Accommodation (Germany)

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The accommodation in means Germany admission to a locked ward of a mental hospital or a rehab without or against the will of the person concerned. A medical examination, therapeutic treatment or medical intervention may be carried out there under certain conditions without the consent of the person concerned ( compulsory medical measure ). If the defense against dangers for other people can be countered with the deprivation of liberty, this justifies treatment against the will of an incapacitated inmate only on the basis of a clear and specific legal regulation ( BVerfG 2 BvR 882/09 marginal number 46).

Legal basis

There are three legal types of accommodation in the Federal Republic of Germany:

  1. the civil law according to § 1906 BGB as well as in the case of minors according to § 1631b BGB for the benefit of a cared for or minor;
  2. the public law because of a threat to public safety according to the laws for the mentally ill of the individual federal states and
  3. the basis of a criminal conviction of a criminal or securing method arranged, which in an institution of Maßregelvollzugs is executed.

As soon as and to the extent that mental disorders are the reason for compulsory admission, the legal bases mentioned are to be applied.

In addition, police authorities can arrest people in imminent danger according to the security and regulatory laws or hazard prevention laws of the federal states. In almost all countries and regions, people who appear mentally ill are presented to an emergency doctor at the police station or, depending on the availability of the services, to a psychiatrist in this way. In individual regions, police officers immediately take those affected to a psychiatric clinic and ask there to initiate further proceedings.

The "compulsory restraint" takes place when a previously voluntary treatment can no longer be sustained, but the patient appears to be at great risk and wants to leave the clinic. The same applies if a patient has left the clinic and there are signs of an acute risk of suicide . The police are then asked to look for the patient. These steps can be carried out using the federal state accommodation laws with immediate effect as well as on the basis of care law.

Placement under civil law according to the German Civil Code

Legal mentoring according to Section 1906 Paragraphs 1 and 2 of the German Civil Code (BGB) can result in compulsory admissions if the legal supervisor is responsible for this. The person concerned is then accommodated by his supervisor with the approval of the supervisory court. The prerequisite is that the person being cared for does not recognize the necessity of the medical measure due to a mental illness or a mental or emotional disability or cannot act according to this insight and an attempt has been made beforehand to convince the person under care of the necessity of the medical measure. The compulsory medical measure in the context of the placement must be necessary for the well-being of the person being cared for, in order to avert an impending substantial damage to health that cannot be averted by any other measure that is reasonable for the person under care. The expected benefits of the compulsory medical measure must clearly outweigh the expected impairments. In the case of this legal care placement, the care court is also responsible and the same procedure is followed.

Placement by a proxy is possible if this person has been expressly granted the right to deprived of liberty in a health care proxy ( Section 1906 (5) BGB).

Accommodation of an adult in accordance with these provisions is only possible if the person concerned is at risk to himself, because of a risk to life or significant health risk (significant risk to himself ). The typical case is the risk of suicide. Some courts also see a considerable risk in the threat of chronification of schizophrenia or mania with the associated decline in personality . The Federal Constitutional Court explains:

“The freedom of the person is such a high legal value that it may only be affected for a particularly weighty reason (cf. BVerfGE 45, 187 (223) ). The restriction of this freedom must therefore always be subjected to the strict test of the principle of proportionality. (...) The assessment expressed by the attending physicians at the clinic that the complainant's delusional system is threatening to solidify does not justify the assumption of a danger that cannot be delayed. This is especially true because the doctors were unable to determine any danger to themselves or others. "

It is not forcibly allowed to be accommodated simply because of the need for medical treatment, the necessity of which the person concerned cannot recognize due to the illness or cannot act accordingly.

You cannot be accommodated because of a threat to your assets .

If extreme conditions (e.g. life between one's own feces ) are created by the illness , which are inhumane according to all evaluations , it may presumably be accommodated. Because of the considerable interference with the constitutionally guaranteed freedom ( Art. 2 Basic Law ), particular attention must always be paid to proportionality , i. h. that there must be a likelihood of damage occurring for the person being cared for; the mere possibility is not enough. Some courts affirm that there is an actual danger to others because of possible defensive reactions of others. However, if there is considerable danger to others, accommodation can be accommodated according to PsychKG .

Not every health hazard is enough. Possible reasons are e.g. B. the denial of essential medication or food due to mental illness, the regular and haphazard wandering in traffic or the necessary detox phase after drug or alcohol abuse (in contrast to the subsequent withdrawal treatment, which is not a reason for accommodation). Here, too, the question of alternative care and treatment options as well as the expected negative effects of the placement in comparison to the possible healing success must always be examined.

If the placement takes place for the purpose of curative treatment , it must always be asked whether the person concerned is capable of giving consent to the medical treatment, i.e. whether he is able to recognize the significance and scope of the intervention and to determine his will accordingly. If this is the case, but the person concerned does not agree to the treatment, then placement to force this insight is in any case inadmissible.

In addition, placement is not an option if the intended treatment does not promise sufficient success, e.g. B. an alcohol withdrawal treatment against the will of the cared for.

Public-law placement according to the state laws on the placement of mentally ill people

Immediately effective forced admissions almost always take place under public law in accordance with the state laws in each federal state on help and protective measures for the mentally ill ( mentally ill laws , PsychKG). As in comparable western countries, these contain provisions for immediate measures by the administrative authorities. A current medical certificate is always required. In terms of content, hazards to self or others are assumed which are caused by the psychological disorder and cannot otherwise be averted. Immediate or “provisional” placements are only valid until the end of the following day. An admission examination must be carried out after instruction. This can lead to the so-called 24-hour decision expiring. In the case of severe disorders, in which the risk must continue to be accepted and no voluntary basis for treatment appears to be achievable, the supervisory court is involved . This is responsible for the placement procedure.

Accommodation is primarily based on a decision by the relevant local court. As a rule, the courts act at the request of an administrative authority responsible for this (district authority , district office ). Usually these are health authorities . Public safety is at risk if the legal interests of other people are threatened (third party endangerment), but also the legal interests of the person concerned (personal endangerment). In the case of endangerment to others, however, significant legal interests (physical integrity, life and limb) of others must be considerably endangered, noise disturbing noise or minor property crimes are excluded.

Only if the court cannot decide quickly enough, so-called "provisional placement due to imminent danger " by the health authorities themselves comes into consideration: the health authorities can under most state laws (e.g. law on the placement of mentally ill and their Care in Bavaria Art. 10 Para. 2) - if no judge can be reached - if there is imminent danger, take the person concerned to psychiatry - if necessary with the support of police officers if the person concerned resists. In any case, the health authorities must immediately notify the relevant local court of the measure. If there is no court decision by the end of the day following the placement, the person concerned must be released ( Art. 104 GG).

The prerequisite for placement under the above-mentioned state laws on the placement of mentally ill persons is always that a serious mental illness is actually determined and that this illness continues to pose a risk to public safety. Violence in marriage out of anger, frustration, revenge or disappointment is not enough even if very considerable dangers arise, e.g. B. if spouses want to kill themselves. Because in these cases there may be a threat to public safety, but not a mental illness. However, it does not follow from this that the police cannot intervene in these cases: depending on the individual case, B. custody in the nearest police station according to the respective state laws on the maintenance of public safety and order may be considered. In this case, too, a judge would have to be called in immediately .

Criminal placement

Compulsory admissions mentally ill offenders or addiction made on the basis of criminal law in the interim procedures to § 126a Code of Criminal Procedure and substantive law according to § 63 and § 64 of the Criminal Code (see. Forensic ).

The criminal Accommodation is possible ( § 63 of the Criminal Code) when a mentally ill offenders more serious offenses threatening to commit and blame incompetent ( § 20 is the Criminal Code). This deprivation of liberty takes place on the basis of a criminal court decision in the context of the execution of a measure . Placement in criminal proceedings can be temporarily ordered under the conditions of Section 126a of the Code of Criminal Procedure before the conclusion of the criminal investigation procedure . Otherwise it will be ordered at the end of the main hearing under the conditions of § 63 or § 64 StGB by the large criminal chamber of the competent regional court . The procedural rules of the Code of Criminal Procedure apply .

Placement is to be distinguished from preventive detention under Section 66 of the Criminal Code.

Placement procedure

For placements according to the BGB and the state laws for the mentally ill , the FamFG regulates an placement procedure at the district court / care court .

Deprivation of liberty

Since an accommodation against the will of the person concerned represents a measure depriving her of liberty , it is based on Art. 104 (2) GG precludes a judicial decision ( judge reservation ).

A deprivation of liberty exists if one of these conditions is met:

  • The victim is held in a confined space.
  • His stay is constantly monitored.
  • The establishment of contact with people outside is prevented by security measures.
  • Bed rails or belts have been attached.
  • Use of sedation , d. H. strong sedative or depressant drugs

numbers

The accommodation and treatment of psychiatric patients (from "Dollsinnigen") was regulated for the first time by law in 1743 by a decree of Prince-Bishop Friedrich Karl von Schönborn-Buchheim in the diocese of Würzburg .

The number of placement procedures per 1000 inhabitants in 2005 was between 0.3 and 3.88 , depending on the federal state . In 2008, 280 people per 1 million inhabitants were accommodated in Germany, 86 of them according to PsychKG, 19 according to § 1846 BGB and 175 according to § 1906 BGB.

In 2009, out of 114,578 proceedings relating to measures similar to accommodation within the meaning of Section 1906 (4) BGB, 96,062 were approved and 7,516 were rejected; Of 56,011 procedures about placement under Section 1906 (1) and (2) BGB, 54,131 were approved and 1,880 were rejected. In 1992 a total of around 20,000 permits were issued in accordance with Section 1906 of the German Civil Code.

In statistics, situations are also counted as compulsory admission in which people in a psychiatric clinic are held back in a closed ward in an emergency.

In 2015, a total of 116,591 placements and measures similar to placement were approved by the supervisory courts in accordance with Section 1906 of the German Civil Code. 6. 478 people were housed in a psychiatric hospital in accordance with Section 63 of the Criminal Code. 84,677 proceedings concerned a public-law placement according to the mental illness laws of the federal states.

Current areas of discussion

UN Disability Rights Convention

The UN Disability Rights Convention, which also came into force in Germany on March 26, 2009 , may be in clear contradiction to the mental illness and accommodation laws of the federal states. Several organizations are calling for a change in the law and have issued corresponding statements, in particular on Articles 12, 14 and 17.

"Freedom to Disease" / Forced Treatment

If the defense against dangers for other persons can be countered with the deprivation of liberty, this does not justify treatment against the free, presumed or the will specified in an advance directive (BVerfG 2 BvR 882/09 marginal number 46).

With regard to medical treatment, the Federal Constitutional Court (BVerfG) made it clear as early as 1981 that those receiving care have a right to "freedom to be ill" within certain limits. In the meantime, the limits of the “freedom to be ill” have been largely stated by other highest court decisions of the Federal Constitutional Court and the Federal Court of Justice (BGH). Forced outpatient treatment is not permitted. Inpatient compulsory treatment is permitted for a patient who is unable to consent if there is considerable danger to himself or others according to the standard of proportionality ( Section 34 StGB). A threatened consolidation of a disease alone 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 . Furthermore, compulsory treatment is always permitted if a significant risk for fellow patients or hospital staff cannot be averted with milder means ( Section 32 of the Criminal Code; Section 34 of the Criminal Code). Compulsory outpatient treatment of carers outside the accommodation (such as compulsory depot injections at the treating psychiatrist ) is not permitted according to the case law of the Federal Court of Justice .

According to the report of the UN Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Juan E. Méndez, any coercive treatment that does not serve to avert an acute life-threatening condition is, according to the UN CRPD , applicable in the states that they have ratified the status of a law, regardless of whether the person concerned is capable of giving consent or not.

Accommodation and living will

If in a living will (treatment of non-treatment or) are included in certain situations, requirements for medical measures, these are binding if it can be clearly established by these provisions of the will of the assisted for a specific treatment situation and safely ( § 1901a BGB ). The doctor and the supervisor or authorized representative must observe such a binding living will. Disregarding the patient's wishes, i.e. compulsory treatment, can be punishable as bodily harm ( see there: section “Medical treatment” ). Because every treatment is always an encroachment on the fundamental right to physical integrity guaranteed in Article 2, Paragraph 2 of the Basic Law. A psychiatric will cannot prevent placement and compulsory treatment in the event of exposure to others .

See also

literature

Books / comments

  • general:
    • Bauer / Birk / Klie / Rink: Care and accommodation law (loose-leaf comment).
    • Bohnert: Right of placement. ISBN 3-406-47174-9 .
    • Coeppicus: Factual questions of care and placement law. ISBN 3-170-16333-7 .
    • Deinert / Jegust: The right of the mentally ill (collection of texts). 2nd Edition. ISBN 3-887-84993-0 .
    • Kopetzki: Outline of the right of accommodation (f. Austria). ISBN 3-211-82890-7 .
    • Marschner / Volckart / Lesting: Deprivation of liberty and placement. 5th edition. CH Beck, Munich 2010, ISBN 978-3-406-60554-3 .
    • Probst: care and accommodation procedures. Berlin 2005, ISBN 3503087451 .
    • Winzen: Compulsion. What can be done about care and accommodation? ISBN 3-928-31608-7 .
  • State law:
    • Zimmermann: Bavarian Accommodation Act , 2009.
    • Zimmermann: Baden-Württemberg Accommodation Act , 2003.
    • Zimmermann: Thuringian PsychKG , 1994.

Magazine articles

  • Georg Dodegge: The development of the care law until the beginning of June 2010. NJW 2010, p. 2628. (Note: This is an ongoing series of articles in the NJW that has existed for several years. The latest article always refers to the respective predecessor .)
  • Andreas Jurgeleit: Overview of case law on care and accommodation law. FGPrax 2008, pp. 139, 185.
  • Rolf Marschner: Placement under civil and public law. BtPrax 2006, p. 125.
  • Peter Müller: On the law and practice of childcare placement. BtPrax 2006, p. 123.
  • Andrea Tietze: Forced treatment in the accommodation. BtPrax 2006, p. 135.

Web links

Individual evidence

  1. ↑ BVerfG 2 BvR 882/09 Decision of the Second Senate of March 23, 2011, full text (on the Rhineland-Palatinate state law on the enforcement of custodial measures (MVollzG) of September 23, 1986 (GVBl. P. 223))
  2. ↑ a b BVerfG, decision of March 23, 1998 , Az. 2 BvR 2270/96, full text.
  3. ↑ cf. BVerfG, judgment of July 24, 2018 - 2 BvR 309/15; 2 BvR 502/16
  4. ↑ Martin Heidebach: Deprivation of liberty in imprisonment? The BVerfGE decision on the fixation in the public law housing July 25, 2018
  5. ↑ Konrad Rieger : 1st report for the members of the association for the exchange of institution reports from the psychiatric clinic of the University of Würzburg, containing articles by the board of the clinic: About psychiatry in Würzburg for three hundred years. Würzburfg 1898, pp. 33-46.
  6. ↑ Magdalena Frühinsfeld: Anton Müller. First insane doctor at the Juliusspital in Würzburg: life and work. A short outline of the history of psychiatry up to Anton Müller. Medical dissertation Würzburg 1991, pp. 9–80 ( Brief outline of the history of psychiatry ) and 81–96 ( History of psychiatry in Würzburg to Anton Müller ), pp. 92–94.
  7. ↑ City of Münster, Health Department, Psychiatry Coordination: Health Reports Volume 15 Report on the development of accommodation according to PsychKG and care law in Münster . Münster 2009 ( stadt-muenster.de [PDF]).
  8. ↑ Horst Deinert
  9. ^ Federal Office of Justice: Supervision procedure - compilation of the federal results for the years 1992 to 2009. (No longer available online.) October 26, 2010, archived from the original on November 8, 2010 ; Retrieved December 27, 2010 .
  10. ↑ The exercise of coercion in psychiatric facilities. Response of the Federal Government to a small inquiry, BT-Drs. 18/11619 of March 22, 2017, p. 6, p. 15
  11. ↑ Overview - Psychosoziale Umschau 1/2009 ( Memento from November 27, 2009 in the Internet Archive )
  12. ^ Statement by the German Association for Human Rights ( Memento from November 27, 2009 in the Internet Archive )
  13. ↑ Statement of the Federal Association of Psychiatry Experienced ( Memento from November 27, 2009 in the Internet Archive )
  14. ↑ BVerfG 2 BvR 882/09 Rn. 46 , resolution of the Second Senate of March 23, 2011, full text.
  15. ↑ BVerfGE 58, 208 .
  16. ^ BGH, decision of October 11, 2000 , Az. XII ZB 69/00, full text.
  17. ↑ a b BGH, decision of February 1, 2006 , Az.XII ZB 236/05, full text.
  18. ↑ United Nations Human Rights Council: Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Juan E. Méndez; A / HRC / 22/53, paragraph 35 and 65.f.
  19. ↑ For more information, see the brochure of the Federal Ministry of Justice ( Memento of October 11, 2006 in the Internet Archive ) (PDF file 532 kB).
  20. ^ LG Osnabrück, decision of January 10, 2020 - 4 T 8/20 - 4 T 10/20 = NJW 2020, 1687