Headnotes

to the Order of the Second Senate of 8 June 2021

- 2 BvR 1866/17 -

- 2 BvR 1314/18 -

1. Art. 2(2) first and second sentence of the Basic Law gives rise to duties of the state to protect confined persons; these duties of protection, however, are not capable of justifying coercive medical treatment if the confined person has ruled out such treatment in a legally effective advance healthcare directive while having the capacity for insight necessary to appreciate the implications of their actions.

2. Individual self-determination based on the general right of personality only takes precedence over the state’s duty of protection if the person concerned reached their decision of their own free will and in awareness of the implications. Their declaration to this effect must be examined in terms of whether it is sufficiently specific and whether the particular treatment situation is covered by the scope of the declaration.

3. This has no bearing on the state’s duty to protect the fundamental rights of other persons who come into contact with the confined person within the psychiatric facility. The patient’s exercise of personal autonomy can only concern their own rights. The rights of others are not at the patient’s disposal.

4. If the legislator creates a statutory basis for the coercive medical treatment of confined persons who pose a risk to others, it must strictly adhere to the principle of proportionality. Stringent substantive and procedural requirements must be in place to ensure that impairments of the affected freedoms are limited to what is absolutely necessary.

FEDERAL CONSTITUTIONAL COURT

- 2 BvR 1866/17 -- 2 BvR 1314/18 -

IN THE NAME OF THE PEOPLE

In the proceedings
on
the constitutional complaints

- 2 BvR 1866/17 -,

- 2 BvR 1314/18 -

the Federal Constitutional Court – Second Senate –

with the participation of Justices

Vice-President König,

Huber,

Hermanns,

Müller,

Kessal-Wulf,

Maidowski,

Langenfeld,

Wallrabenstein

held on 8 June 2021:

1. The proceedings are combined for joint decision.

2. The constitutional complaint is dismissed as inadmissible to the extent that it is directed against the Order of the Nuremberg-Fürth Regional Court of 7 June 2017 - 5 Ks 102 Js 1478/15 - and the Order of the Nuremberg Higher Regional Court of 26 July 2017 - 1 Ws 280/17 - on the lawfulness of the Regional Court’s decision.

3. a) The Order of the Nuremberg-Fürth Regional Court of 16 March 2017 - 5 Ks 102 Js 1478/15 - and the Order of the Nuremberg Higher Regional Court of 26 July 2017 - 1 Ws 280/17 -, insofar as the latter upholds as lawful the Order of the Nuremberg-Fürth Regional Court of 16 March 2017 - 5 Ks 102 Js 1478/15 -, violate the complainant’s fundamental rights under Article 2(2) first sentence and Article 2(1) in conjunction with Article 1(1) of the Basic Law (Grundgesetz ). The orders are reversed to this extent.

1. The Order of the Regensburg Regional Court – external criminal division responsible for execution of sentences established at the Straubing Local Court – of 28 March 2018 - SR StVK 904/17 - and the Order of the Nuremberg Higher Regional Court of 29 May 2018 - 2 Ws 321/18 - violate the complainant’s fundamental rights under Article 2(2) first sentence and Article 2(1) in conjunction with Article 1(1) of the Basic Law. They are reversed.

2. Both matters are remanded for a new decision to the Regensburg Regional Court – external criminal division responsible for execution of sentences established at the Straubing Local Court.

4. The Free State of Bavaria must reimburse the complainant one-half of his necessary expenses in both constitutional complaint proceedings.

R e a s o n s:

A.

[Excerpt from Press Release No. 66/2021 of 30 July 2021

On the basis of a court order, the complainant was placed in the secure psychiatric unit of a district hospital from October 2015 onwards. Although the placement was temporary at first, it became permanent after conclusion of the criminal proceedings. The complainant had already indicated – when completing a form in June 2005 – that he had drawn up an advance healthcare directive, the substance of which he reproduced in that document. In particular, he provided instructions with regard to life-prolonging measures and allogenic blood transfusions and appointed his mother as his authorised representative. On 4 January 2015, he again appointed his mother to act on his behalf as his authorised representative in all matters. In another document of 11 January 2015, the complainant forbade any doctor or caregiver (or anyone else) to administer antipsychotics to him in any form against his will or to pressurise him in that regard.

In September 2016, the district hospital applied for authorisation to administer coercive treatment to the complainant on the grounds that he was suffering from paranoid-hallucinatory schizophrenia. According to the hospital, the treatment was necessary to protect him from irreversible brain damage, which would be very likely to occur if there was any further delay in starting the treatment. The Regional Court (Landgericht ) responsible for the criminal proceedings granted authorisation to treat the complainant with an atypical antipsychotic drug on the basis of Art. 6(4) first sentence, Art. 6(3) and Art. 41 no. 3 of the Bavarian Act on the Psychiatric Confinement and Temporary Placement of Criminal Offenders in the version of 17 July 2015 (Gesetz über den Vollzug der Maßregeln der Besserung und Sicherung sowie der einstweiligen Unterbringung des Freistaates Bayern – BayMRVG). This decision became final and binding.

Upon renewed application by the district hospital, the Regional Court granted authorisation to continue the treatment until August 2017 in its challenged decisions of March 2017 and June 2017. The complaint filed in response was rejected as unfounded by the Higher Regional Court (Oberlandesgericht ) in its challenged decision of July 2017.

After the Regional Court responsible for execution in criminal matters granted a further extension of the complainant’s coercive drug treatment in December 2017, the Higher Regional Court reversed this decision and remanded the matter to the Regional Court for a new decision, stating that the Regional Court had violated the complainant’s right to be heard in a manner directly relevant to the decision by assuming that he did not have an advance healthcare directive. The Regional Court thereupon granted authorisation for another 12 weeks of daily medication injections in its challenged decision of March 2018, stating that the complainant’s declaration in his advance healthcare directive of 11 January 2015 prohibiting anyone from treating him with antipsychotics had indeed been taken into account but that it did not stand in the way of coercive medical treatment. The complaint on points of law (Rechtsbeschwerde ) was rejected as manifestly unfounded by the Higher Regional Court in its challenged decision of May 2018.

The complainant asserts a violation of his fundamental right to physical integrity (Art. 2(2) first sentence, second alternative of the Basic Law, Grundgesetz – GG) and his human dignity (Art. 1(1) GG). Indirectly, the constitutional complaints are directed against the provisions relating to coercive treatment in Art. 6(3) to (6) BayMRVG (former version).

End of excerpt ]

[…]

I.

[…]

II.

[…]

III.

[…]

B.

The constitutional complaints are admissible in part.

I.

[…]

II.

[…]

C.

To the extent that the constitutional complaints are admissible, they are well-founded. The challenged orders are based on Art. 6(4) sixth sentence and Art. 6(3) BayMRVG (former version) (in relation to the initial temporary placement in conjunction with Art. 41 no. 3 BayMRVG former version), which are constitutional. However, when interpreting and applying these provisions, the courts failed to recognise the significance and scope of Art. 2(2) first sentence GG.

I.

Coercive medical treatment interferes with the fundamental right to physical integrity under Article 2(2) first sentence GG (see 1. below). In principle, fundamental rights give rise to duties of protection in relation to the persons concerned themselves and in relation to other persons in the psychiatric facility, and these duties may be capable of justifying such an interference (see 2. a) below) if the principle of proportionality is observed (see 2. b) below). However, justification of coercive treatment cannot be based on duties of protection in relation to the persons concerned themselves if they have ruled out such treatment in a legally effective manner while having the capacity for insight (Einsichtsfähigkeit ) necessary to appreciate the implications of their actions (see 2. c) below).

1. Any medical treatment administered against a person’s natural will amounts to an interference with the fundamental right to physical integrity (Art. 2(2) first sentence GG). This fundamental right protects a person’s physical integrity and also their right to self-determination in this regard. It traditionally includes protection against coercive treatment by the state (cf. Decisions of the Federal Constitutional Court, Entscheidungen des Bundesverfassungsgerichts – BVerfGE 79, 174 <201>; 128, 282 <300>).

Even if the coercive measure is carried out for the purposes of curing a medical condition, it constitutes an interference. Measures can amount to interferences with the fundamental right to physical integrity regardless of whether they are aimed at causing harm (cf. BVerfGE 89, 120 <130>; 128, 282 <300>; 146, 294 <310 para. 27>). Even if the affected person does not put up any physical resistance (cf. BVerfGE 128, 282 <300>; 129, 269 <280>; 133, 112 <131 para. 50>; 146, 294 <310 para. 28>) and/or, due to illness, lacks the capacity for insight necessary to appreciate the implications of their actions (cf. BVerfGE 128, 282 <301 f.>), any treatment administered against their will amounts to an interference. The only scenario in which medical treatment of a confined person that affects the fundamental right to physical integrity might not be considered an interference is where the affected person gives voluntary and informed consent. Yet this requires that affected persons have the capacity to consent (cf. BVerfGE 128, 282 <301>).

The substantive guarantees of freedom and liberty in Art. 2(2) GG – including the right to physical integrity – carry special weight among the fundamental rights enshrined in the Constitution (cf. BVerfGE 65, 317 <322>; 128, 282 <302>). Subjecting a confined person to coercive medical treatment with antipsychotics amounts to an especially serious interference (cf. BVerfGE 128, 282 <302 f.>), which already follows from the effects of these drugs, not least given the possibility of serious, irreversible and life-threatening side effects that cannot be ruled out completely. In addition, psychotropic drugs are designed to alter psychological processes. Therefore, the administration of such drugs against the natural will of the person concerned especially affects the core of personality, regardless of whether physical coercion is used (cf. BVerfGE 128, 282 <303>).

2. Despite the particular severity of the resulting interference with fundamental rights, the coercive treatment of a confined person may nonetheless be justified (cf. BVerfGE 128, 282 <303 ff.>; 129, 269 <280 ff.>; 133, 112 <131 ff. para. 52 ff.>; 146, 294 <311 f. para. 29 ff.>).

a) That being said, the interest in protecting the general public from crime is not capable of justifying such coercive treatment (see aa) below). Justification can however be derived from the fundamental rights of other persons within the facility (see bb) below). Moreover, the interference may be justified on the basis of the confined person’s own right to physical integrity under Art. 2(2) first sentence GG (see cc) below) and on the basis of their liberty interest protected by Art. 2(2) second sentence GG (see dd) below) – which may give rise to a state duty of protection – if, due to illness, they lack the capacity for insight necessary to assert their own interests.

aa) The interest in protecting the general public from criminal acts that the confined person might commit, due to their illness, following their release from psychiatric confinement is not a suitable ground for justification. The same protection can also be achieved by keeping the person in psychiatric confinement without treatment. Therefore, this interest does not justify coercive treatment of a confined person since their refusal to receive treatment does not jeopardise the public’s protection from serious crime, but only harms the prospects of release of the confined person themselves (cf. BVerfGE 128, 282 <303 f.>).

bb) However, the continued confinement of a person in a secure psychiatric facility cannot protect those who come into contact with them inside this facility. The staff working in the psychiatric facility inevitably come into close contact with the person concerned in order to provide for them, ensure the necessary care and to offer measures necessary for that person’s therapy and social reintegration. Other patients confined in the psychiatric facility may also come into contact with the person concerned. The duty of protection arising from the fundamental rights of these other persons, in particular from their right to life and physical integrity, can provide grounds to justify coercive treatment. 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. Accordingly, the state is obliged to protect and defend the individual’s right to life (cf. BVerfGE 39, 1 <42>; 46, 160 <164>; 90, 145 <195>; 115, 320 <346>; 142, 313 <337 para. 69>), as well as their physical integrity and health, if individuals cannot defend these interests themselves.

It is for the legislator to establish and implement a concept of protection for persons living and working in psychiatric facilities. In this respect, the legislator generally has a margin of appreciation and assessment as well as leeway in terms of design (cf. BVerfGE 96, 56 <64>; 121, 317 <356>; 133, 59 <76 para. 45>; 142, 313 <337 para. 70>). If the legislator creates a statutory basis for the coercive medical treatment of confined persons who pose a risk to others, it must strictly adhere to the principle of proportionality (cf. BVerfGE 153, 182 <268 f. para. 223 ff.>). Stringent substantive and procedural requirements regarding coercive medical treatment must be in place to ensure that impairments of the affected freedoms are limited to what is absolutely necessary (see para. 70 below).

cc) The confined person’s own right to physical integrity may also give rise to a state duty of protection which is capable of justifying coercive treatment. It follows from Art. 2(2) first sentence GG that – where there is imminent risk of considerable health impairments – the state is obliged to provide protection, in the form of medical care, to vulnerable persons who lack the capacity for insight into the necessity of medical treatment or to act upon such insight; in cases of urgent need the state must provide this protection even against the natural will of the persons concerned (cf. BVerfGE 142, 313 <336 para. 67>). According to the Federal Constitutional Court’s case-law in respect of persons under custodianship who, due to mental illness or due to mental or psychological disability, lack the capacity for insight into the necessity of medical treatment, or the capacity to act upon such insight, the general duty of protection may consolidate, under certain narrow conditions, into a specific duty to take action. In serious cases, it must be possible for doctors, as a last resort, to examine and treat persons under custodianship, even if this entails having to override the opposing natural will of the persons concerned (cf. BVerfGE 142, 313 <341 para. 80>). This also applies to persons confined in a psychiatric facility as a ‘measure of reform and prevention’ (Maßregelvollzug ) under criminal law who, like the complainant, are not under custodianship, but who likewise do not have the capacity for insight, and thus cannot appreciate the necessity of receiving treatment for their mental illness.

dd) In respect of persons placed in psychiatric confinement as a measure of reform and prevention under criminal law and of persons placed in psychiatric confinement under public law, the interference may be justified on the basis of the confined person’s own liberty interest (Art. 2(2) second sentence GG) if they are not able to assert this interest because, due to illness, they lack the capacity for insight necessary to appreciate the implications of their actions (cf. BVerfGE 128, 282 <304 ff.>; 146, 294 <311 para. 30>). Measures of reform and prevention under criminal law and the resulting deprivation of liberty not only serve to protect the general public, but also serve to provide therapy to the patient, helping to improve their condition. Not having capacity for insight, due to illness, may prevent affected persons from exercising their fundamental rights as far as regaining their liberty, and thus securing their release, is concerned. Insofar as affected persons are vulnerable in that respect, the state may protect their liberty interest – subject to the principle of proportionality – by interfering with those fundamental rights to which affected persons, on account of their illness, attribute too much weight (cf. BVerfGE 128, 282 <306>).

b) In cases where justification for coercive medical treatment was based on the interest in protecting the health of the persons concerned and/or protecting their own liberty interest, the Federal Constitutional Court derived comprehensive and specific requirements from the fundamental rights guarantees (cf. BVerfGE 128, 282 <311, 313, 315>; 146, 294 <311 para. 31>) and from the principle of proportionality (cf. BVerfGE 128, 282 <308 ff., 313>; 146, 294 <311 para. 31>) that must be adhered to when confined persons are subjected to coercive treatment.

aa) Coercive treatment may only be used as a last resort where less intrusive measures are not (or no longer) an option and where treatment that interferes less severely with the fundamental rights of the person concerned would be futile (cf. BVerfGE 128, 282 <309>; 146, 294 <312 f. para. 34>). It must also be established that the person concerned, due to illness, lacks the capacity for insight or the capacity to act upon such insight (cf. BVerfGE 128, 282 <307 f.>; 129, 269 <281 f.>; 133, 112 <134 para. 59>; 146, 294 <311 para. 32>), and that serious attempts are made – taking the necessary time and without exerting undue pressure – to obtain the person’s agreement based on trust before the treatment is carried out (cf. BVerfGE 128, 282 <309 f.>; 129, 269 <283>; 133, 112 <139 para. 69>; 146, 294 <313 para. 34>). The principle of proportionality furthermore requires that the coercive treatment has sufficient prospects of success in terms of achieving the objective pursued and that the expected benefits clearly outweigh any harm that could potentially arise from not administering the treatment or any negative impacts associated with the measure (cf. BVerfGE 128, 282 <310 f.>; 146, 294 <312 f. para. 34>).

bb) Fundamental rights also give rise to procedural requirements. At least in cases of scheduled treatments, notice must be given in advance so that the affected person has time to seek legal protection (cf. BVerfGE 128, 282 <311>; 129, 269 <283>; 133, 112 <140 para. 70>; 146, 294 <311 para. 33>). In order to ensure adherence to the principle of proportionality, coercive treatment involving medication must be ordered and supervised by a doctor (cf. BVerfGE 128, 282 <313>; 129, 269 <283>; 133, 112 <138 para. 67>; 146, 294 <311 para. 33>). The advance effects (Vorwirkung ) of the fundamental rights guarantee of recourse to the courts 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 (cf. BVerfGE 128, 282 <313 f.>; 129, 269 <283>; 133, 112 <138 f. para. 68>; 146, 294 <311 para. 33>). Finally, special procedural safeguards follow from Art. 2(2) GG to protect against the particular risk to fundamental rights posed by situations where – unless there is an urgent emergency – the decision ordering coercive treatment is made solely by the institution where the person is confined. In this constellation, a decision to administer coercive treatment must be reviewed beforehand by a third party who is entirely independent of the institution where the person is confined (cf. BVerfGE 128, 282 <315 ff.>; 129, 269 <283>; 133, 112 <141 f. para. 71>; 146, 294 <311 para. 33>).

c) Even if the aforementioned requirements are met, duties of protection in relation to the persons concerned themselves are not capable of justifying coercive medical treatment if the person concerned has ruled out such treatment in a legally effective manner while having the necessary capacity for insight. If the person concerned has declared, having reached this decision autonomously and of their own free will, that they refuse medical treatment, this places narrow limits on the state’s duty of protection in cases where only the protection of that person’s fundamental rights is at stake (see aa) below). Given the far-reaching consequences, such a declaration must satisfy certain requirements to be considered autonomous and thus to be effective and binding (see bb) below). This has no bearing on the state’s duty of protection in relation to the fundamental rights of others (see cc) below).

aa) Coercive medical treatment aiming to improve the condition of the person concerned and eventually to secure their release is only permissible under constitutional law if they, due to illness, lack the capacity for insight necessary to appreciate their situation in a way that leads to their taking action (cf. BVerfGE 128, 282 <307>). If – prior to this and whilst capable of insight – the person concerned has considered this situation and made a legally effective declaration regarding the exercise of their fundamental rights, the state may not override this decision – at least not on the grounds of protecting the confined person’s own interests. Insofar as the person concerned is capable of reaching decisions about medical treatment to preserve or improve their own health on the basis of their free will, there is no need for protection and assistance. In this case, the state’s duty of protection vis-à-vis the person concerned following from Art. 2(2) first sentence GG must stand back (cf. BVerfGE 142, 313 <340 para. 75>). In principle, individuals are free to make decisions on interventions regarding their physical integrity and to deal with their health as they see fit.

This freedom is a manifestation of the individual’s personal autonomy, and as such is protected by the general right of personality under Art. 2(1) in conjunction with Art. 1(1) GG in its manifestation as patients’ right to self-determination (cf. BVerfGE 142, 313 <339 para. 74>; with the same outcome BVerfGE 128, 282 <302>; 129, 269 <280>; 133, 112 <131 para. 49>; with both aforementioned decisions referring to Art. 2(2) first sentence GG; regarding the right to a self-determined death cf. BVerfGE 153, 182 <259 f. para. 202 ff.>). As a non-listed freedom, the general right of personality protects aspects of one's personality that are not covered by the specific freedoms of the Basic Law, but are equal to these freedoms in terms of their constitutive significance for one’s personality (cf. BVerfGE 99, 185 <193>; 101, 361 <380>; 106, 28 <39>; 118, 168 <183>; 120, 274 <303>; 147, 1 <19 para. 38>; established case-law). With its connection to human dignity under Art. 1(1) GG, the general right of personality strengthens, and lends special weight to, the protection of physical integrity to include a ‘freedom to be ill’ (“Freiheit zur Krankheit ”). Respect for and protection of human dignity and freedom are fundamental principles of the constitutional order, informed by the central notion that human beings are capable of self-determination and personal responsibility (cf. BVerfGE 5, 85 <204>; 45, 187 <227>; 153, 182 <260 f. para. 206 f.>).

An individual is not required to follow a standard of objective reasonableness when deciding whether and to what extent to allow personal illness to be diagnosed and treated. The state’s duty to “protect individuals from themselves” does not establish a ‘sovereignty of reason’ (Vernunfthoheit ) of state organs over fundamental rights holders that would allow the state to set their will aside merely because their choice differs from average preferences or appears to be unreasonable from an outside perspective (cf. BVerfGE 128, 282 <308>; 142, 313 <339 para. 74>). The fundamental freedoms enshrined in the Basic Law encompass the right to exercise one’s freedoms in ways that might, in the eyes of third parties, appear to run counter to the best interests of the fundamental rights holder. It is generally for individuals to decide whether they wish to undergo therapeutic measures or other treatment, even if these serve to preserve or improve their health. This includes the ‘freedom to be ill’ and thus the right to refuse curative treatment even in cases where such treatment is urgently indicated, based on the current state of medical research, and where the failure to undergo such treatment may lead to a permanent loss of personal liberty within the meaning of Art. 2(2) second sentence GG (cf. BVerfGE 22, 180 <219>; 30, 47 <53>; 58, 208 <226>; 128, 282 <304>; 142, 313 <339 para. 74>).

To safeguard the effective exercise of the right to self-determination, narrow limits apply to the state’s duty of protection. Insofar as measures are solely aimed at protecting the affected person’s own rights, it is not sufficient to only consider their personal autonomy as an interest to be taken into account in the balancing of conflicting interests conducted by the state; where affected persons exercise their personal autonomy, they are not in need of protection and assistance, which means that there is no basis for establishing a duty of protection on the part of the state. Even if a person’s decision not to receive treatment for their illness will objectively result in serious health impairments or social isolation, the state may not replace the person’s autonomous decision with what it considers is “best” for them. This also applies if the refusal of medication means that a confined person will be left with seriously diminished prospects of release. In such cases, the state may not administer coercive medical treatment on the sole grounds that it wants to enable affected persons to live a life outside the psychiatric facility.

bb) Yet the exercise of individual self-determination based on the general right of personality only takes absolute precedence if the person concerned reached their decision of their own free will and in awareness of the implications. Whether the refusal of a specific treatment declared in an advance healthcare directive meets these requirements must be assessed in a two-staged review. The declaration needs to have been made when the person concerned had the capacity for insight into the implications of the declaration’s content. Someone has such capacity if they are able to appreciate the nature, significance and scope of the measure and, on this basis, are capable of making an informed decision of their own will ([…]). Firstly, it is incumbent upon the courts – if necessary with the help of experts – to establish whether a person refusing a specific treatment was capable of insight. However, where – as in the case at hand – a serious interference with a fundamental right that is accorded high standing is at issue, remaining uncertainties in the courts’ assessment of the facts may generally not be to the fundamental rights holder’s detriment.

Secondly, the courts must examine the content of the declaration in terms of whether it is sufficiently specific and whether the particular treatment situation is covered by the scope of the declaration. This examination can be conducted on the basis of the same criteria that are used to determine whether an advance healthcare directive is directly binding [in the context of a person under custodianship] under § 1901a(1) of the Civil Code (Bürgerliches Gesetzbuch – BGB). According to the case-law developed by the Federal Court of Justice (Bundesgerichtshof ), an advance declaration of a person under custodianship is only directly binding if it refers to the particular treatment situation that is at issue and if it specifies which medical measure the author consents to or forbids. It must be possible to determine on the basis of the declaration what medical measure is to be administered or refrained from in what specific treatment situation (cf. Decisions of the Federal Court of Justice in Civil Matters, Entscheidungen des Bundesgerichtshofes in Zivilsachen – BGHZ 214, 62 <68>). Overall, the standard for assessing the specificity required for a binding declaration must not be overly strict. It is sufficient if the person concerned specifies in a descriptive manner what they want and do not want in a certain life and treatment situation. It must also be assessed whether, with the situation it refers to, an advance healthcare directive also covers the potential outcome of not treating the person concerned, such as serious or even irreversible harm or chronic illness, as well as the consequences resulting therefrom, including for the person’s continued deprivation of liberty. An advance healthcare directive does not meet these standards if it only states abstract treatment choices that actually require further value judgments in the individual case, such as “dignified” or “appropriate” treatment; on the other hand, the person drawing up such an advance directive cannot be expected to have medical expertise or to anticipate their patient journey in the event of future medical conditions (cf. BGHZ 202, 226 <239>; 211, 67 <83>; 214, 62 <68>; Federal Court of Justice, Order of 14 November 2018 - XII ZB 107/18 -, juris, para. 20).

If these requirements for a binding declaration are met, the statement constitutes an expression of the author’s free will and precludes any coercive treatment whose justification is based solely on the need to protect the person concerned – this also applies to persons in psychiatric confinement. However, there needs to be an ongoing review of whether the specific circumstances and health situation continue to be covered by the advance healthcare directive.

cc) This has no bearing on the state’s duty of protection in relation to the fundamental rights of other persons who come into contact with the confined person within the psychiatric facility and who could therefore be at risk of being assaulted by that person due to their illness. This duty is not set aside by the confined person’s refusal to be treated, even if they have made their declaration while having capacity for insight and the declaration is sufficiently specific. The patient’s exercise of personal autonomy can only concern their own rights. The rights of others are not at the patient’s disposal. Where rights of others are concerned, a decision on coercive treatment must be made on the basis of a balancing of interests subject to the principle of proportionality, even if the patient has declared their refusal of a specific treatment in a legally effective manner.

II.

The challenged court decisions do not comply with these standards.

1. The treatment measures based on the Orders of the Regional Court of 16 March 2017 and 28 March 2018 constitute medical treatment administered to a confined person against their natural will, and thus amount to coercive medical treatment as defined in the case-law of the Federal Constitutional Court (cf. BVerfGE 128, 282 <300>). The orders allowing such treatment, which were upheld by the Higher Regional Court, interfere with the complainant’s fundamental right to physical integrity under Article 2(2) first sentence GG since these orders granted authorisation to treat the complainant with an atypical antipsychotic drug by intramuscular injection. The complainant submitted that all of these treatment measures were carried out against his current will as well as against the will he had declared in writing prior to his diagnosis; with regard to his current natural will, his submission is confirmed by the statements made by the Straubing district hospital’s management in the hospital’s request of 8 March 2017 to extend the treatment. In this request, the hospital stated that the complainant continued to refuse the treatment, but no longer put up any resistance to it.

2. These interferences with physical integrity are not justified. While the interferences have a statutory basis that is constitutional (see a) below), the ordinary courts did not take sufficient account of the significance and scope of Art. 2(2) first sentence GG when interpreting and applying these statutory provisions (see b) below).

a) The interferences are based on Art. 6(3) and (4) BayMRVG (former version), which was applied in conjunction with Art. 41 no. 3 BayMRVG (former version) in relation to the complainant’s temporary placement.

aa) The provisions are formally constitutional.

bb) In substantive terms, too, the provisions satisfy the requirements that the Basic Law places on the authorisation of coercive medical treatment. In keeping with the case-law developed by the Federal Constitutional Court, the provisions specify both the formal and the substantive requirements for coercive treatment (cf. in this regard BVerfGE 128, 282 <317>; 146, 294 <311 para. 31>).

(1) The provisions set out the conditions under which an interference is permissible in sufficiently clear and specific terms. In particular, the term “respecting” (Beachten ) advance healthcare directives that is used in Art. 6(4) sixth sentence BayMRVG (former version) satisfies the specificity requirements applicable to legal provisions, which are especially strict in this case in view of the severity of the fundamental rights interference in question (cf. BVerfGE 59, 104 <114>; 75, 329 <342>; 83, 130 <145>; 86, 288 <311>; 93, 213 <238>; 109, 133 <188>; 128, 282 <318>; 134, 33 <81>; 149, 293 <323 para. 77>). The provision does not lack the necessary specificity simply because it requires interpretation (cf. BVerfGE 45, 400 <420>; 117, 71 <111>; 128, 282 <317>; 149, 293 <324 para. 78>; established case-law). There are no objections to the use of indeterminate legal concepts (unbestimmte Rechtsbegriffe ) if there is a reliable basis for interpreting and applying the provision in question by using accepted methods of interpretation, in particular by reading the provision in question together with other provisions in the same law, through consideration of the statutory context or by drawing on established case-law (cf. BVerfGE 45, 363 <371 f.>; 86, 288 <311>; 149, 293 <324 para. 78>). As far as possible, the courts have to resolve remaining uncertainties regarding the scope of application of a provision by clarifying and specifying it in their interpretation (cf. BVerfGE 126, 170 <198>; 131, 268 <307>; 134, 33 <81 f. para. 112>; 149, 293 <324 para. 78>).

In the present case, Art. 6(4) sixth sentence BayMRVG (former version) satisfies these requirements. The term “respecting” requires further determination. Yet it is possible to specify its meaning by taking account of the legislative aim pursued, which is to strengthen the self-determination of persons confined in psychiatric hospitals (cf. Bavarian Landtag document, Bayerische Landtagsdrucksache – BY LTDrucks 17/4944, p. 23), and by considering the provision’s connection to § 1901a(1) BGB, which is apparent from its wording. Based thereon, the term “respecting” means that a declaration that fits the elements set out in the provision must be considered binding in relation to the patient’s rights. Art. 6(4) sixth sentence BayMRVG (former version) requires an “effective advance healthcare directive (or ‘living will’) within the meaning of § 1901a(1) BGB”. The Land legislator thus opted for making use of an existing legal mechanism that is binding under private law (cf. Bundestag document, Bundestagsdrucksache – BTDrucks 16/8442, p. 11 f.; BGHZ 214, 62 <67>). Regarding the conditions under which an advance healthcare directive is considered effective, the explanatory memorandum to Art. 6 BayMRVG (former version) (cf. BY LTDrucks 17/4944, S. 33) expressly refers to the requirement, derived from the civil courts’ case-law, that it must be possible to determine, on the basis of the declaration, the patient’s will in relation to the question of what medical treatment is to be administered or refrained from in what specific treatment situation. The legislator wanted to ensure that written declarations made by adults whilst they had the capacity to consent “have effect” (“zum Tragen kommen ”) in cases where mental illnesses are examined and treated in psychiatric confinement and the confined person is no longer capable of giving consent at that point (cf. BY LTDrucks 17/4944, p. 33).

(2) Furthermore, Art. 6(3) no. 1 BayMRVG (former version) satisfies the constitutional requirement that coercive treatment be made conditional upon the person concerned, due to illness, lacking capacity for insight or capacity to act upon such insight. Art. 6 BayMRVG (former version), with its section (3) no. 2(a) and (b) and section (6), also exhaustively lists the purposes capable of justifying an interference. Art. 6(3) no. 3(a) BayMRVG (former version) furthermore provides that coercive drug treatment for the purpose of protecting the affected person’s own rights (Art. 6(3) no. 2) is only permissible if serious attempts have been made – taking the necessary time and without exerting undue pressure – to obtain the person’s agreement based on trust. Pursuant to Art. 6(3) no. 3(b) and (c) BayMRVG (former version), a doctor must inform the confined person about the type, duration, prospects of success and risks of the intended treatment. Moreover, timely notice of the treatment, at least 48 hours in advance, must be given, including information about possibilities to obtain legal protection. Art. 6(3) no. 3(d) BayMRVG (former version) provides that coercive medical treatment may only be administered if it has sufficient prospects of success in terms of achieving the objective on which justification of the measures is based. Pursuant to Art. 6(3) no. 3(e) BayMRVG (former version), such treatment may only be ordered if less intrusive means do not have sufficient prospects of success. Moreover, Art. 6(3) no. 3(f) and (h) BayMRVG (former version) provide that the expected benefits must clearly outweigh any harm that could potentially arise from not administering the treatment or any negative impacts associated with the treatment, and that the treatment must not entail a considerable risk to the health or life of the confined person; this statutory design satisfies the principle of proportionality. Pursuant to Art. 6(3) no. 3(g) BayMRVG (former version), the type and duration of the treatment must be limited to what is absolutely necessary. Art. 6(4) BayMRVG (former version) provides that coercive treatment must be ordered by the competent criminal division responsible for execution of sentences (Strafvollstreckungskammer ), and that the period of treatment authorised by any such order may not exceed twelve weeks. The treatment must be administered by a doctor, who must monitor and assess it as to its suitability, necessity and appropriateness at regular intervals. Moreover, Art. 32(1) first sentence BayMRVG (former version) provides that essential decisions and orders concerning the patient, including coercive treatment, are to be noted in their medical records, and that the reasons must be documented (cf. BY LTDrucks 17/4944, p. 54).

b) In light of the standards set out above, the challenged court decisions do not satisfy constitutional requirements. When interpreting and applying Art. 6(3) and Art. 6(4) sixth sentence BayMRVG (former version) (in relation to temporary placement in conjunction with Art. 41 no. 3 BayMRVG former version), the ordinary courts failed to recognise the significance and scope of the fundamental right to physical integrity under Art. 2(2) first sentence GG.

When interpreting the element of “respecting” in Art. 6(4) sixth sentence BayMRVG (former version), the Nuremberg-Fürth Regional Court (Landgericht ) and the Regensburg Regional Court – external criminal division responsible for execution of sentences (Strafvollstreckungskammer ) established at the Straubing Local Court (Amtsgericht ) – did not sufficiently take into account the constitutional standards for reviewing the permissibility of coercive medical treatment that derive from Art. 2(2) first sentence GG. Both courts relied on the state’s duty of protection in relation to the complainant’s fundamental rights interests without taking into account that where the sole purpose of coercive treatment is to protect the complainant, his right to self-determination prohibits coercive treatment from the outset if there is a legally effective advance healthcare directive within the meaning of § 1901a BGB that opposes such treatment.

The courts did consider the complainant’s declaration of 11 January 2015 to be an effective advance healthcare directive within the meaning of § 1901a BGB. However, they failed to subject the declaration to a two-staged review in order to establish, prior to the treatment, whether the complainant had been capable of insight when he made the declaration and whether the specific treatment situation in the psychiatric facility was covered by the scope of the declaration. The Nuremberg-Fürth Regional Court did conclude that the declaration had been made whilst the complainant was capable of insight given that there were no reliable indications that he was already suffering from a psychosis in January 2015. The Regensburg Regional Court made reference to this assessment in its own decision. However, both courts failed to examine the substantive scope of the advance healthcare directive specifically in respect of treatment in psychiatric confinement – an approach that is consistent with the courts’ constitutionally flawed reasoning. Moreover, when it comes to assessing the complainant’s capacity, the factors that must be taken into account include not only the time when the declaration was made and its proximity to the criminal act which led to his psychiatric confinement but also prior declarations made by the complainant, the progression of his illness and the specific circumstances that led to him making the declaration.

While acknowledging that the complainant’s declaration of 11 January 2015 was a legally effective advance healthcare directive within the meaning of § 1901a BGB, the courts accorded less weight to the declaration than to the state’s duty of protection in relation to the complainant’s health and in particular in relation to securing his eventual release; in this respect, the courts failed to consider the extent to which the complainant’s right to self-determination as a patient imposed limits on the duty of protection. The courts thus failed to recognise the significance and scope of Art. 2(2) first sentence GG in its manifestation as a defensive right against state interference. Art. 2(2) first sentence GG requires strict adherence to a patient’s decision insofar as – like in the present case – justification for coercive medical treatment is only derived from the need to protect the patient’s own rights. In accordance with the request submitted by the psychiatric facility, the courts did not base their orders authorising treatment on the need to protect the rights of others who might be exposed to physical attacks by the complainant in the psychiatric facility and whose protection could justify an interference with the complainant’s fundamental rights following from Art. 2(2) first sentence and Art. 2(1) in conjunction with Art. 1(1) GG. It was thus not for the Federal Constitutional Court to review whether coercive treatment could have been justified in this case on the grounds of protecting other persons in accordance with Art. 6(6) BayMRVG (former version).

bb) The Higher Regional Court (Oberlandesgericht ) upheld the Orders of the Regional Court, which had been admissibly challenged by the complainant. In its Order of 26 July 2017, it completely relied on the reasons attached to the Orders of the Nuremberg-Fürth Regional Court of 16 March 2017 and 7 June 2017. In its Order of 29 May 2018, it held that the interpretation given by the Regensburg Regional Court – external criminal division responsible for execution of sentences established at the Straubing Local Court – was correct. The Higher Regional Court thus failed to recognise the significance and scope of Art. 2(2) first sentence and Art. 2(1) in conjunction with Art. 1(1) GG when interpreting and applying Art. 6(4) sixth sentence BayMRVG (former version).

D.

Pursuant to § 95(1) first sentence of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz – BVerfGG), it is declared that the Orders of the Nuremberg-Fürth Regional Court of 16 March 2017 and of the Nuremberg Higher Regional Court of 26 July 2017 on the lawfulness of the Regional Court’s decision as well as the Orders of the Regensburg Regional Court – external criminal division responsible for execution of sentences established at the Straubing Local Court – of 18 March 2018 and of the Nuremberg Higher Regional Court of 29 May 2018 violate the complainant’s fundamental rights under Article 2(2) first sentence and Art. 2(1) in conjunction with Art. 1(1) GG. To this extent, the above-mentioned orders are reversed pursuant to § 95(2) BVerfGG. The matters are remanded for a new decision to the Regensburg Regional Court – external criminal division responsible for execution of sentences established at the Straubing Local Court –, which is now the sole competent court.

The matter can be remanded even though the challenged orders have become moot because of the time elapsed. Given that serious interferences with fundamental rights are at issue (cf. BVerfGE 128, 282 <303>), the complainant continues to have a recognised legal interest in determining whether ordering and administering the coercive medical treatment was unlawful or lawful (cf. BVerfGE 146, 294 <308 ff. para. 24>; generally in respect of recognised legal interest despite the matter having become moot: cf. BVerfGE 33, 247 <257 f.>; 69, 161 <167 f.>; 81, 138 <140 f.>; 139, 245 <263 f. para. 53>).

E.

[…]

F.

The decision was taken with 7:1 votes.