/image alliance, Sebastian Gollnow
Karlsruhe – The Federal Constitutional Court (Federal Constitutional Court) negotiated in Karlsruhe the compulsory medical treatment of people under legal care.
The question is whether the affected persons absolutely have to be treated in hospital or whether this must also be possible in their residential facilities. During the hearing it became clear that the court was faced with a difficult decision (ref. 1 BvL 1/24).
Many people are currently or potentially affected. Legal support is provided to people who are unable to make decisions for themselves due to illness or disability. This could be, for example, people with severe mental illness, intellectual disability or dementia.
BVerfG Court President Stephan Harbarth said at the beginning of the hearing that the issue concerns one of the “most sensitive areas of protection of adults in terms of fundamental rights”. On the one hand, people receiving care must be guaranteed adequate protection, but on the other hand, their civil liberties must not be disproportionately interfered with. “The legislative decision on where – or where – compulsory medical measures may be carried out also moves in this area of tension.”
There are major legal obstacles to compulsory medical treatment for people in care. It must be absolutely necessary. There must be a risk of serious harm to health and the benefits must outweigh the risks.
Furthermore, an attempt should be made in advance to convince those affected – only if they do not recognise the need or are unable to act accordingly can compulsory treatment be given. The presumed wishes of those affected or, in healthy times, expressed in a living will must also be taken into account.
The law stipulates that compulsory treatment can only take place in hospitals, where medical care and follow-up treatment are guaranteed. The negotiation was only about this regulation.
The Federal Court of Justice (BGH) has referred this question to the constitutional judges. The BGH is to rule on the case of a woman with paranoid schizophrenia who was born in 1963 and has been living in an institution since 2008. Her supervisor requested that she receive the medication for psychosis – which she did not want to take – there and not in the hospital because she would be retraumatized there.
In the past, she sometimes had to be restrained and spit-protected in order to be taken to the clinic for compulsory treatment. However, the initially responsible courts did not agree with the guardian’s request.
The woman turned to the BGH. It considers it unconstitutional that compulsory treatment should take place in the hospital without exception, even though this could harm people and they could also be treated in its facilities. It suspended the proceedings in November 2023 and asked the Constitutional Court whether this was the case.
During the hearing, experts and a representative of those affected complained about the lack of sufficient data on the issue. Some respondents expressed concern that weakening regulations could lead to more mandatory treatment or that alternatives would be less considered.
There was also debate about what would be less traumatic – forced transport to hospital or forced treatment at home. Some experts advocated maintaining the hospital requirement, while others also considered that different regulations could be possible for certain individual cases.
Thomas Pollmächer of the German Society for Psychiatry and Psychotherapy, Psychosomatics and Neurology (DGPPN) made it clear that transportation to the hospital could represent a considerable burden for those affected. The journey alone sometimes takes 20 to 30 minutes, which the patient is usually aware of.
People can be injured when restrained. This can be more difficult during transport than when restrained for a short period of time, for example to administer medication at home. In individual cases, the operations can have serious physical or psychological consequences, he said. For example, if someone lives with the idea of being tortured, this can be reinforced.
The federal government has spoken out in favor of maintaining the current regulations. Even a “very small hole” in this protective wall could quickly grow and trigger a “dam break,” said Ministerial Director Ruth Schröder of the Federal Ministry of Justice (BMJ). However, coercive measures should not intervene in people’s private environments. Multidisciplinary teams could also contribute their expertise in hospitals.
She noted that the previous regulation was evaluated by a research team and they came out against the change. Although this previous regulation has been in effect since 2023, the new regulation is the same.
This position is also supported by experts from the Federal Working Group, e.g. Self help of people with disabilities, chronic illnesses and their families. On the other hand, Kay Lütgens spoke Federal Association of Professional Carers for exceptions for individual cases. “I cannot provide exact numbers.”
Among others, Ulrich Langenberg of the German Medical Association (BAK) made it clear how different settings and treatment measures can individually affect those affected. If one person is overwhelmed if coercion is exercised against them within their own four walls, another will be traumatized if they are torn away from their familiar environment.
The First Senate has not yet ruled today. It is usually announced a few months after the oral hearing. © dpa/afp/aerzteblatt.de