Partially successful constitutional complaints against the coercive medical treatment administered, contrary to an advance healthcare directive, to a person in psychiatric confinement

Press Release No. 66/2021 of 30 July 2021

Order of 8 June 2021
2 BvR 1866/17, 2 BvR 1314/18

In an order published today, the Second Senate of the Federal Constitutional Court in part granted two constitutional complaints against court orders authorising coercive medical treatment of the complainant while he was confined – first as a temporary measure and later as a “measure of reform and prevention” (Maßregelvollzug) for criminal offenders – in a psychiatric hospital.

During his psychiatric confinement as a criminal offender, the complainant was repeatedly subjected to coercive medical treatment at the request of the district hospital treating him, despite having previously documented in writing that he did not wish to be treated with antipsychotics. The orders issued by the ordinary courts authorising coercive treatment do not satisfy constitutional standards. When interpreting and applying the relevant Land legislation, the ordinary courts did not take sufficient account of the significance and scope of the fundamental rights of physical integrity arising from Art. 2(2) first sentence of the Basic Law (Grundgesetz – GG) and the general right of personality arising from Art. 2(1) in conjunction with Art. 1(1) GG. The orders were reversed and the matter remanded for a new decision.

Facts of the case:

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 enforcement 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 GG) and his human dignity (Art. 1(1) GG). Indirectly, the constitutional complaint is directed against the provisions relating to coercive treatment in Art. 6(3) to (6) BayMRVG (former version).

Key considerations of the Senate:

The constitutional complaints are largely successful.

I. The first constitutional complaint is inadmissible insofar as it is directed against the Regional Court’s order of June 2017 and the Higher Regional Court’s order on the lawfulness of the Regional Court’s decision. The complainant has not submitted the challenged decision of the Regional Court, nor has he sufficiently described the substance of that decision.

II. Insofar as the constitutional complaints are admissible, they are well-founded.

1. Any medical treatment administered against a person’s natural will amounts to an interference with the fundamental right to physical integrity. The fundamental right to physical integrity also protects a person’s right to self-determination in this regard. This traditionally includes protection against coercive treatment by the state. Subjecting a confined person to coercive medical treatment with antipsychotics amounts to an especially serious interference with fundamental rights.

2. Irrespective of the particular severity of the interference with fundamental rights, the coercive treatment of a confined person may nonetheless be justified.

a) Protecting the general public from criminal acts that the confined person might commit is not a suitable ground for justification because the same protection can also be achieved by keeping the person in psychiatric confinement without treatment. Justification can however be derived from the fundamental rights of other persons within the facility. Those who come into contact with the confined person inside the secure psychiatric facility are not protected by that person’s continued presence there. The duty of protection arising from the fundamental rights of these other persons can provide grounds to justify coercive treatment. Furthermore, the right to physical integrity of the confined person themself and their constitutionally protected interest in freedom may also result in a state duty of protection which is capable of justifying coercive treatment.

b) Nonetheless, coercive treatment may only be used as a last resort where less intrusive measures are not (or are no longer) an option and where treatment that interferes less severely with the fundamental rights of the person concerned would be futile. It is also necessary that the person concerned, due to illness, is incapable of appreciating the implications of their actions or of acting in accordance with such appreciation, and that serious attempts are made – taking the necessary time and without undue pressure – to obtain the person’s consent based on trust before the treatment is carried out. The principle of proportionality furthermore requires that the coercive treatment has good prospects of success in terms of achieving the desired objective 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.

c) Fundamental rights also give rise to procedural requirements. Notice of scheduled treatments must be given in advance, and coercive treatment involving medication must be ordered and supervised by qualified medical staff. In addition to documentation requirements, it is also necessary for the measure to be reviewed beforehand by a third party who is entirely independent of the institution where the person is confined.

3. Coercive treatment for the purpose of protecting the fundamental rights of the confined person themself is not, however, justifiable if the person has ruled out such treatment in a legally effective manner while having the capacity to appreciate the implications of their actions.

a) 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 – and thus insufficient grounds to establish a duty of protection on the part of the state. In principle, individuals are free to reach decisions on interferences with their physical integrity and to deal with their health at their own discretion. 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. By making reference to human dignity under Art. 1(1) GG, this fundamental right expands the guarantee of physical integrity to include a “freedom to be ill” (“Freiheit zur Krankheit”), thereby lending it special weight. The fundamental freedoms enshrined in the Basic Law encompass the right to exercise those freedoms in ways that might, in the eyes of third parties, run contrary to the apparent best interests of the fundamental rights holder. This includes the “freedom to be ill” and thus the right to refuse curative treatment even in cases where such treatment is urgently indicated in view of current medical findings and where the failure to undergo such treatment may lead to a permanent loss of personal freedom.

If, whilst capable of appreciating the implications of their actions, the person concerned has made a legally effective declaration refusing coercive medical treatment, the state may not override this decision – at least not on the grounds of protecting that person in psychiatric confinement. The state’s duty of protection vis-à-vis the person concerned must stand back in this respect.

b) This presupposes that the person concerned reached their decision of their own free will and in awareness of the implications. Whether this is in fact the case must be assessed in a two-staged review. Firstly, the declaration needs to have been made when the person concerned was capable of appreciating the implications of the declaration’s content. Secondly, the content of the declaration 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. If the requirements for a binding declaration have been 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 – including when 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.

c) This is without prejudice to the state’s duty to protect the fundamental rights of others who come into contact with the person concerned within the psychiatric facility and who may therefore be at risk of being assaulted due to that person’s illness. The patient’s autonomous decision only extends as far as their own rights are concerned. The rights of others are not at their disposal. If the legislator, in exercising its duty of protection, makes provision for the coercive treatment of confined persons who pose a risk to others, it must do so in accordance with the principle of strict proportionality.

4. The challenged court decisions do not comply with these standards. The interferences with physical integrity under Art. 2(2) first sentence GG caused by the coercive medical treatment are not justified.

a) It is true that the legal basis in Art. 6(3) and (4) BayMRVG (former version) – in conjunction with Art. 41 no. 3 BayMRVG (former version) in relation to temporary placement – satisfies the requirements that the Basic Law places on the authorisation of coercive treatment.

In keeping with the case-law of the Federal Constitutional Court, the provision specifies both the formal and the substantive requirements for coercive treatment. The conditions under which an interference is permissible are also set out in sufficiently clear and specific terms. In particular, the concept of “respecting” an advance healthcare directive in Art. 6(4) sixth sentence BayMRVG (former version) is compatible with specificity requirements. Furthermore, Art. 6(3) no. 1 BayMRVG (former version) fulfils the constitutional requirement of making coercive treatment conditional upon the person concerned not having the capacity, due to illness, to appreciate the implications of their actions or to act in accordance with such appreciation.

b) The challenged court decisions do not, however, satisfy constitutional standards.

When interpreting and applying the provisions, the ordinary courts did not take sufficient account of the significance and scope of the fundamental rights of physical integrity arising from Art. 2(2) first sentence GG and the general right of personality arising from Art. 2(1) in conjunction with Art. 1(1) GG. The courts did not bear in mind that where the sole purpose of coercive treatment is to protect the person concerned, such treatment is prohibited from the outset by the right to self-determination if there is a legally effective advance healthcare directive that opposes such treatment. It is true that the courts did consider the complainant’s declaration of 11 January 2015 to be an effective advance healthcare directive (or “living will”) within the meaning of § 1901a of the Civil Code (Bürgerliches Gesetzbuch – 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 appreciating the implications of his actions when he made the declaration and whether its substance extended to the specific treatment situation in the psychiatric facility. While acknowledging the existence of a legally effective advance healthcare directive, the courts accorded less weight to the declaration of 11 January 2015 than to the state’s duty of protection vis-à-vis the complainant’s health and in particular vis-à-vis preparing him for potential release, without considering the extent to which the complainant’s right to self-determination as a patient imposed limits on the duty of protection. Accordingly, the courts did not consider the rights of third parties who might be exposed to physical attacks by the complainant in the psychiatric facility and whose protection could justify an interference with his fundamental rights. The Federal Constitutional Court is thus unable to review the question of whether coercive treatment was in this case justified in order to protect other persons in accordance with Art. 6(6) BayMRVG (former version).