|
Good
news from the supreme court in Germany
Two weeks
ago our supreme court (the court on constitutional rights) published it's
verdict on the question of whether or not forced treatment in a forensic
psychiatric prison is allowed.
They ruled that the regional state law on which the lower courts decided
was unconstitutional and is therefore immediately no longer valid.
This is in effect valid for all states in Germany. The court said that
a law allowing forced treatment might be made but there are conditions
to be fulfilled and the restrictions are so tight that the supreme court
considered this not possible under the present circumstances.
For us the most important is their statement that forced treatment
might be allowed, but only to restore the ability of a patient to consent
or to refuse treatment. However, this only applies if the incapacity to
consent or to refuse treatment is because of the patient's mental illness.
The judges ruled this as being the "ability to exercise the constitutional
right to freedom which must exist in practice".
That means that our type of advance medical directive gives exactly the
right advice, namely the ability to consent at a previous time and it
is therefore valid, because it is then the will of the patient by law.
The second tight restriction the supreme court ruled is that any coercion
would be only allowed in the event of a danger to oneself, any danger
to others being prevented by the incarceration in a forensic prison anyway.
So our special Psychiatric Advance Directive (PAD) PatVerfü®
is also valid in forensic prisons anyway :-)
We have developed this special PAD PatVerfü® in
accordance with our new German law on advance medical directives, which
successfully excludes any coercive measures in psychiatry, be it psychiatric
examinations/diagnoses, incarceration or treatment.
This is our new internet presentation in English: http://www.patverfue.de/patverfue_english.html
, where we now have an English translation of this form which I also enclose
as a pdf attachment. There is also a facebook page for communication about
our PAD: http://www.facebook.com/group.php?gid=96315707940&v=wall&viewas=0#%21/group.php?gid=96315707940&v=info
The subtitle of our PAD PatVerfü® is:
"Insane? Your own choice!"
We assume that the deal behind the scenes is that the court ruled the
CRPD out of the game, because in the reasons for the verdict it negated
every argument given by our lawyer on the grounds of the CRPD in an expert
opinion, which is now published here http://www.die-bpe.de/forensik
As, according to the CRPD, all psychiatric coercion would have to be abolished,
they decided in favour of the destruction of the CRPD and instead ruled
the existing law to be unlawful and an advance medical directive to be
binding.
So our funeral of the CRPD on November
10 was unfortunately perfectly right as it is now proved that any
hope on a German court to fulfil the promises of the CRPD was in vain.
In case you may have a special interest learning more, I can try to explain
how sinister the argumentation of the supreme court is. In case you would
like to get a vague idea of the argumentation of the court and how they
ruled out the CRPD in paragraph 52 and 53, below I add an unedited google
translation of the verdict.
So the conclusion of our struggle is that the most promising way to go
is an intermediate step putting all efforts
on innovations in the PAD to advance it into a legally "watertight" loophole
in the psychiatric coercion system. As soon as an "opt out" of the system
is possible in a legally binding form, an alleged "mental illness" will
prove to be a mystification because it exists only if one makes the mistake
of not being in possession of a certain document, namely a special kind
of PAD (a PatVerfü®).
That erodes to vanishing point the belief of any "objectivity" on mental
illness.
Best regards
rene talbot
(Secretary of IAAPA and member of the board of a national German user and survivor organization)
-----------------------------------------------------------
Decisions
Copyright © 2011 Federal Constitutional Court
Citation: Federal Constitutional Court, 2 BvR 882/09 of 23.3.2011, section
no. (1 - 83), http://www.bverfg.de/entscheidungen/rs20110323_2bvr088209.html
Free for non-commercial use. Commercial use only with the consent of the
court.
FEDERAL CONSTITUTIONAL COURT
- 2 BvR 882/09 -
On behalf of the people
In the process on the constitutional complaint
Mr P. ..
- Represented by Dr. David Schneider-Addae-Mensah,
Heidenschanzweg 3, 77694 Kehl -
against a) the decision of the Palatinate Zweibrücken Higher Regional
Court of 18 March 2009 - 1 Was 365/08 (Vollz) -,
b) the decision of the Landgericht Landau in der Pfalz of 16Oktober 2008-2
StVK 255/06 -
c) the announcement of the forced medication of the complainant by letter
of Pfalzklinikum Klingenmünster 28September 2006 - Dr. Atm. / Zs. -
the Federal Constitutional Court - Second Senate - composed of judges
President Voßkuhle,
Di Fabio,
Mellinghoff,
Lübbe-Wolff,
Gerhardt,
Landau,
Huber,
Hermanns
23 March 2011 decided:
§ 6 paragraph 1 sentence 2 of the Rhineland-Palatinate state law on the
enforcement of custodial penalties (indefinite detention law - MVollzG
-) of 23 September 1986 (Law and Official Gazette for the state of Rhineland-Palatinate,
page 223), as last amended by Law of 22 December 2004 (Law and Official
Gazette for the state of Rhineland-Palatinate, page 571), is compatible
with Article 2, paragraph 2, sentence 1 in conjunction with Article 19,
paragraph 4 of the Constitution inconsistent and void.
The decisions of the District Court of Landau in the Palatinate of 16
Oktober 2008-2 StVK 255/06 - and the Palatinate Zweibrücken Higher Regional
Court of 18 March 2009 - 1 Was 365/08 (Vollz) - violating the complainant's
fundamental right under Article 2, paragraph 2, sentence 1 of the Basic
Law. The resolutions are repealed. The case is remanded to the District
Court of Landau in the Palatinate.
Moreover, the constitutional complaint is rejected.
Rhineland-Palatinate to pay the complainant the necessary expenses.
Reasons:
A.
I.
1
The constitutional complaint concerns the treatment of a penalty in indefinite
detention accommodated on the basis of § 6 para 1 sentence 2 clause 1
of the Rhineland-Palatinate state law on the enforcement of custodial
penalties (indefinite detention law - MVollzG).
2
§ 6 MVollzG Rh.-Pf. is as follows:
3
§ 6 admissibility of measures
4
(1) Surgical procedures, treatments, and studies to be associated with
a significant health risk or a danger to the lives of patients placed,
are permissible only with his consent, or other surgical procedures, treatments
and inspections without the consent of the patients placed allowed for
Danger to life, with serious danger to the health of patients placed at
risk or the health of other persons.Moreover, treatments and tests to
achieve the performance goal without the consent of patients placed are
carried out, the general health and hygiene, they are allowed if they
are not connected to an intervention.
5
(2) The forced feeding of patients placed is allowed if and as long life
or a serious threat to his health, as he is unconscious, he other reasons
for the natural food intake is not in the position and offers no physical
resistance or it'ssake of illness can not be determined freely. The accommodated
patient who refused food intake is to teach about the dangers and consequences
of his behavior.
6
(3) For the forced implementation of measures pursuant to paragraphs 1
and 2, the device is not required as long as may be expected from a free
determination of the will of the patients placed on, except in case of
danger to the health of others.
7
(4) the patient is housed not in a position to reason, meaning and scope
of the measures or to view his will be determined according to this view,
the consent of his legal representative shall prevail. If the patient
while housed and above the one skill, but it is limited in capacity, so
in addition to his consent, his legal representative is required.
8
(5) The measures must be reasonable for the patients placed and must not
be disproportionate to the expected success.You may be performed only
by order and under the direction of a physician. The provision of first
aid is not affected, the legal representative of patients placed shall
be informed of the incident, which made the provision of first aid needed.
9
(6) via a conducted against the wishes of the patients placed in action
the regulator and a top of the regulator to be determined doctor and the
legal representative of patients placed be informed accordingly.
10
The bill became Act, § 6 MVollzG Rh.-Pf. is a recommendation of the Committee
for Social Affairs and Health of the State Parliament of Rhineland-Palatinate
(LTDrucks 10/2613) basis. The original version of the draft law of the
state government (LTDrucks 10/1669, p. 7) was due to lack of precision
of the definition has been criticized for the various provisions of paragraph
1 of each other (see Landtag Rheinland-Pfalz, Committee on Social Affairs
and Health, Minutes of the 23rd meeting on 4 February 1986, p. 2). In
the debate that preceded the vote in committee, a ministry official said
the understanding of the draft resolution (Landtag Rheinland-Pfalz, Committee
on Social Affairs and Health, Minutes of the 26th meeting of 25 April
1986, p. 1) could, in paragraph 1 clearly a four-fold variation of the
various measures will be seen. After the first sentence of § 6, policies
that were connected with a significant health risk to the patient, be
carried out only with the consent of the person concerned. After the second
sentence were other actions without the consent of the patient may only
be in danger, serious danger to the health of patients placed at risk
or the health of other persons. By the beginning of the following sentence
with the words "the rest" of this sentence below the level of sentence
1 is located. Measures to achieve the objective law enforcement should
only be carried out without the consent of the patient when they are not
connected to a health risk. The second sentence makes it clear that these
measures could be applied only if they are not connected to an intervention.
In the final vote in plenary session of the parliament confirmed a deputy
that "in § 6 interferes seriously - we are of one mind - such as surgery,
examinations and treatments, which pose a significant health risk in itself,
or may constitute a danger to the life made only with the consent of the
patients placed or his representative "should (Landtag Rheinland-Pfalz,
Minutes of the 76th meeting of 11 September 1986, p. 4602 <4606>).
II
11
1. The complainant is due to ruling of the Landgericht Frankenthal (Pfalz)
since 16 December 1999 Pfalzklinikum Klingenmünster placed in indefinite
detention. He was due to a delusional disorder in a state of Insanity
smashed a wine bottle on his sleeping wife and tried to suffocate them.
Then he had taken with another bottle of wine to his daughter lying in
bed.
12
By the end of December 1999 to February 2000, the complainant was treated
with an atypical antipsychotic. The further treatment of the complainant
refused because of side effects. During the annual review of the continuation
of housing, the external experts Prof. Dr. N. in 2005 that the cause of
the paranoid psychosis Anlasstat continues to exist.The only way to improve
the mental state lies in a drug treatment with antipsychotics. From February
to November 2006, the complainant was under supervision in the field of
health care. A requested by the former supervisor and the guardianship
court granted approval for the treatment of the complainant with neuroleptics,
the Land Court on the ground, was the treatment, since there is no risk
of serious and prolonged damage is associated with it, subject to licensing
pursuant to § 1904 BGB. The guardianship court refused and the reasons
for the granting of the permit.
13
2. With a compromised letter of 28 September 2006 then announced to the
clinic treating the complainant with an appropriate antipsychotic drug
that is injected intramuscularly, possibly even against your will ". While
the administration may have to be carried out at regular intervals, blood
samples, as the drugs may lead to blood disorders or interfere with the
metabolism of the liver. In the administration of drugs, there is the
only way to correct the delusional beliefs of the complainant. According
to § 6 paragraph 1 MVollzG Rh.-Pf. could treatments and studies to attain
the objective enforcement without the consent of the patients placed be
carried out. The complainant is free to appeal against the measures announced
by the Board of Criminal Enforcement Association.
14
3. a) The complainant lodged a "complaint" and requested an external evaluation
specialist. The threatened in treatment is associated with a significant
risk to health and therefore not admissible against his will. The danger
is clear already from the clinic even mentioned possibility of blood disorders
and functional impairment of the liver. In addition, the drug affects
personality changing. That the guardianship court had denied the existence
of serious and prolonged damage to health, does not preclude this, because
the requirements of Civil Code § 1904 and § 6 MVollzG Rh.-Pf. are not
synonymous. Medical interventions should also even if they are not associated
with significant health risk, according to § 6 paragraph 1 sentence 1
sentence 2 MVollzG Rh.-Pf. be made only with life-threatening or serious
health risk to third parties or placed against his will. Thereto is lacking.
The emergency medication also disregards the principle of proportionality.
Even the appropriateness of the treatment is - a mental disease assume
- in doubt. In the past, such treatment had not struck. The treatment
is not necessary and the complainant will attend therapy sessions, simply
cleaning their environment and behave in a disciplined amazing.
15
b) The hospital had in its opinion, the second November 2006 indicated
that the earlier treatment with the drug Zyprexa was too short to achieve
a significant improvement in symptoms. A minimum treatment period of six
months was required. The complainant there is no insight into the disease,
he believed in uncorrectable way onto his paranoid ideas and effect relationship.
The meaning of the treatment he could do so no reason. Rather he feared
that his ability to put up to defend against harmful substances, is affected
by the drugs. Without drug therapy, the accommodation would amount to
a mere storage and lead to a hardening of the disorder. Come to this conclusion,
the experts Prof. Dr. N.Could be regarded as a success even if a partial
correction and Entdynamisierung the problem could be achieved. The complainant
feared side effects such as dry mouth or fatigue may be kept very low
by proper treatment.
16
c) The District Court of the complaint, as an application under § 138
para 3, of the Prison Act § 109 para 1 and pointed with a compromised
order of 16 October 2008 the application back with the proviso that a
compulsory drug treatment was allowed by atypical antipsychotic drugs
for a period of six months.
17
The emergency treatment of an agency pursuant to § 63 StGB accommodated
clients a massive violation of the fundamental right under Article 2 paragraph
2 sentence 1 GG dar. your admissibility is governed by § 6 MVollzG Rh.-Pf.
18
The consent requirement of § 6 para 1 sentence 1 sentence 1 MVollzG Rh.-Pf.
for treatment interventions with substantial public health risk or danger
is not applicable. Accurate diagnosis and proper medication provided that
the treatment with neuroleptics was generally not a life or a significant
risk attached to health. Even after assessment of the treating medical
specialists, there is only a very low probability of the occurrence of
severe and prolonged damage.
19
According to § 6 paragraph 1 sentence 1 sentence 2 MVollzG Rh.-Pf. are
measures without any consent only - allows a particular risk situation
- not present here. Legal basis for the forced treatment of the disease
is therefore reason to § 6 paragraph 1 sentence 2 clause 1 MVollzG Rh.-Pf.
As far as the wording of this provision ("Moreover, treatments and tests
to achieve the performance goal without the consent of the patients placed
are carried out; ...") any compulsory treatment is permitted, the regulations
require, however, the constitutional interpretation to the effect that
a lower and to observe a maximum allowable treatment were.In the particular
case existed to the proposed compulsory treatment no concerns. The complainant
suffered for years from severe mental illness in the form of delusions.
As a result, it would have been no relaxation can be granted.Various attempts
to withdraw their consent to a drug therapy to achieve were failed. The
complainant was not due to his illness in a position to the severity of
his illness and the need for treatment measures assessed. He was therefore
not able to consent. Self-determination of accommodated clients and cases
in less weighty principle, existing "freedom of illness" would find its
limits, where a threat of injury to important health must be averted.
The planned treatment with atypical antipsychotics may minimize side effects
occurring. The planned regular checks could severe or long-term property
damage. That in the previous treatment was not a success occurred, the
doctors had explained to understand the short duration of treatment. The
principle of proportionality is respected. The emergency treatment constitutes
the last possible means dar. The expected side effects were relatively
small. A high probability of improvement of disease rise was expected.
20
The treatment is however justified by the medical explanations for only
a period of six months, then, if necessary, an external expert should
be consulted. In each case the new resolution needed on the necessity
of continuing the forced medication of documentation and notification
to the housed.
21
4. a) The right to appeal (§ § 116 ff of the Prison Act) the applicant
complained again, § 6 MVollzG Rh.-Pf. do not allow the announced treatment.
This lacks the necessary legal basis. The Criminal Appeal failed to recognize
the disproportionate enforcement of compulsory treatment. With regard
to the - very well even with existing atypical antipsychotics - risk of
serious side effects they had not sufficiently explained the facts. been
neglected is the risk that the treatment by a mental defect or reinforcing
the first picture.
22
b) The Court of Appeal rejected with a compromised order of 18 March 2009,
the appeal as unfounded. The legal basis of compulsory treatment were
set out by the criminal enforcement of Appeal rightly. With § 6 paragraph
1 sentence 2 MVollzG Rh.-Pf. have the state legislature want to make sure
as evidenced by the legislative history that during the execution of a
measure of reform and safeguarding the patient not only keeps, but also
when will necessarily treated against his will, in order both to enable
the housed in the Community INTEGRAL life to guide and protect the other,
the general public from further illegal acts.This serves the purpose of
restoring the treatment of mental health and thus the completion of the
placement. That compulsory treatment is not possible without restraint,
but to restrict the principle of proportionality is evident from § 6 paragraph
5 MVollzG Rh.-Pf. The complainant in the case of the proposed administration
of atypical antipsychotics serve as § 6 paragraph 1 sentence 2 MVollzG
Rh.-Pf.presupposes the completion target. According to the findings of
the criminal enforcement of Appeal also had given no indication that the
treatment could lead to a personality change in the core area, such as
pursuant to the express provisions of various state laws would conflict
with a compulsory treatment. The documents submitted by the complainant
as attachments publications on antipsychotic drugs are not likely to produce
a different assessment. They reflected only the bandwidth of the general
discussion on the advantages and disadvantages of these drugs against,
but would have little meaning for the individual case. That the type and
dosage of the future treatment were not specified in detail, be harmless,
so far if it were first collected by physicians at their own critical
questions.
III.
23
The constitutional complaint is directed against the decisions of the
District Court and the Higher Regional Court and to the announcement of
the forced medication from the hospital, the complainant alleges that
his rights under Article 2, paragraph 2, Article 1 paragraph 1 GG and
Article 3ECHR and his right to a fair trial were violated.
24
Even the threat of forced medication constitutes an encroachment on the
scope of Article 2 paragraph 2 sentence 1 GG dar. for the intervention
lacked a sufficient legal basis. § 6 MVollzG Rh.-Pf. allow forced medication
for severe physical and psychological interventions only with the consent
of the person concerned. About a sense of § 6 para 1 sentence 1 sentence
1 MVollzG Rh.-Pf. dangerous treatment that should not be made without
consent, if they were given the different effects of different antipsychotic
drugs, if only because the drug specifically to be employed is not specified
and the treatment was not otherwise unspecified. Because of respective
concrete depended intervention and proportionality. With significant health
effects is also limited to expect the medication to atypical antipsychotics.
The current state of science does not allow reliable conclusions about
the effectiveness and side effects of atypical antipsychotics as typical.
The courts have failed to trace the. The danger of the planned treatment
is clear because the earlier treatment is done only over a short period,
even earlier is not from this treatment. The forced medication is disproportionate
in that neither their nor their necessity and appropriateness of appropriateness
where common ground is. Moreover, would interfere in the choice of the
complainant by allowing him to set the warning that he could otherwise
never be released, under pressure. His ability to assess the health effects
of the treatment itself, is illustrated by that he was not under supervision.
Patient should not be forced to become healthy. Article 2 paragraph 1
GG protect and intentional self-harm. The complainant would be made in
breach of Article 1 paragraph 1 GG to the object.
IV
25
To the constitutional complaint, the federal government, the state government
and the parliament of Rhineland-Palatinate, the Federal Court, the German
Society for Psychiatry, Psychotherapy and Neurology (DGPPN) and the Association
of Psychiatric experienced their opinion. The Federal Council and the
parliaments and governments of other countries have used the opportunity
to be heard no use.
26
1. For the Federal Government, the Federal Ministry of Justice on forced
treatment on childcare legal basis, that: The appointment of a guardian
for an adult is presupposed that this due to his illness or disability
are no longer able to free will. Scale for the actions of the supervisor
are the wishes and welfare of their care. Before, there was no living
will have to orient themselves to the host at the alleged will of their
care. The emergency treatment for child-care law are possible only when
a supervisor ordered against the (natural) will of their care was possible
because a contrary determination was not made free of medical intervention
is the only subjectively-understood interests of their care need and cared
for so far no have made the treatment contrary to the will free. The guardianship
law to recognize both the freedom to disease as well as the freedom to
self-injury. An "improvement" of their care against their free will allow
the right care is not. The do not find universal approval. In particular,
parents often begged urgently for state enforcement action to protect
their drug-addicted adult children. From the perspective of the federal
government gives no reason to depart from the concept of care applicable
law. Whether measures of compulsory treatment for emergency law, or in
case of an accommodation in the forensic psychiatry, forensic psychiatry
after law allowed and were covered by the specific purpose of settling
these legal bases, it is clear from state law.
27
2. a) For the Rhineland-Palatinate state government, the Ministry of Justice
has taken a position. The planned treatment with neuroleptics was necessary
for legal and medical aspects. The forensic psychiatric hospital had to
treat a target-oriented implementation of the treatment order (§ 5 para
1 and 2 MVollzG Rh.-Pf.), which lead it to the illness of the patients
placed comprehensively. § 6 § 1 MVollzG Rh.-Pf. allow interventions that
are associated with a particular risk for housed only with their consent,
however, other interventions are permissible without consent. It was necessary
to distinguish between surgery and simple interventions, such as through
a syringe. In the present case, only simple operations, namely, the intramuscular
injection of the drug and the usual blood from the vein, is provided.
Both can take place without the consent of the patients placed. Of the
drug itself is no significant health risk to go in terms of § 6 para 1
sentence 1 sentence 1 MVollzG Rh.-Pf. from. Without the treatment the
applicant's health is endangered by the disease cause serious. The medication
should also be done in this case necessarily. The prison hospital had
tried long and hard to gain the consent of the complainant. The threat
of freedom he had his limitations with regard to the expected successful
treatment, the medium term could lead to dismissal from the indefinite
detention, reasonable, and are not disproportionate to the expected success.
28
b) By letter dated 2nd November 2010 has filed later, the Rhineland-Palatinate
Ministry of Justice has in the meantime in the process of review of placement
that opinion of specialist in neurology and psychiatry and psychotherapy,
Dr. P., which states that the complainant is still a delusional experience
processing with the issue of impairment and intoxication be determined.
If it were a time of persistent mental illness in the schizophrenic group.
In the meantime, more than ten years of disease there had been a serious
chronic, significant decreases in symptom expression were not observed.
Improving the prognosis was only through a consistent medical treatment
with an antipsychotic drug: to achieve (formerly known as neuroleptics).
These drugs are effective on clinical and scientific knowledge in the
resolution of delusions and hallucinations, would reduce the mistrust
and hostile rejection of the patient and thus form the basis of a therapeutic
alliance and more extensive psycho-social and therapeutic measures. The
failure so far been the reduction of crime related symptoms was due solely
to the refusal of the offered pharmacological treatment. The failure to
treat a greater effect on criminal prognosis, because the responsiveness
to drug interventions significantly with the duration of untreated psychosis
was declining. Whether the treatment in the future promising, it is given
the many years left to itself the natural course remain open. Without
treatment, there was a risk that the complainant permanently due to the
continuing tort relevant delusional symptoms had no chance of rehabilitation.
29
3. The State Parliament of Rheinland-Pfalz State law holds that the applied
procedure for constitutional. § 6 paragraph 1 sentence 2 clause 1 MVollzG
Rh.-Pf. not violate human dignity. The disciplinary measures should the
patient provide the opportunity to again lead to a self-determined life
in freedom, he was treated accordingly (§ 5 para 1 MVollzG Rh.-Pf.). The
completion target is justified, however, not every possible treatment
against the wishes of the patient.Wear the § 6 paragraph 1 sentence 2
clause 1 MVollzG Rh.-Pf. Account, as the rules authorize, as shown in
§ 6 paragraph 1 sentence 1 sentence 1, § 6 para 3, § 6, paragraph 5, sentence
1 MVollzG Rh.-Pf. shown only for the particular case proportionate measures.
§ 6 paragraph 1 sentence 2 clause 1 MVollzG Rh.-Pf. satisfy the constitutional
requirements for the physical integrity of limiting law. The principle
of legality was respected. The phrase "otherwise" in § 6 paragraph 1 sentence
2 clause 1 MVollzG Rh.-Pf. cabinets in accordance with § 6 paragraph 1
sentence 2 clause 1 MVollzG Rh.-Pf. permissible measures on one. The engagement
was therefore permissible only if the measures were not associated with
a significant health risk or a danger to the life of the patient.From
the point of proportionality § 6 paragraph 1 sentence 2 clause 1 MVollzG
Rh.-Pf. harmless. From the jurisdiction of the Federal Constitutional
Court on involuntary placement in a mental institution is apparent that
even against the will of the Basic Law carrier interference with bodily
integrity that are not associated with a risk to life or a significant
health risk to those affected, but to protect him could be allowed. detect
if the patient the importance of the intervention or the refusal could
not be, according to § 6 paragraph 4 MVollzG Rh.-Pf.to proceed. If the
patient to determine free will in a position to be a compulsory treatment
by § 6 paragraph 5, sentence 1 MVollzG Rh.-Pf. prohibited. In § 6 paragraph
1 sentence 2 clause 1 MVollzG Rh.-Pf. penalties provided are appropriate
for attaining the objective pursued. Basically there is the possibility
of reaching such a drug treatment forced an improvement to the health
status of the patient and his release from indefinite detention or to
pave the way for a then leading voluntary treatment. Less engaging resources
would not be available. As far as the appointment of a supervisor had
been considered to be less restrictive, it should be noted that an approved
treatment of this constraint has the same intensity of intervention. It
adds that the state legislature not to be referred to federal law regulating
powers of intervention to support the law. The scheme also note the prohibition
of abuse. There is no danger to life through the treatment still a significant
health risk, be balanced against the risk of indefinite continuation of
the accommodation in the forensic psychiatry in the case of non-treatment
given the opportunity disease. Unless a compulsory treatment order to
achieve the performance goal against the free will of the patient as already
in accordance with § 6 paragraph 5, sentence 1 MVollzG Rh.-Pf. considered
inadmissible, can § 6 paragraph 1 sentence 2 clause 1 MVollzG Rh.-Pf.
taking into account § 6 paragraph 3 MVollzG Rh.-Pf. shall be similarly
unconstitutional.
30
4. The President of the Federal Court issued an opinion of the XII. Civil
Division for forced treatment under guardianship law sent. The supervisor
must be a legal representative of their care for that consent to medical
treatment when the Supervised was not able to even, especially not insight
or control capable of. The supervisor was not entitled, however, the overcoming
of such treatment will of the opposing assisted by coercion. The power
of this could arise only from a formal law, the contents of the subject,
purpose and scope to be determined by their care under compulsion sufficiently
tolerating treatment. Merely from the representation provisions of § §
1901, 1902 of the BGB is no such coercive power. However, § 1906 para
1 No. 2 BGB makes sense to be interpreted as meaning that the Supervised
have to endure not only his custodial accommodation, but also the measures
for which he should be accommodated. 1906 § 1 No. 2 BGB the admissibility
of a custodial accommodation refers to an double necessity criterion:
The accommodation must be necessary because the medical procedure is necessary
and without the custodial placement in fact could not be performed. As
far as forced medical treatments are permitted, whether in any case, a
carer entitled "Freedom for the disease to be considered.
31
5. The Federal Association of Psychiatric Association has experienced
a compulsory treatment against the will of the person concerned for the
Constitution and the principle of human rights. Specifically, the treatment
was not further concretized neuroleptics in the present - exemplary -
case find unconstitutional and no basis in § 6 MVollzG Rh.-Pf.
32
Measures that are associated with a significant health risk or a danger
to the lives of patients placed should, according to § 6 MVollzG Rh.-Pf.
be made only with its consent. And atypical antipsychotic drugs were characterized
by diverse and sometimes common side effects. Since therefore goes hand
in hand with the administration of antipsychotic drugs a major health
risk for the complainant to find the compulsory treatment has no simple
statutory basis in § 6 § 1 MVollzG Rh.-Pf. Even if the special courts
with the requirements of § 6 para 1 sentence 1 sentence 1 MVollzG Rh.-Pf.
would not consider to be met, the compulsory treatment unconstitutional
grab here in the fundamental right under Article 2 paragraph 2 sentence
1 GG. If it were a purely precautionary measure, which should create the
conditions for a later release ability of the patient. Which are housed
am, however, the freedom of the disease. In weighing the right to freedom
of the individual concerned would lead to a different conclusion. A balancing
of different fundamental rights of the individual concerned was itself
unlawful, the ranking and prioritization of the fundamental rights alone
stand by their vehicle. Against a compulsory treatment of the disease
also speaking occasion that it was not for the successful course of therapy
useful - as trust motivationsabträglich and destructive - is, forced to
use.Without concrete view of treatment success is a compulsory treatment
is not constitutionally permissible.
33
§ 6 MVollzG Rh.-Pf. is incompatible with the UN Disability Convention.
Article 12 paragraph 2 of the Convention obliges the States, the legal
capacity in terms of legal capacity to recognize. Protected is not only
the ability to have rights to be, but also the ability to exercise those
rights. Coercive treatment can not be understood as a measure of that
type within the meaning of Article 12 paragraph 3 of the Convention of
the person with disability, the support that they needed to exercise their
legal capacity, because the legal action would have taken her straight
to the compulsory treatment .
34
6. For the German Society for Psychiatry, Psychotherapy and Neurology
(DGPPN) have its president, Prof. Dr. Dr. Frank Schneider, and their health
policy spokesman, Prof. Dr. Jürgen Fritze, a detailed opinion on the question
of the possible benefits and the risks and possible side effects of treatment
of a mentally ill be delivered by the antipsychotic drug.
35
The representation of the knowledge points to individual side effects
include a significant part of the scattering at different frequencies,
and studies indicated, at least in terms of motor disorders, a dependence
of the probability of occurrence of the duration of administration. In
conclusion, the opinion reached the following conclusions: At the antipsychotic
efficacy of neuroleptics against the target symptoms, there is no doubt.
This effectiveness was demonstrated primarily in studies of schizophrenia.
Patients with psychotic symptoms, other causes could also benefit from
neuroleptics, even if this there is no explicit drug approvals. It is
impossible to say for the individual patient, a priori, which is the largest
neuroleptic therapy, and the least side effects promise and it is therefore
inevitable to give individual patients the chance to try out one after
several antipsychotics. The various available antipsychotics differ in
their effectiveness in a non-relevant for the individual patient measurements.
They would often clearly objective and perceived side effects and in particular
motor and autonomic functions. Depending on their receptor binding profile,
they differed in the range of its common side effects. The common side
effects are generally reversible after discontinuation. After discontinuing
neuroleptics left no lasting personality changes. Life-threatening side
effects were possible, they came very rare (<1/10.000) or occasionally
(= 1/1.000 to <1 / 100) before. One exception is clozapine (up to about
1 / 100) dar.
B.
36
The constitutional complaint is admissible, unless the complainant challenges
the decisions of the District Court and the Court of Appeal. Moreover,
it is inadmissible. After the complainant failed to substantiate the challenged
view of the specialized courts should be by the announcement of the forced
medication in the letter of Pfalzklinikum Klingenmünster 28 September
2006 the complainant will only be possible before the start of compulsory
treatment in an effective manner, namely in the form of a preventive injunction,
legal protection to claim.
37
As far as the constitutional complaint is admissible, it is well founded.
The decisions that the District Court and Court of Appeal confirmed the
announcement of compulsory treatment as legitimate violate the complainant's
fundamental right under Article 2 paragraph 2 sentence 1 GG. For the announcement
of compulsory treatment already missing the required, the constitutional
requirements appropriate legal basis.
38
The compulsory medical treatment of accommodated clients takes seriously
in its fundamental right under Article 2 paragraph 2 sentence 1 GG a (I.).
Although such an intervention, a way to achieve the objective enforcement
may be justified in individual cases. The principle of proportionality,
however, there are strict requirements for the admissibility of the procedure.
This applies to the material prerequisites for intervention as well as
their protection by procedural measures. The triggering conditions must
be regulated in a clear and precise manner (II). These requirements are
sufficient to intervention authorization of § 6 para 1 sentence 2 clause
1 MVollzG Rh.-Pf. not (III).
I.
39
1. The medical treatment of accommodated clients against his natural will
(in short, compulsory treatment) engages in the fundamental right to bodily
integrity of a (Article 2 paragraph 2 sentence 1 GG). This basic law protects
the physical integrity of the base entity and therefore the self-determination
in this regard. To its traditional content include the protection against
state coercion in treatment (see BVerfGE 79, 174 <201>).
40
2. The nature of a compulsory treatment intervention is not precluded
that it is undertaken for the purpose of healing.Target direction is not
a harmful condition for the existence of breaching the fundamental right
to physical integrity (see BVerfGE 89, 120 <130>; Federal Constitutional
Court, decision of the 2nd Chamber of the First Panel of 5 March 1997
- 1 BvR 1071/95 - , NJW 1997, p. 3085).
41
The engagement quality not already deleted when the person opposes the
rejected treatment no physical resistance. The mere abandonment of a particular
form of protest can not be readily interpreted as consent. The medical
treatment of a housed, affecting its nature the fundamental right to bodily
integrity does, in this basic law, a possibly not when it is free from
the one on the basis of the offered medical education, given the consent
of accommodated clients are covered. This implies that is housed capacity
to consent (references omitted 29, 46 <51>, 154, 205 <210>)
and no undue pressure has been exposed, such as the Inaussichtstellen
of disadvantages in the case of treatment refusal, not as a necessary
consequences arising from the state, remain in which the person is not
expected or to which he is expected to fall because of his refusal.
42
Disease-related inability of an insight accommodated clients does not,
however, that that is made against his will, natural treatment that affected
his physical integrity, a distinct change in the scope of Article 2 paragraph
2 sentence 1 GG is. It can lead to the contrary, that the interference
is experienced by the victim as particularly threatening, and therefore
increase the weight of the intervention still (see under 3.) Lack of discernment
allows the protection of Article 2 paragraph 2 GG not be omitted from
the outset (see BVerfGE 58, 208 <224 et seq; Constitutional Court,
Order of the 3rd Chamber of the First Senate of August 2, 2001 - 1 BvR
618 / 93 -, NJW 2002, p. 206 <206 f.>; for the freedom of the person
fundamentally BVerfGE 10, 302 <309>). When asked whether other fundamental
rights are different (see, for testamentary freedom BVerfGE 99, 341 <351>),
it is not here. Even the consent of the appointed for inspection and the
capacity to consent accommodated clients supervisor does not, therefore,
measure the engagement of character, which is that it is against the natural
will of the parties (see, for engaging in the fundamental right to freedom
of that person's accommodation BVerfGE 10, 302 <309 et seq; for medical
in the compulsory treatment of accommodated clients lying engagement Popp,
compulsory treatment of psychiatric patients in the care law, 2003, p.
75 ff; Tietze, outpatient commitment in the care law, 2005, p. 56 ff ,
v. Storch, The "caring" deprivation of basic rights, 2006, p. 30 ff, with
further references).
43
3. In the forced medical treatment of a housed with antipsychotic drugs
is a very serious infringement of fundamental rights.
44
The substantive liberty guarantees of Article 2 paragraph 2 GG - including
the right to physical integrity - have among the constitutionally guaranteed
rights of a particular weight (see BVerfGE 65, 317 <322>). Medical
compulsory treatment of housed, and in particular surgery and forced medications
make, also a particularly serious form of intervention into the right
to a limb (see Wagner, in: Kammeier, indefinite detention, 3rd edition,
2010, para D 146;. Lesting, in: Marschner /
Volckart / Lesting, detention and accommodation, 5 Ed 2010, para. B 208,
Marschner, R & P 2005, p. 47 <49>; from a psychiatric point
of view Swiss Academy of Medical Sciences <im Folgenden: SAMW>,
coercive measures in medicine, medical-ethical guidelines of the SAMS,
2005, p. 7; dressing / Salize, compulsory care and compulsory treatment
of mentally ill, 2004, p. 30; Hell, in: Rössler / Hoff, psychiatry between
autonomy and coercion, 2005, p. 89 <94>; see in the event of enforcement
by means of direct force such as the descriptions Schaub at-Roman, F.
compulsion in Psychiatry, 1997, p. 24; Termeer in: Kebbel / Pörksen violence
and forced in-patient Psychiatry, 1998, p. 82 f.). The individual shall
be compelled to submit to an action that meets the crime of assault (see
RGSt 25, 375 <377 f.>, 38, 34 <34 f.>; BGHSt 11, 111 <112>;
BGH, decision of 20 December 2007 - 1 StR 576/07 - NStZ 2008, p. 278 <279>)
and therefore usually only with the - in criminal law justifying - the
consent of the parties is permitted. The compulsory treatment lying in
a medical intervention does not affect only the physical integrity of
the data subject as such, but in a particularly intense way, and that
of Article 2 paragraph 2 sentence 1 GG with protected right to self-determination
in this regard. One of the other people targeted operations carried out
in the physical integrity will be experienced as more threatening, the
more the person feels helpless and powerless in the events. In addition,
the procedure is common in the housing people who feel that because of
their mental constitution of the horror of forced invasion of her bodily
integrity and the setting aside of their will and the fear of particular
intensity. For the basic legal assessment of the seriousness of breaching
even the subjective feeling of importance (cf. BVerfGE 89, 315 <324>)
is. The administration of antipsychotic drugs against the natural desire
of the patient is finally - whether by way of judicial assessment of the
procedure in § 6 paragraph 1 sentence 1 sentence 1 MVollzG Rh.-Pf. couched
conditions of the consent of need for its performance in the care legal
context, the conditions of the authorization or approval under § 1904
para 1 sentence 1 BGB would - a very serious infringement of fundamental
rights dar. also with regard to the effects of these drugs is this already
in terms of serious to the not exclude possibility irreversible and life-threatening
side effects and the sometimes considerable variation in the results of
studies on the frequency of occurrence of significant side effects. Psychotropic
medications are also addressed to the change in mental processes. Their
administration against the natural will of the parties affected, therefore,
irrespective of whether they will be enforced with physical force, especially
in the core of the personality.
II
45
1. Despite the severity of the interference, which is in the compulsory
treatment of a housed, it is not in principle the legislature refused
to approve such procedures. This also applies to a treatment that is used
to achieve the performance goal (Prison Act § 136, § 1 paragraph 2 MVollzG
Rh.-Pf.), that seeks to make the accommodated dismissal capable.
46
a) A justifiable concern is however not the extent of protection offered
by third parties against the crimes in question, which could commit the
Housed in the event of his dismissal. This protection can be ensured that
the sub-Matched untreated remain in indefinite detention. He therefore
does not justify forced treatment compared to a housed, because the latter's
refusal to seek treatment is not the safety of the public from serious
crime, but his release prejudicial perspective.
47
b) Justification of the interference but the constitutionally protected
liberty interest of the accommodated his own (Article 2 paragraph 2 sentence
2 GG appropriate), unless the items brought to the perception that interest
due to illness-related disability is not in understanding the situation.
48
aa) The freedom rights include the right to exercise the freedom of a
use which - contrary to the best interests of the basic entity - at least
in the eyes of others. Therefore, it is for the individual to decide whether
to undergo therapeutic or other action will, for the sole purpose of his
"improvement" (cf. BVerfGE 22, 180 <219 f.>). The constitutionally
protected freedom also includes the "freedom of illness" and thus the
right to cure targeting interventions to refuse, even though they are
according to the state of medical knowledge is urgently required (see
BVerfGE 58, 208 <226>, 30, 47<53>, 22, 180 <219>).
49
bb) The weight possessed by the limited basic right in the balance with
those basic legal issues that should be respected by the interference
in this matter, but can not be dissociated from the real possibilities
of the basic entity determined to be free of will close (see BVerfGE 58
, 208 <225>). The legislature is therefore entitled under strict
conditions to allow treatment measures against the natural will of the
basic entity of exception, when this insight to the severity of his illness
and the need for treatment measures or to act in accordance with such
understanding of illness is not capable. The court held that under this
assumption, the serious infringement of fundamental rights, which is in
the detention, may be justified to protect the individuals themselves,
and approved by state housing law for such a case the possibility provided
for welfare imperious accommodation for the purpose of treatment (see
BVerfGE 58 , 208 <224 et seq; Constitutional Court, Order of the 3rd
Chamber of the Second Senate of 23 March 1998 - 2 BvR 2270/96, NJW 1998,
p. 1774 <1775>).
50
For the intervention, which is in the medical treatment of an accommodated
at the natural will, nothing is fundamentally different. Accordingly,
considers the prevailing view in case law and literature measures of forced
treatment accommodated - even those that are directed to their release
capability - not for general inadmissible (see BGHZ 145, 297 <305>,
KG, decision of 29 August 2007 - 2 Was 66/07 Vollz - R & P 2008 p.,
39 <40 et seq; BayObLG, decision of 14 October 2002 - 3Z BR 172/02
- R & P 2004, p. 33; LG Heidelberg, decision of 20 April 2004 - juris
- 7 StVK 79/04; Bern man, in:; f. Heide, Medical compulsory treatment,
2001, p. 235; Blue / Kammeier offenders in psychiatry, 1984, p. 159 v.
Storch, supra, p. 39 ff <42>; Volckart / Green Tree, forensic psychiatry,
7th edition, 2009, paras 362, 365;. Rüping, JZ 1982, p. 744 <746 f.>;
Rinke, NStZ 1988, p. 10 <12> , Marschner, R & P 1990, p. 66
<70>; aA Wagner, in:. Kammeier, supra, para D 150; fool / Saschenbrecker,
FamRZ 2006, p. 1079 <1083>).
51
Is a sub-Matched illness not to insight into the disease capable account
of which his accommodation is necessary, or it may due to illness, the
shared only with a treatment chance of cure is not recognized or not take,
so the state is not bound by a fundamental priority in disease-related
expression of the will him to leave the fate of permanent detention. An
intervention that aims to restore the actual conditions of free self-determination
of accommodated clients can be allowed in these circumstances (see BVerfGE
58, 208 <225>, see also BVerwGE 82, 45 <49>; Murswiek, in:
Sachs, GG, 5th edition 2009, Art 2 para 209; Wiedemann, in:. Umbach /
Clemens, GG, 2002, article 2, paragraph 2, paragraph 329 m. footnote 167;
Wagner, suicide and suicide prevention, 1975. ff Seewald, The Constitutional
Right to Health, 1981, p. 214;;, p. 134 Michale, right and duty to force-fed
food refusal in prisons, 1983, p. 163 ff; Robbers, security as a human
right, 1987, p. 220 ff <221 f.>; Hill Gruber, The protection of
man against himself, 1992, p. 121 f.; Dröge, The emergency care, 1997,
p. 198 f., 207 f.; Heide, supra, p. 217 ff; von Storch, supra, p. 39 ff
<42>, with further references). Disease-related disability prevents
access to those affected to exercise his fundamental rights concerns in
so far as concerns the recovery of freedom.Because the person is in need
of help so far (see BVerfGE 58, 208 <225>), the state may - in accordance
with the principle of proportionality - to intervene in those fundamental
rights, the overweight, the person concerned solely due to illness.
52
cc) The UN Disability Convention (BRK), which in Germany has the force
of law (law of the United Nations Convention of 13 December 2006 on the
rights of people with disabilities and to the Optional Protocol of 13
December 2006 United Nations Convention on the Rights of Persons with
Disabilities of 21 December 2008, Federal Law Gazette II p. 1419) and
can be used as a design aid for determining the content and scope of fundamental
rights (see BVerfGE 111, 307 <317 f.>), put no other result suggests
(cf. King, BtPrax 2009, p. 105 <107 f.>; Marschner, R & P 2009,
p. 135 <136 f.>; aA Kaleck / Hilbrans / Scharmer, ratification of
the UN Disability Convention of 30 March 2007 and impact on the laws for
so-called mentally ill on the example of the compulsory care and compulsory
treatment under the PsychKG Berlin, Expert Opinion, p. 29 ff, 40).
53
Persons with disabilities who are subject to the guarantees of the Convention,
and mentally are sick, if the impairment is long term and of such a nature
that it can prevent the patient to the full, effective and equal participation
in society (Article 1 Section 2 BRK, see Olzen, The effect of the UN Disability
Convention on the accommodation and compulsory treatment under § 1906
Civil Code and § § 10 ff PsychKG NRW, opinions, 2009, p. 2). The provisions
of the Convention which are to secure and strengthen the autonomy of disabled
people-oriented - and in particular Article 12, paragraph 2 BRK, with
the States Parties recognize that persons with disabilities enjoy equal
rights in all spheres of life with other legal capacity, and type . 12
paragraph 4 sentence 2 BRK, which requires States Parties on measures
relating to respect the exercise of legal capacity respect the rights,
will and preferences of the person - but not against the ban will natural-looking
measures follow on from a disease caused limited ability to self-determination.This
is clearly among other things, the regulatory context of Article 12 paragraph
4 BRK, which refers particularly to measures that restrict the parties
in the exercise of its legal capacity. Such measures are not generally
prohibited the convention, but would limit their eligibility, including
by Article 12, paragraph 4 BRK States parties to appropriate safeguards
against conflicts of interest, abuse and neglect and to ensure the proportionality
required.
54
2. The constitutional permissibility of a medical coercive treatment in
order to make the affected dismissal capable, has strictly its disease-related
inability to conduct effective insight - in short, disease-related access
failure - a condition (see Bern man, in: Blue / Kammeier, supra, p. 142
<159 >; Heide, supra, p. 236; Tietze, op cit, p. 120, see also Lesting,
in:. Marschner / Volckart / Lesting, supra, para B 209; Rinke, NStZ 1988,
p. 10 <11, 13 >; from psychiatric and medical-ethical Garland, BtPrax
2009, p. 55 <57 f.>; Maio, in: Rössler / Hoff, supra, p. 145 <>
149 ff with further references, see also Principles for the Protection
of PersonsIllnesses and the Improvement of Mental Health Care, the General
Assembly resolution 46/119 of the United Nations on 17 December 1991,
<im Folgenden: UN-Grundsätze for the protection of mentally Kranken>,
Principle 11, paragraphs 6 and following, not the possible importance
of legally binding resolutions of international organizations for the
basic interpretation of the law BVerfGE 116, 69 <90>).
55
If under this assumption, a power of the state of exception, the individual
"to take from itself in protection" (cf. BVerfGE 58, 208 <224>;
Constitutional Court, Order of the 3rd Chamber of the Second Senate of
23 March 1998 - 2 BvR2270/96 -, NJW 1998, p. 1774 <1775>) to recognize
is opened, this is not a "reason sovereignty" of government institutions
on the subjects of fundamental rights such that his will should be solely
set aside because it is different from the average preferences or from
the Exterior view seems unreasonable (see BVerfGE 58, 208 <226 f.>;
Baumann, housing law, 1966, p. 25; Marschner, in: Marschner / Volckart
/ Lesting, supra, para 41; Wagner, in:. Kammeier, supra, following regarding
the danger of a generic welfare paternalism and Fink, self-determination
and self-killing, 1992, p. 188;;. Rn D 152 Hermes, the basic right to
protection of life and health, 1987, p. 228 ff; Neumann, KritV 1993, S
. 276 <286>; Schwabe, JZ 1998, p. 66 <70>). A eingriffslegitimierende
inability to self-determination should therefore not have to be inferred
that the person must be accepted from a medical point of view required
treatment with risks and side effects on the prevailing feeling in regard
to the expectable benefits will not tolerate. Required a disease-related
disability or inability to access einsichtsgemäßem behavior (cf. BVerfGE
58, 208 <225>) is.
56
3. The principle of proportionality arise on the need for disease-related
disability access, further requirements. Given the seriousness of the
surgery is directed to achieving the objective enforcement forced medical
treatment only permitted under strict conditions.
57
a) aa) a material point follows from the principle of proportionality,
first, that measures of compulsory treatment should only be used if, in
regard to the treatment goal that justifies their use, promising (see
BVerfGE 91, 1 <29>;Cologne Higher Regional Court, decision of 29
June 2006-16 Wx 141/06 - NJW-RR 2006, p. 1664 <1665>; from a psychiatric
point of view instead of many Finz / Haug / Beck / Lüthy, using forced
against their will in psychiatric medication daily. , 1993, p. 157). This
also limits the permissible duration of their deployment. , To achieve
the implementation objectives begun forced medication may, if it does
not lead to a significant improvement in the healing and release prospects,
for example, maintained not only because it facilitates the accommodation
facility patient care and reduces the necessary effort.
58
bb) coercive measures may also be used as a last resort, when milder measures
have any effect (cf. OLG Celle, decision of 10 July 2007 - 17 W 72/07,
etc. -, NJW-RR 2008, p. 230 <231> , Heath, supra, p. 204; Hond,
the compulsory treatment in the care law, 2008, p. 144 ff <147>;
for fixations OLG Naumburg, Judgement of 12 January 2010 - 1 U 77/09 -
BTPrax 2010, S . 127 <129>; from a psychiatric point of view SAMS,
coercive measures in medicine Medical-Ethical Guidelines, supra, p. 8;
Hell, in:. Rössler / Hoff, supra, p. 89 <94>; Garland, BtPrax 2009,
S . 55 <58>). Compulsory treatment for a drug to achieve the target
completion this means, first, that a less invasive treatment must be hopeless.
Second, the forced treatment, if the person is talk capable of serious,
be preceded with the necessary time and without exercising undue pressure
(see BI2.) Attempt made to achieve its established trust agreement (cf.
OLG Celle, supra, p. 231, Wagner, in:.. Kammeier, supra, para D 147; Volckart
/ Green Tree, supra, para 373; Hartmann, scope and limits of compulsory
medical treatment in psychiatric hospital treatment, 1997, p. 174).This
is true because of the nature of compulsory treatment grundrechtseingreifende
not able to understand and give consent of accommodated clients depends
(so BI2.) Regardless of whether the consent is housed or not.
59
Even when persons unable to consent, therefore medical education on the
proposed measure is unnecessary from the start. As a basis for justifying
consent, the elucidation of a persons unable to consent are not, at this
point it is against him so far ignored (see Bern man, in: Blue / Kammeier,
supra, p. 142 <160>; Rinke, NStZ 1988, p. 10 <11>).Regardless
of the question, whether to gain by informing an effective consent, but
must also consent capacity over whether and how a treatment he is subjected,
are not generally kept in the dark (see Volckart / Green Tree, supra,
para. 374, with further references; Heide, supra, p. 236, with restrictions
on expert opinion confirmed exceptions Hond, supra, p. 144 ff <147>).
An understanding of the capabilities of the affected information corresponding
to the intended treatment and their effects is therefore unnecessary not
(see also UN Principles for the Protection of the mentally ill, principle
11, paragraph 9).
60
The principle that the engagement should not go beyond what is necessary,
also has the choice of specific measures to be applied in the manner and
time - to determine - including selection and dosage use medicines and
associated controls.
61
cc) over the requirements of the appropriate and necessary addition is
a prerequisite for the ability to justify involuntary treatment, that
it is for the person not related to charges which are disproportionate
to the expectable benefits. The adequacy is met if, after considering
the respective probabilities, the expected benefit outweighs the potential
harm of treatment of non-treatment. With regard to the existing forecast
uncertainties and other methodological difficulties of the necessary comparisons,
it meets the basic legal requirements, if in the medical community a clearly
detectable outweigh the benefits is required (see, SAMS, supra, p. 7;
Garland, BtPrax 2009, p. 55 <57 f.>; see also Maio, in: Rössler
/ Hoff, supra, p. 145 <161>). Because it is missing from a wing
to the law enforcement goal forced treatment on a regular basis, if the
treatment is associated with more than a negligible residual risk of irreversible
damage to health (see Garland, BtPrax 2009, p. 55 <58>; for the
incompatibility of irreversible engagement with the UNDisability Convention
Aichele / von Bernstorff, BTPrax 2010, p. 199 <203>; Böhm, BtPrax
2009, p. 218 <220>).
62
b) The fundamental rights to requirements arising in relation to the procedures
of the authorities and courts (see BVerfGE 52, 380 <389 f.>, 101,
106 <122>, 124, 43 <70>; established case law). The closed
in a facility housed the involuntary treatment should be subjected to
is dependent on such backups in a particularly high degree.
63
aa) In any case during scheduled treatments, and therefore even with a
treatment that is meant to achieve the target completion is when the measure
despite the failure of the necessary informed consent advertisements (B.II.3.a)
bb)) is to be carried out, one notice is required, which gives the people
the opportunity to seek timely redress. This follows from Article 2 paragraph
2 sentence 1 Basic Law in conjunction with the guarantee of effective
legal protection (Article 19 paragraph 4 of the Constitution), the precursory
unfolds on the administrative procedure (see BVerfGE 61, 82 <110>,
69, 1 < 49>, 116, 135 <156>, 118, 168 <207>). Of accommodated
must have the opportunity to bring before ensuring final judicial decision
(see Volckart / Green Tree, supra, para 373;. See also Article 13, 14
paragraph 2 BRK).This applies even in cases where there is the consent
of a legal representative. Here the extent of constitutional motion (see
BVerfGE 10, 302 <306>) method capable of at least concerned, if
necessary with the help of a guardian ad litem, may in time take action
against the granting of consent (see, accordingly, § § 275, 276 FamFG).
64
The notice must be defined in a way that ensures the proportionality of
the interference and directed to this judicial review possible (see, in
the legal context, care BGHZ 166, 141 <153>; LG Kleve, Decision
of 12 March 2009 - 4 T67/09 - juris; LG Saarbrücken, Decision of 23 March
2009 - 5 T 100/09 - juris). To comply with the proportionality of the
measure is, however, that the flexibility affects the proper medical response
to individual differences that exist following the opinion of the German
Society for Psychiatry, Psychotherapy and Neurology in the responsiveness
to the favorable and adverse drug effects, is not unduly is. The requirement
specification is not precluded that the planning and the decision on the
details of a medication primarily for the medical assessment. This is
true, does not change the need for the effectiveness of legal protection
assurance process design. If medical measures are taken by force, the
resulting serious infringement of fundamental rights of the constitutionally
guaranteed judicial review - including the judicial review on the principle
of proportionality, which may depend on the detailed design of the operation
- not so withdrawn because the appropriateness of the action only on the
basis medical expertise can be assessed. As far as the judicial review
only on the basis of medical expertise, it belongs to from the fundamental
rights of the parties following fact-finding duty of the courts (see General
BVerfGE 101, 275 <294 f.>; BVerfGK 9, 390 <395>, 9, 460 <463
f.>) to make use of such expertise (see, in case they decide on a custodial
accommodation BVerfGE 58, 208 <226>).
65
In a forced treatment with antipsychotic drugs must be without prejudice
to the obligation to terminate within the scheduled period at any time
if the treatment course of which they found not to be more proportionate,
relating concrete, inter alia, the proposed duration of the action. This
is the principle of proportionality requires not just to ensure that the
probability of certain side effects depends on the duration of administration
(so A.IV.6.) But also to secure recurring exhaustive consideration of
the measure (see, for the need of any time limitation subpoena SAMS, supra,
p. 17; Guidelines for quality assessment in psychiatric clinics, 1994-1996
Project for the Ministry of Health, 1996, p. 198).
66
bb) In the interests of proportionality is essential, the arrangement
and supervision of a medical coercive treatment by a physician. Only this
is also the stipulations of international law, international standards
on human rights issues and the professional standards of psychiatry (see
ECHR, Jalloh v. Germany, Judgement of 11 July 2006 - 54810/00 -, para
73, UN Principles on the. protection of the mentally ill, principle 10,
paragraph 2; SAMS, supra, p. 8, Recommendation No. R (98) 7 of the Committee
of Ministers on the ethical and organizational aspects of health care
in prisons, appendix, No. 21, in: Federal Ministry of Justice and Others
<Hrsg.>, Council of Europe recommendations to imprisonment, 2004,
p. 163 <168>; guidelines for quality assessment in psychiatric clinics,
supra, p. 207; Anderl-Dolin ua <working group of senior consultants
and senior nursing staff of the psychiatric clinics in the state of Rhineland-Palatinate,
guidelines for the management of coercive measures, psych nursing, 2005,
p. 100 <102>).
67
cc) as a precursory effect of fundamental rights guaranteed judicial protection
(so B.II.3.b) aa)) is therefore necessary, against the will of accommodated
clients taken treatment measures, including its coercive nature, the enforcement
manner, on the determinants and impact monitoring, (see document to constitutionally
justified documentation requirements in other contexts, BVerfGE 65, 1
<70>, 103, 142 <160>; BVerfGK 9, 231 <238>, 12, 374
<376 f.>; Federal Constitutional Court, decisions of the 2nd Chamberthe
Second Senate of 19 January 2007 - 2 BvR 1206/04 - NVwZ 2007, p. 1044,
and on 28 July 2008 - 2 BvR 784/08 - NJW 2003, p. 3053 <3054>; general
BVerfGE 118, 168 <207>, the need for the documentation of psychiatric
coercive measures, see the UN Principles for the Protection of the mentally
ill, principle 10, paragraph 2, and principle 11, paragraph 10, section
11, clause 3, guide for quality assessment in psychiatric clinics, ibid,
p. 58, 205; Anderl-Dolin <Arbeitskreis including the chief medical
officers and senior nurses Rheinland-Pfalz> the psychiatric clinics
of the land, supra, p. 100 <102>, due to the detailing SAMS, supra,
p. 18). The obligation to provide advance notice to the measure, the effective
legal protection ex ante, a documentary making to ensure the effectiveness
of legal protection that seeks the person until later, even in such legal
liability matters, not expendable. Regardless of the effective guarantee
legal protection, the documentation may also be offered to ensure the
proportionality of the interference. Only on that basis remains professional
manner and proportionate action in the typical condition for hospitals
ensures that change the players responsible. A fortiori the same holds
true for treatments that extend over a longer period and still maintain
the principle of proportionality on the condition that the impact over
time and observed from the results of the due consequences of this observation
can be drawn. In addition, finally, that the documentation is also an
indispensable means of systematic improvement-oriented quality control
and evaluation. This is where it comes to compulsory treatment to achieve
the performance target, offered both as an element of forward-looking
protection of directly affected land rights and with regard to the constitutionally
prescribed rehabilitation goal (see BVerfGE 116, 69 <91>; to deficits
in the former practice Ketelsen / Zechert / Klimitz / Rauwald, PsychiatPrax
2001, 28: p. 69 <70>; Steinert, in: Kebbel / Pörksen, violence and
coercion in inpatient psychiatry, Cologne 1998, p. 135 <135, 137>).
68
dd) of Article 2 paragraph 2 GG also calls for special procedural safeguards
against the specific situational basic legal risks that arise if the arrangement
of a compulsory treatment outside of acute emergencies only decide the
particular accommodation (see BVerfGE 52, 391 <407 f. >, 53, 30
60 ff>, 113, 29 <57 f.>, 124, 43 <70>; established case
law).
69
The far-reaching powers of the accommodation facility in connection with
its unity and the move by all parties limited options for support and
assistance from outside is accommodated in a situation of extraordinary
dependence in which he needs, especially for serious intervention, special
protection against the fact that his constitutionally protected interests
as a result of self-interest of the institution and its employees - especially
in case of claims which may in dealing with often difficult patients easily
occur - will be assessed adequately in non-task equitable staffing, or
by operating routines (see, accordingly to the need for special safeguards
against Conflicts of interest and improper influence of Article 12 paragraph
4 sentence 2 BRK, especially to medical procedures see also United Nations
Principles for the Protection of the mentally ill and the improvement
of mental health services, principle 11, paragraph 6 b and Section 13).
70
>From this it can not only give specific constitutional requirements
for any court proceedings (see, for the judicial proceedings concerning
the continuation of detention BVerfGE 70, 297 <310 f.>; Constitutional
Court, Order of the 3rd Chamber of the Second Senate of 26 March 2009
- 2 BvR 2543/08 - NStZ-RR 2010, p. 122). Rather must be assured that the
procedure preceding an independent audit of the accommodation facility.
71
In parts of the literature on coercive treatment, the intervention considered
a supervisor as constitutionally required or assumed to be a childcare
legal solution is in any event be granted because of constitutional precedence
over the replacement of the decision of persons unable to consent by a
state authority (see Tietze, op cit, p. 66 ff; Popp, op cit, p. 75 f.;
Lipp, freedom and welfare, 2000, p. 55 ff, 134 f., idem, BtPrax 2005,
p. 6 <7>; Rinke, NStZ 1988, S . 10 <14>; aA Volckart / Green
Tree, supra, para 369;. Heidi, supra, p. 229; Stalinski, BtPrax 2000,
p. 59 ff <61 f.>; Hoffmann, R & P 2005, p. 52 ff .). The indefinite
detention law can ensure the involvement of a supervisor by appropriately
extensive consent requirements of such a nature that in the absence of
consent of the individuals themselves replaced the consent of a supervisor
is necessary and sufficient. A constitutional necessity to protect the
rights of the parties currently in this manner is not. For those concerned,
the procedure that is compulsory treatment in a medical, not by less onerous
that even a supervisor has approved it. The key objective of protection
that is in the external intervention of a third party can not be achieved
solely in this way, but also by other means. There are no serious reasons,
you can account of which a supervisor solution constitutionally would
be preferable for example, against a judge of title, as it provides the
legal elsewhere for far less serious interference (§ 81a para 2 Code of
Criminal Procedure), or to the involvement of other neutral body (ombudsman
, other authority) that could also have a responsibility to ensure that
use of preventive measures does not omitted due to impairment of the person
concerned.Although for the person concerned
a mitigation of foreign domination are that must be taken in the selection
of the supervisor to his wishes and to existing bonds consideration (it
§ 1897 paragraph 4, 5 BGB). The realization of this benefit comes, however,
especially in the forensic housed, often practical obstacles, because
no suitable persons from the personal environment are available. In addition,
other solutions with significant other benefits to be connected or linked
to. This concerns about the terms of the involvement of external expertise
and the need for systematic evaluation (so B.II.3.b) cc)). The design
of the way, produced in a will that, before implementation of a compulsory
treatment order to achieve the performance objective one - not in mere
desk routine exhaustive - held testing in secured independence from the
accommodation facility is then the responsibility of the competent legislator.
72
4. a) The emergency treatment of a housed, like any other basic legal
procedure, permitted only on the basis of a law that defines the conditions
for the admissibility of the procedure. This applies not only to the material,
but also for the formal prerequisites for intervention. Legal rules require
in a procedural no different in material respects to the attainment of
the basic rights essential questions (see BVerfGE 57, 295 <320 f.>,
73, 280 <294, 296>, 82, 209 224 f., 227 >, 120, 378 <429>).
73
The conditions for the admissibility of the procedure must be sufficiently
clear rules and precise (see, for the prison system as broadly defined
BVerfGE 116, 69 <80>, with further references). The legislature
is required to take its provisions so determined, as is possible for the
type of to be ordered life situations with regard to the legislative purpose
(see BVerfGE 49, 168 <181>, 59, 104 <114>, 78, 205 < 212>,
103, 332 <384>). The necessary determination is not missing simply
because the standard has to interpretation (see BVerfGE 45, 400 <420>,
117, 71 <111>; established case law). The parties must recognize,
however, the law and can adjust his conduct accordingly (see BVerfGE 103,
332 <384>, 113, 348 <375>, with further references), and find
the law implementation and management needs for their behavior-controlling
and limiting action standards (seeBVerfGE 110, 33 <54>, 113, 348
<375>). The necessary visibility of the content standard is the
clarity (cf. BVerfGE 78, 214 <226>, 115, 166 <190>, 119, 331
<366>; established case law) and, as its part, the consistency (cf.
BVerfGE 98, 106 <118 f.>, 108, 169 <181, 183>, 119, 331 <366>;
established case law) of the standard. The requirements for the degree
of clarity and certainty are more stringent, the more intense the fundamental
right of intervention is that provided a standard (see BVerfGE 59, 104
<114>, 75, 329 <342>, 86, 288 <311>, 110, 33 <55>,
117, 71 <111>). For the detailed requirements can, not least in
the extent to provisos can be derived from the Constitution, explicit
and concrete form setting require the simple law, whether the particular
group of standards users and standards concerned be significant (see BVerfGE
110, 33 <64>, 123, 39 <81>).
III.
74
By these standards is § 6 paragraph 1 sentence 2 clause 1 MVollzG Rh.-Pf.
no adequate legal basis for compulsory treatment dar. The provision does
not meet the requirements that have to provide clarity and certainty of
the legal basis for a very serious infringement of fundamental rights
(the so BI3.). For either currently or potentially affected sub-Matched
nor for the application of standards in the first place appointed decision-makers
of the accommodation facility, on the one are clearly in need of legal
certainty-promoting engagement basis in their own interest, the essential
conditions for compulsory treatment to achieve the performance objective
of the law identified.
75
1. It left open whether it can lack the necessary clarity of the legal
basis therefore already missing because of the wording and scheme of the
provision is not sufficiently clear, the relationship between § 6 paragraph
1 sentence 2 clause 1 MVollzG Rh.-Pf., according can be carried out "the
rest" compulsory treatment to achieve the performance goal without the
consent of the patient to the provisions of the preceding sentence 1 is
(for different and sometimes turn ambiguous interpretations of the provision
see a hand Hartmann, scope and limits of medical coercive treatment in
psychiatric hospital treatment, 1997 , p. 219; the other hand, Wagner,
in:.. Kammeier, supra, para D 167; again each other well Volckart / Green
Tree, supra, para 390; Heide, supra, p. 85, 87, without interpretation
by noting thatprovision is unclear, Marschner, R & P 1988, p. 19 <21>).
In particular, it does not matter whether the extent the legislative history
is clear Clarifying (see Landtag Rheinland-Pfalz, Committee on Social
Affairs and Health, Minutes of the 26th meeting of 25 April 1986, p. 1;
Landtag Rheinland-Pfalz, protocol the 76th meeting of 11 September 1986,
p. 4602 <4606>), and whether it is for an intervention of this kind
in question could be sufficient if facts for the understanding of the
wording and structure enabling provision is ambiguous only in the legislative
history could win.
76
Regardless of the question of the relationship between § 6 paragraph 1
sentence 2 clause 1 MVollzG Rh.-Pf. to the other provisions of paragraph
1 is - that with every imaginable, including in the contested decision,
namely, interpretation of this relationship - (. This B.II.2, 3) lacks
any event in the regulation of essential substantive and procedural requirements
for the compulsory treatment to achieve the objective law enforcement.
77
a) It is missing in a particular statutory scheme of compulsory treatment
in order to achieve the objective enforcement essential requirement due
to illness lack of discernment (B.II.2.). § 6 paragraph 4 MVollzG Rh.-Pf.,
which shall prevail in the absence of capacity to understand the consent
of the legal representative assumes that, under paragraph 1 of the provision,
consent is required at all. This, however, in treatments to achieve the
objective enforcement just not all - depending on the interpretation of
the provisions of § 6 paragraph 1 of MVollzG Rh.-Pf. and their relationship,
even in a very limited extent - the case. § 6 section 3 MVollzG Rh.-Pf.,
after which the device for forced implementation of measures pursuant
to paragraphs 1 and 2 is not required as long as may be expected from
a free determination of the will of the patients placed binds only the
duty, but also shall have measures of coercive treatment to the understanding
of accommodated clients. With the provisions of § 6 para 5 sentence 1
MVollzG Rh.-Pf., according to which action must be reasonable for the
patients placed and may not be disproportionate to the anticipated success,
are not the material conditions of admissibility of the procedure sufficiently
specified.
78
If the law contains the necessary respect for the principle of proportionality
concern for the consent of the person concerned a concretization scheme,
this also interferes too short, by providing an effort to agree on the
condition of far-reaching discernment (§ 5 para 2 MVollzG Rh -Pf.), while
the principle of proportionality, the attempt to reach an amicable solution
is offered more widely (B.II.3.a) bb)).
79
b) In addition, there is no further significant legislation to guarantee
basic rights necessary procedural prerequisites for intervention. Provided,
however, that action pursuant to § 6 paragraph 1 MVollzG Rh.-Pf. must
be carried out only by order and under the guidance of a physician (§
6 paragraph 5, sentence 2 MVollzG Rh.-Pf.). However, the offered insufficient
notice (B.II.3.b) aa)) regulated. Under the general rules on the application
of direct force may look to § 22 para 4 sentence 1 in conjunction with
paragraph 3 MVollzG Rh.-Pf. without further before determining the minimum
content, a prior notice of the action in the event that they is by physical
coercion ("physical violence and their resources") enforced. § 22 para
1 MVollzG Rh.-Pf. nevertheless permits the application of direct force
only in cases of danger to safety and order. How important then the provisions
of § 22 MVollzG Rh.-Pf. of importance for medical treatments to achieve
the compulsory enforcement objective can be left open here. In any case,
would be a mechanism which imposes a penalty only for the use of physical
coercion, the cases for which the notice requirement is constitutionally
not adequately covered. For emergency treatment for the purposes of medical
treatment against the will of the person concerned is in - and so can
be a very serious infringement of his fundamental rights - is independent
from whether a violent enforcement of the measure is required or the person
concerned, such as because he recognizes the futility of physical resistance,
despite persistent rejection adds to the action and thus the use of physical
force dispensable (BI1., 2.) Next there is a lack of standards for documentation
of surgery (B.II.3.b) cc)) and in the view of the special situation of
accommodated necessary procedural protections to ensure that, before implementation
of a compulsory treatment order to achieve the goal, a performance audit
in secured independence from the accommodation facility takes place (B.II.3.b)
cc)). The mere legal obligation to report measures implemented to the
Authority, one of these to be determined and the doctor - if any - legal
representative (§ 6 para 6 MVollzG Rh.-Pf.) is not sufficient in that
regard.
80
2. The shortcomings of the statutory scheme can not be remedied through
constitutional interpretation. The constitutional deficiencies can be
remedied only by legislation.
C.
81
The identified constitutional violations relating to § 6 paragraph 1 sentence
2 MVollzG Rh.-Pf. total, since the second half of the first sentence of
the provision not independent, self-importance (cf. BVerfGE 8, 274 <301>,
65, 325 <358>, 111, 226 <273>; established case law).Therefore,
§ 6 paragraph 1 sentence 2 MVollzG Rh.-Pf. Total to be annulled. The conditions
for a mere declaration of incompatibility with a temporary continuation
of up to a new regulation by the legislature are not available. The necessary
outweigh the disadvantages of the immediate repeal of the norm against
the disadvantages that would be associated with the provisional continued
validity (see BVerfGE 61, 319 <356>, 83, 130 <154>, 85, 386
<401>, 87, 153 <177 f.>, 100, 313 <402>), given the
gravity of the violations of basic rights to which § 6 paragraph 1 sentence
2 clause 1 MVollzG Rh.-Pf. to determine authorized not.
82
The impugned court decisions that hurt the absence of sufficient legal
basis for the announced intervention the complainant's fundamental right
under Article 2 paragraph 2 sentence 1 Basic Law are set aside and the
matter is in accordance with § 95 para 2 Federal Constitutional Court
in the District Court of Landau in der Pfalz . back
83
The arrangement of the reimbursement of expenses follows from § 34 para
2 and 3 Federal Constitutional Court Act.
Voßkuhle Di Fabio Mellinghoff
Lübbe-Wolff Gerhardt Landau
Hermann Huber
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