International Association Against Psychiatric Assault

Good news from the supreme court in Germany

29 April 2011

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ruled that the regional state law on which the lower courts decided was unconstitutional and is therefore immediately no longer valid.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)



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.


- 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,

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 <4606>).


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 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.

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 (<1/10.000) or occasionally (= 1/1.000 to <1 / 100) before. One exception is clozapine (up to about 1 / 100) dar.


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 <201>).

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).

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.

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).

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 <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.


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 <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>).

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>).

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>).

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.

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).

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 <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>).

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.

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 <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.

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.
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).

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 <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>).

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.

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).

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>).

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).

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>).

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>).

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).

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).

>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.

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.

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>).

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>).


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.

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.

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.

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.

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)).

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.

2. The shortcomings of the statutory scheme can not be remedied through constitutional interpretation. The constitutional deficiencies can be remedied only by legislation.


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.

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

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

Impressum: International Association Against Psychiatric Assault
Spechtweg 1, 4125 Riehen, Switzerland