65, 317 <322>). Coercive medical treatment of confined persons, especially surgery and coercive drug treatment, constitutes a particularly serious type of interference with the right to physical integrity [...]. Affected persons are coerced into tolerating a measure that fits the classification of bodily harm [...] and is generally only permissible with the consent of the affected person justifying such a measure under criminal law. The interference that is coercive medical treatment not only affects physical integrity as such, it also, in a particularly severe way, affects the related right to self-determination, which is protected under Art. 2(2) first sentence of the Basic Law. A deliberate interference with physical integrity carried out by others will be perceived as all the more threatening the more the affected person feels helpless and at the mercy of others. In addition, treatment in psychiatric confinement often affects persons who, due to their psychological condition, will have particularly sensitive reactions both to the horror of the coercive invasion of their physical integrity and to their will being disregarded, as well as to the fear of these intrusions. When assessing the severity of the interference, subjective feelings are relevant, too (cf. BVerfGE 89, 315 <324>). Finally, administering neuroleptic drugs to patients against their natural will constitutes […] a particularly serious interference with fundamental rights also with regard to the effects of these drugs, not least given the possibility of serious, irreversible and life-threatening side effects, which cannot be ruled out [...]. In addition, psychotropic drugs are intended to change mental processes. Therefore, their administration against the natural will of the affected person, regardless of physical coercion, especially affects the core of personality.

II.

1. Despite the weight of this interference, the legislator is not generally precluded from allowing coercive treatment of a confined person. This also applies to treatment that serves to achieve the confinement’s objective (§ 136 of the Prison Act, § 1(2) of the Rhineland-Palatinate Act on Psychiatric Confinement of Criminal Offenders), i.e. that aims to prepare the confined person for release.

a) However, the necessary protection of third parties from offences that confined persons might commit after their release cannot be considered a justification in this regard. Such protection can also be achieved by keeping confined persons in a psychiatric hospital without providing treatment. […]

b) The interference may be justified, however, on the basis of the confined person’s own liberty interest (Art. 2(2) second sentence of the Basic Law) if they are not able to exercise this interest as a result of their lack of mental capacity due to illness.

aa) The fundamental freedoms [enshrined in the Basic Law] encompass the right to exercise the liberties and freedoms in a way that is – at least in the eyes of third parties – contrary to the seemingly best interests of the fundamental rights holder. Therefore, it is generally for individuals to decide whether they wish to undergo therapeutic measures or other treatment that solely serve to ‘better’ them (cf. BVerfGE 22, 180 <219 and 220>). This constitutionally protected freedom also encompasses the ‘freedom to be ill’, and thus the right to refuse curative treatment, even if it is urgently indicated according to current medical findings (cf. BVerfGE 58, 208 <226>; 30, 47 <53>; 22, 180 <219>).

bb) When balancing the restricted fundamental right against those fundamental rights interests which the interference with that right seeks to protect, the weight of the restricted fundamental right cannot be considered completely independently of the actual ability of its holder to reach a decision informed by their free will (cf. BVerfGE 58, 208 <225>). Therefore, the legislator is entitled to allow treatment measures against the natural will of the holders of fundamental rights as an exception and subject to strict conditions if, due to illness, they lack the mental capacity for insight into the severity of their illness and the necessity of treatment measures, or for acting upon such insight. The Federal Constitutional Court has held that, subject to these conditions, the serious interference with fundamental rights that is deprivation of liberty may be justified to protect the affected persons themselves; it accepted the possibility of confinement for treatment purposes as provided for by Land confinement law in respect of such cases (cf. BVerfGE 58, 208 <224 et seq .> […]).

Nothing fundamentally different applies with regard to the interference that is medical treatment of confined persons against their natural will. [...]

If a confined person, due to illness, lacks the mental capacity for insight into the illness that makes their confinement necessary, or if they cannot appreciate or act upon the fact that the only chance of a cure lies in treatment, the state is not obliged, on grounds of some principle of the primacy of an illness-induced expression of will, to abandon them to a life of permanent confinement. An interference aiming to restore the factual preconditions for the free self-determination of the confined person may be permissible under these circumstances [...]. The lack of mental capacity, due to illness, precludes affected persons from exercising their fundamental rights as far as regaining their liberty is concerned. As the affected persons are vulnerable in that respect (cf. BVerfGE 58, 208 <225>), the state may – in consideration of the principle of proportionality – interfere with those fundamental rights to which the affected persons, only on account of illness, attribute too much weight.

cc) The UN Convention on the Rights of Persons with Disabilities (CRPD), which has the force of law in Germany [...] and serves as an interpretive guideline for determining the content and scope of fundamental rights (cf. BVerfGE 111, 307 <317 and 318>), does not suggest a different conclusion [...].

Persons with disabilities to whom the guarantees of the Convention apply include persons with mental illness if they have a long-term impairment that may hinder their full, effective and equal participation in society (Art. 1(2) CRPD [...]). The Convention, and in particular its Art. 12(2) and Art. 12(4), aims to protect and strengthen the autonomy of persons with disabilities. In Art. 12(2) CRPD, States Parties recognise that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life. Art. 12(4) CRPD obliges States Parties to respect the rights, will and preferences of the persons concerned when taking measures relating to the exercise of legal capacity. Yet these provisions do not generally prohibit measures relating to a limited capacity for self-determination due to illness to be carried out against the natural will of affected persons. This clearly follows, inter alia , from the regulatory context of Art. 12(4) CRPD, which expressly relates to measures restricting the legal capacity of affected persons. The Convention does not prohibit such measures in general; rather, it limits their permissibility, including by obliging States Parties to the Convention under Art. 12(4) CRPD to provide for appropriate safeguards against conflicts of interest, abuse and disregard, and to ensure proportionality.

2. Coercive medical treatment aiming to secure the eventual release of the affected person is only permissible under constitutional law if they, due to illness, lack mental capacity to appreciate their situation in a way that leads to their taking action (lack of mental capacity due to illness) [...].

While it must be acknowledged that these conditions constitute exceptional authorisation for the state to “protect individuals from themselves” (cf. BVerfGE 58, 208 <224> […]), this does not establish the ‘sovereignty of reason’ (Vernunfthoheit ) of state organs over fundamental rights holders in such a way that their will is set aside merely because it differs from average preferences or appears to be unreasonable from an outside perspective [...]. The lack of capacity for free self-determination, which would justify an interference, cannot be inferred from the mere fact that the affected person refuses medical treatment that is necessary from a medical point of view and has risks and side effects that, according to prevailing opinion, are tolerable with respect to the benefits that can reasonably be expected. Rather, a lack of mental capacity for insight due to illness or for acting upon such insight is necessary (cf. BVerfGE 58, 208 <225>).

3. Further requirements, in addition to the necessary lack of mental capacity due to illness, result from the principle of proportionality. In light of the particular severity of the interference, coercive medical treatment aiming to achieve the confinement’s objective is only permissible under strict conditions.

a) aa) In substantive terms, it follows from the principle of proportionality that measures of coercive treatment may only be applied if their prospects of success are good in regard to the objective of the treatment justifying the measures [...]. This also limits the permissible duration of their use. [...]

bb) Furthermore, coercive measures may only be taken as a last resort, where less intrusive measures are unlikely to be successful […]. In relation to coercive drug treatment administered to achieve the confinement’s objective, this means, firstly, that less intrusive treatment must be futile. Secondly, to the extent that the affected persons are able to communicate, coercive treatment must be preceded by serious attempts, taking the necessary time and without impermissible pressure, to obtain their agreement based on trust (see B I 2 above) […]. This applies independently of whether confined persons have mental capacity, including the capacity to consent, since coercive treatment constitutes an interference regardless of mental capacity or capacity to consent (see B I 2 above).

Even if a person lacks capacity to consent, appropriate disclosure by a physician of information on the intended measure cannot be dispensed with from the outset. It is true that informing a person who lacks capacity to consent cannot serve as a basis for the consent justifying the measure [...]. Regardless of whether effective informed consent can be obtained by providing information on the intended measure, even persons lacking capacity to consent may not be left wondering whether and how they will be subjected to treatment [...]. Informing the affected persons about the intended treatment and its effects in accordance with their cognitive abilities is therefore still required (cf. also UN Principles for the Protection of Persons with Mental Illness, Principle 11(9)).

The principle that an interference may not exceed the limits of what is necessary must also guide the decision on which specific measures to take [...].

cc) Beyond the requirements of suitability and necessity, for the coercive medical treatment to be justified, it must also not entail burdens on the affected persons that are disproportionate to the benefits that can reasonably be expected. [...] This requirement will generally not be met in cases of coercive treatment administered to achieve the confinement’s objective if the treatment is associated with a more than insignificant residual risk of irreversible damage to health [...].

b) The fundamental rights give rise to procedural requirements for authorities and courts (cf. BVerfGE 52, 380 <389 and 390>; 101, 106 <122>; 124, 43 <70>; established case-law). Persons confined in closed facilities are particularly dependent on such safeguards.

aa) Certainly in respect of scheduled treatments, and thus also of treatments administered to achieve the confinement’s objective, notice must be given to affected persons where a measure is to be performed even though the necessary efforts to obtain consent (see B II 3 a bb above) have failed, so that the affected person has time to seek legal protection. [...]

[…]

bb) In order to ensure proportionality, it is indispensable that coercive drug treatment be ordered and supervised by a physician. [...]

cc) The advance effects (Vorwirkung ) of the fundamental rights guarantee of recourse to the courts (see B II 3 b aa above) make it necessary to document treatment measures administered against the will of the confined persons, including their coerciveness, how they were administered, the relevant reasons therefor as well as the monitoring of their effects [...].

dd) Furthermore, specific procedural safeguards follow from Art. 2(2) of the Basic Law to protect against the particular risk to fundamental rights posed by the situation where the decision ordering coercive treatment is made solely by the institution where the person is confined […] (cf. BVerfGE 52, 391 <407 and 408>; 53, 30 <60 et seq .>; 113, 29 <57 and 58>; 124, 43 <70>; established case-law). […]

[…]

The above considerations give rise not only to specific constitutional requirements for potential court proceedings. [...] It must also be ensured that, prior to coercive treatment, a review is carried out that is entirely independent of the institution where the person is confined. [...]

[...]

4. a) Like any other interference with fundamental rights, coercive treatment of a confined person is only permissible on the basis of a statutory provision that sets out the permissibility requirements for the interference. This applies to both requirements for justifying the interference and procedural requirements. The essential questions regarding how to give effect to fundamental rights must be addressed through the enactment of legal provisions on procedural matters, just as with substantive matters (cf. BVerfGE 57, 295 <320 and 321>; 73, 280 <294, 296>; 82, 209 <224 and 225, 227>; 120, 378 <429>).

The requirements subject to which an interference is permissible must be set out in a sufficiently clear and specific manner [...].

III.

According to these standards, § 6(1) second sentence, first half-sentence of the Rhineland-Palatinate Act on Psychiatric Confinement of Criminal Offenders does not constitute a sufficient statutory basis for coercive treatment. The requirements of legal clarity and specificity, which are applicable in the context of a particularly serious interference with fundamental rights, are not satisfied by this provision (see B I 3 above). [...]

1. […]

a) Thus, in particular, there is no statutory provision setting out that lack of mental capacity due to illness is an indispensable prerequisite that must apply in cases of coercive treatment administered to achieve the confinement’s objective (see B II 2 above). […] § 6(5) first sentence of the Rhineland-Palatinate Act on Psychiatric Confinement of Criminal Offenders, which lays down that that measures must be reasonable (zumutbar ) with respect to the confined patient and may not be disproportionate to the success that can be expected, does not sufficiently specify the substantive permissibility requirements for the interference.

To the extent that the Act contains a provision specifying the efforts, required by the principle of proportionality, to obtain the consent of the affected person, it is [...] insufficient because it only requires such efforts if the affected person has comprehensive capacity of insight […] (see B II 3 a bb above).

b) In addition, there is no legal provision setting out further essential procedural prerequisites for interference necessary for protecting fundamental rights. [...] Furthermore, requirements relating to the documentation of treatment are lacking (see B II 3 b cc above), as are [...] the necessary procedural safeguards to ensure that, prior to coercive treatment [...], a review that is entirely independent of the institution is carried out (see B II 3 b cc above). […]

2. The shortcomings of the provision cannot be remedied by interpreting it in conformity with the Constitution. The constitutional shortcomings can only be resolved by the legislator.

C.

The violations of constitutional law found here concern § 6(1) second sentence of the Rhineland-Palatinate Act on Psychiatric Confinement of Criminal Offenders in its entirety [...]. Therefore, the entire § 6(1) second sentence of the Act must be declared void.

[…]