A A P A
International Association Against Psychiatric Assault
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.
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.
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).
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
people who think mental illness is at least likely, believe in it or
are 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.
in group B), the PatVerfue®
is the tailor-made instrument to put a stop to coercive psychiatry for
themselves: Insane? Your own choice!
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.
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.
is no justification at all for coercive treatment which is prohibited
by a PatVerfue because
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!
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 !
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
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
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