Commentary on the successful complaint at the supreme court in Germany

For our international friends: The decision concerns a person with our special psychiatric advance directive PatVerfue https://www.patverfue.de/en. But what could be learned elsewhere is that in a psychiatric advance directive it should always be insisted on the denial of any belief in the existence of a „mental illness“. That was the key point for this success at the supreme court. The CRPD, which is ratified in Germany, was disregarded and not mentioned at all in this decision.

That is a confirmation of our experience in 2011, namely that the CRPD is of no help to our cause, as the ratification of the CRPD makes it’s rules only as an ordinary law (read here, 4th paragraph). But to make progress we need a reasoning which is based on the rules of the German constitution which is only superior to any ordinary law.

The latest decision by the Federal Constitutional Court (FCC) on the restriction of coercive psychiatry No. 2 BvR 1866/17 and No. 2 BvR 1314/18¹ was even reported on in the Tagesschau (the main German national public TV news) : https://www.tagesschau.de/inland/verfassungsgericht-patientenrechte-101.html.
What is special and important about this decision for us (Werner-Fuss-Zentrum and friends)?

First of all, we would like to emphasise that the FCC made the decision on 8.6.2021 that our special psychiatric advance directive PatVerfue^® applies and must be respected even in the case of a non compos mentis per se dangerous person, the long-term prisoners in a forensic facility. With this, the FCC has either bid farewell to forensics (which would be super, but is extremely unlikely), or as lawyer Dr. David Schneider-Addae-Mensah has put it, granted the PatVerfue the status of „jus cogens“ (peremptory norm).

Explanation:
§ 63 of the German Criminal Code (StGB) sentences an offender despite being incapable of committing a crime, nevertheless confines him or her in a forensic facility for an indefinite period of time. This draconian punishment is supposed to be justified against all the usual norms of the penal system (prospect of early release, rehabilitation, etc.), by the fact that psychiatrists have judged a person to be „dangerous“ per se. Their inclination to commit crimes is uncontrolled, actually always uncontrollable. They should therefore be promoted to the status of dangerous „insane“ per se and locked up until the contrary is proven (the logically unprovable harmlessness). Subjected to the infinite wisdom of psychiatric science, there could only be hope for „healing“ if this subjugation was total and the insight into the illness of the „mentally ill“ appeared credible to those in power in forensics. If it is not, the guild can always nullify any prospect of release with the diagnosis of „feigned insight into illness“ or „good facade“ (a simulation of normality that can be declared insane). It is therefore a typical Catch-22 situation and incarceration is regularly beyond any proportionality to the offence and is also against the UN-CRPD ratified in Germany, which has actually become law. The permanent dangerousness of a mentally „ill“ person, as diagnosed by a doctor and certified by a state judge, is the legal or sufficient justification for this special sacrifice (that is what lawyers actually call it) of prisoners in forensics.

Any psychiatric diagnosis and any attempt for psychiatric treatment without the explicit consent of the person concerned is forbidden by the PatVerfue, the advance directive that was at issue in this case. The possibility of prohibiting diagnosis and treatment is in law § 1901a of the German civil code (a federal law on medical advance directives). In our view, any law on coercive psychiatric treatment is illegal because it violates the prohibition of torture which is recognised as jus cogens. The complaint against the coercive treatment of a prisoner in forensic psychiatry was disapproved by the lower courts but had been accepted and not yet decided in 2016 by the FCC. We had then sent the FCC the proof that a law forcing the toleration of forced treatment is illegal in itself, and published it here: https://www.irrenoffensive.de/proof.htm. The proof is also the logically compelling derivation of why the FCC’s 2011 decision was wrong, in which the FCC claimed that coercive treatment could be ruled by law if the capacity to consent was lacking „due to illness“: such a law violates jus cogens, in this case the prohibition of torture. The FCC had to take this evidence into account recognising that it was correct. However, in the evidence a distinction is made between

A) people who think mental illness is at least likely, believe in it or are convinced of its existence.
B) people, who neither consider mental illness as likely, nor believe in it and are not convinced of its existence.

Only people from Group A) can therefore be capable or incapable of consent – for whatever reason.

People from Group B) can – in a conscious state – under no circumstances agree to treatment of an illness of which they are convinced is non-existent. Consent would be a conscious lie for them. Thus, based on this logic, they are in principle, i.e. always, incapable of consent.

For people in group B), the PatVerfue^® is the tailor-made instrument to put a stop to coercive psychiatry for themselves: Insane? Your own choice!

The FCC was thus faced with the dilemma of either ignoring this evidence against logic (at the cost of being accused of disregarding compelling logic) or revising the 2011 decision. For Germany’s highest court, this is apparently too much to ask, and so instead of abandoning coercive psychiatric treatment altogether and becoming human rights compliant, it attempted a last-ditch rescue. It declared the law § 1901a German civil code on medical advance directives to be legally binding and effective only for people in group B) who have a PatVerfue. The legal principle that no-one may dispose over the rights of others serves as a pretext for legitimisation. However, this has a two-sided effect – on the one hand, the rights of a person protected by a living will under the Patient Advance Directive Act § 1901a may not be violated. On the other hand, no-one may endanger another person, e.g. by a threat or an attempt to coerce. However, this principle applies equally to all people and is comprehensively taken into account in the constitutional state, especially also without psychiatric diagnoses. Nina Hagen, PatVerfue’s patroness, summed it up like this:
https://www.zwangspsychiatrie.de/nina-hagen-explains-the-clever-psychiatric-advance-directive/

„Anyone who denies that there are mental illnesses does not deny that there are conspicuous behaviors and disturbing thoughts and feelings of others. The only dispute is that this is a disease and that medical healing is to be consulted. Since the lawful state can sanction any version of conduct that violates or endangers the rights, property or body of others, also without the construction of special deprivation of rights on „mental illness“, there are no loopholes in the law that can justify this far-reaching and arbitrary detention and degradation in psychiatry.
By means of coercive psychiatry, medicine offers the state power only an additional punishment apparatus for breaking the will, monitoring, coercion, intimidation, threat and fear of adult citizens – a kind of thought police.“ ²

There is no justification for a coercive diagnosis prohibited by a PatVerfue, because without a diagnosis no rights of another person are violated, instead only the rights of the person concerned having a PatVerfue would be violated by the compulsion.
Danger to another person can only occur as a result of concrete action. But these concrete dangers can be countered without coercive psychiatry anyway, as Nina Hagen correctly described above.

So there is no justification at all for coercive treatment which is prohibited by a PatVerfue because
a) no coercive diagnosis may be made (and should not be able to be made anyway if the person consistently remains silent) and
b) endangerment and criminal acts are covered by the narrow criminal and public order law anyway, so there is no lawful justification for psychiatric coercive measures. They are disproportionate, as inadmissibly less mild measures are a disregard of Article 2 of the Constitution Law, because physical integrity is violated by coercive treatment. This is also the case with a coercive diagnosis, as already in 1995 the Regional Court of Cologne found in its judgement No. 25 O 308/92 (the doctor had to pay damages for pain and suffering in a case of a person agreeing to having a blood sample taken, however not having agreed to testing for HIV).

Conclusion:
Psychiatric coercive treatment can only be justified by a living will that explicitly authorises the mentioned coercive treatment and previously written with his/her free will. The attempt to interpret Article 2 of the Constitutional Law in such a way that an incapacity to consent under certain conditions could justify bodily harm to be endured by people who neither consider mental illness to be probable, nor believe in it, nor are convinced of its existence, was rejected by the FCC in its decision because it violates the absolute prohibition of torture. The PatVerfue has thus been granted the status of jus cogens, as lawyer Dr. David Schneider-Addae-Mensah stated in his press release. The Special Rapporteur on Torture of the UN Human Rights Council, Juan E. Méndez, has also stated that „All States should impose an absolute ban on all forced and non-consensual medical interventions against persons with disabilities, including the non-consensual administration of psychosurgery, electroshock and mind-altering drugs, for both long- and short- term application. The obligation to end forced psychiatric interventions based on grounds of disability is of immediate application and scarce financial resources cannot justify postponement of its implementation.“ ³ The FCC’s trick of making this jus cogens apply only to people protected by a PatVerfue has only a delayed effect⁴.

This only reinforces the contrast between people who, with foresight, have protected themselves with a PatVerfue and those who have carelessly not done so. Unprotected, they are still at the mercy of coercive psychiatry. In the absence of a ban on psychiatric diagnoses by means of a PatVerfue, they are also unable to defend themselves against an actual or assumed „danger to others“, which can lead e.g. to legalised forced treatment. However, the FCC has also strengthened their rights in such a way that only when the rights of others are violated may coercive treatment legalised by state force come into play, and always only in a proportionate manner!
This constitutional view must also be recognised by the lower courts, or they must be educated by consistent complaints to the higher courts about their unjust decisions against the Constitutional Law.

Noteworthy: With this decision, the FCC has also revised the reasoning of its previous rejection of an interim injunction of 7 September 2017, see: http://www.FCC.de/e/rk20170907_2bvr186617.html !

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Footnotes:

1 The press release with link to the full text of the decision here: https://www.bundesverfassungsgericht.de/SharedDocs/Pressemitteilungen/DE/2021/bvg21-066.html

2 The quote from Nina Hagen is from her article „Mentally ill? Your own decision!“ in the book „Stadtwirte /Von Sozialraumfarmern und Inklusionswirten“ (published by G.I.B. – Gesellschaft für integrative Beschäftigung mbH). The text can also be read on the PatVerfue website: https://www.zwangspsychiatrie.de/nina-hagen-explains-the-clever-psychiatric-advance-directive

3 The quote translated into German is from page 5 in: Statement by Mr. Juan E Méndez SPECIAL RAPPORTEUR ON TORTURE AND OTHER CRUEL, INHUMAN OR DEGRADING TREATMENT OR
PUNISHMENT. 22nd session of the Human Rights Council Agenda Item 3. 4 March 2013 Geneva
Internet see: https://www.zwangspsychiatrie.de/cms-67UN/wp-content/uploads/2017/09/Juan_Mendez.pdf

4 See the UN CRPD, i.e. human rights compliant, non-violent psychiatry as conceptualised in this article in Recht&Psychiarie (Law & Psychiatry): https://www.mdpi.com/2075-471X/8/3/19