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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ruled that the regional state law on which the lower courts decided was unconstitutional and is therefore immediately no longer valid.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.
(Secretary of IAAPA and member of the board of a national German user and survivor organization)
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
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.
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).
§ 6 MVollzG Rh.-Pf. is as follows:
§ 6 admissibility of measures
(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.
(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.
(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.
(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.
(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.
(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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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 n
ecessity 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.
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.
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.
§ 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 .
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.
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 (
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.
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.
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).
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
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
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
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 t
he outset (see BVerfGE 58, 208
3. In the forced medical treatment of a housed with antipsychotic drugs is a very serious infringement of fundamental rights.
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 Volckart / Lesting, detention and accommodation, 5 Ed 2010, para. B 208, Marschner, R & P 2005, p. 47 ) 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.
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.
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.
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.
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
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
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 ; Volckart / Green Tree, forensic psychiatry, 7th edition, 2009, paras 362, 365;. Rüping, JZ 1982, p. 744
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
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
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.
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
If under this assumption, a power of the state of exception, the individual „to take from itself in protection“ (cf. BVerfGE 58, 208
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.
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
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 ; Garland, BtPrax 2009, S . 55 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 ).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 restrict
ions on expert opinion confirmed exceptions Hond, supra, p. 144 ff
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.
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
b) The fundamental rights to requirements arising in relation to the procedures of the authorities and courts (see BVerfGE 52, 380
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 , 116, 135
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
In a forced treatment with antipsychotic drugs must be without prejudice to the obligation to terminate within the scheduled period at