Ability to give consent

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Capacity to give consent is a legal term that describes the ability of a person concerned to consent to the violation of a legal interest attributable to him or to reject it. It is (among other things) a prerequisite for effective consent .

In particular, according to German law (or at least its interpretation by case law ) , the medical intervention correctly carried out according to the principles of medical healing only becomes lawful with effective consent ( § 228 StGB ) ; otherwise this can also be punishable as bodily harm ( Section 223 StGB). The problem of the ability to give consent is therefore particularly relevant in medical therapeutic interventions .


The medical treatment of a patient regularly (initially) interferes with his physical integrity. This is particularly evident during an operation , such as an appendectomy: cutting the patient open, viewed in isolation, injures his or her physical integrity. Accordingly, this can also apply to less obvious cases of medical treatment, such as medication, etc.

The prerequisite for such a justification effect is above all that the patient knows what he is consenting to. The case law has therefore developed the following principle for medical curative intervention:

Anyone who can grasp the type, significance and scope (risks) of the medical measure is capable of giving consent.

It does not matter of course, in the real sense of the capacity of the patient; Nor is the beginning of the ability to consent generally tied to a minimum age. The decisive factor is rather the patient's ability to concretely grasp the complexity of the intervention. Depending on the nature of the intervention and the patient's condition, this ability may also be present in the disabled or absent in the disabled.

From this it follows for German criminal law that the person incapable of giving consent can not produce the justification effect. In this case, the doctor may not carry out the procedure even if the person unable to give consent has consented if he does not want to risk criminal liability for bodily harm.

In this case, however, it may be necessary to appoint a supervisor for the person unable to give their consent, who can give their consent in place of the person being supervised. Such consent would be effective and would also have the aforementioned justification effect. However, within the framework of Section 1901 of the German Civil Code, a supervisor is bound by an advance directive in his or her decisions .

From the point of view of care law, however, it should also be noted that the person who is capable of giving consent must also consent himself. If the person capable of giving consent has an idea of ​​the nature and necessity of the intervention and its risks, the decision as to whether to consent to the intervention must also be left to him.

If the patient is capable of giving consent, he must not be treated against his will under any circumstances, even if a legal guardian ( § 1896 BGB) has been appointed for the patient . Rather, the treating physician is obliged to inform the patient about the treatment, its risks and the alternatives and to make his own decision. Only in the case of incapable of consent does the supervisor, of course, have to be given appropriate medical advice instead of the person being cared for. The same applies, by the way, to an authorized representative for health matters ( Section 1904 (2) BGB), who, in contrast to the court-appointed supervisor, has a private power of attorney.

If the caregiver agrees to a medical measure instead of the person being cared for, he or she needs a guardianship court approval ( Section 1904 BGB) if there is a risk that the patient will die (e.g. during major operations on internal organs) or longer and significant damage suffers (e.g. loss of a limb as a result of amputation , loss of sense, etc.). The same applies to an authorized representative according to Section 1904 (2) BGB. Exactly when this risk exists has not been conclusively clarified in the case law (e.g. in the case of medication such as neuroleptics ). Every year around 2000 such permit applications are submitted, which seems very little in view of the more than 1 million people being looked after.

Even if the patient is not able to give consent, interference with the fundamental right to physical integrity against the patient's will should actually only be permitted if it is proportionate . The Federal Constitutional Court speaks of a right to “ freedom to be ill ” within certain limits. In its decision of October 11, 2000 on compulsory outpatient treatment with reference to the Federal Constitutional Court , the Federal Court of Justice declared that it was not always proportionate to treat the patient against the will of the patient. In a new fundamental judgment of the BGH on inpatient compulsory treatment, the admissibility of the compulsory treatment of the cause of the disease is assumed under strict conditions, which led to the court approval of the placement . A decision of the Federal Constitutional Court stipulates that compulsory accommodation may only be given in the event of considerable danger to oneself or others. The threat of a disease becoming entrenched does not justify compulsory treatment. The interpretation of the resolutions suggests that compulsory treatment is permitted if it is clear that the patient will consent to the treatment afterwards, i.e. when he is able to consent again.

Inability to give consent to the circumcision of boys

See also

Living will , medical treatment , proportionality , care (law) , decision-making , declaration of intent , informed consent , Natural Will , Free Will , tortious , marriage ability , capacity , capacity to act , party ability , Postulationsfähigkeit , process capability , legal capacity , culpability , testamentary capacity , process capability

Web links

Individual evidence

  1. BGH NJW 1972, 335; see University of Freiburg, essay with reference to this decision .
  2. Hamm Court FGPrax 1997, 64th
  3. Minors capable of giving consent. German Reference Center for Ethics in the Biosciences, accessed on April 18, 2014 .
  4. ^ BGH, decision of October 11, 2000 , Az. XII ZB 69/00, full text.
  5. BGH, decision of February 1, 2006 , Az.XII ZB 236/05, full text.
  6. BVerfG, decision of March 23, 1998 , Az. 2 BvR 2270/96, full text.