2011: Restrictions of freedom
Personal freedom is dealt with in article 2, section 2, of the Constitution:
“Everyone has the right to life and to physical integrity. The freedom of the person is inviolable. Intrusion of these rights may only be made pursuant to a statute.”
Paragraph 1906 of the German Civil Code which governs guardianship has constituted one such statute since 1992. In addition, each "Land" has its own requirements for the protection and care of people who are suffering from a mental illness or disorder. These regional laws provide more detailed guidelines concerning the process and conditions of forced internment. In this section, I will refer to both §1906 of the Civil Code and the Law of Lower Saxony on Aid and Protective Measures for the Mentally Ill (No 12/1997) which is an example of legislation in one such "Land". Conditions for involuntary internment
The conditions for involuntary internment
According to §1906 of the Civil Code, forced internment of a person for whom a guardian has been appointed is only permissible if it is required for his/her wellbeing, because:
due to the fact that the person under care suffers from a mental illness or a mental handicap there is a danger that s/he will kill him/herself or cause considerable damage to his own health, or
a health examination, medical treatment or surgery is required, which cannot be carried out without the person being committed and the person under care, because of a mental illness or mental handicap does not recognise the necessity for commitment or cannot act in accordance with this understanding.
The Law of Lower Saxony regulates the aid and commitment of people who are or have been ill or handicapped as a result of a mental disturbance or who have the symptoms of such illness or handicap. The conditions for internment are that the person (to whom this law applies) is at the present time a source of considerable danger to him/herself or others and that this danger cannot be averted by other means.
The procedure for involuntary internment
§1906 of the Civil Code states that commitment is only possible with the approval of the Court of Guardianship. If it is not possible to obtain approval and delay could be dangerous, it is still possible to intern a person and obtain approval immediately afterwards.
According to §13 of the Law of Lower Saxony, if there are grounds to believe that commitment cannot be averted by the provision of aid, the Social Psychiatric Service can arrange for a person to be examined by a doctor of his/her choice. This doctor is then authorised to report the results of the examination to the Social Psychiatric Service. Alternatively, the person can be summoned by the Social Psychiatric Service for an examination. If there are urgent grounds to believe that the conditions for internment have been met, the person concerned can be brought for examination. If necessary, his/her residence may be entered in order to bring him/her for examination. If it is reasonable to do so, the doctor should inform the person of the results of the examination.
The Court of Guardianship decides on forced internment, as well as on provisional internment in order to establish whether the conditions have been met. A medical certificate must be submitted to the Court of Guardianship, which must not have been issued by a doctor who is acting on behalf of the administration in the internment procedure.
If it is not possible for the court to come to a decision straight away, the person can be admitted to a suitable hospital until the end of the following day. For this to be possible, the conditions for internment must be indicated in the medical certificate, which must have been issued by a doctor who is experienced in the field of psychiatry and be based on a finding made no earlier than the previous day.
Once the court has made a decision on internment, the person in question is informed of the legal assistance to which s/he is entitled and is given the opportunity to notify a person of his/her choice. A medical examination is carried out as soon as the person has been interned in order to determine therapeutic treatment and develop a treatment plan.
The duration of involuntary internment and the process of review
There is no fixed period of internment mentioned in §1906 of the Civil Code or the Law of Lower Saxony. Presumably, the initial duration of internment is decided by the Court of Guardianship. Both laws stipulate that the internment must be terminated if the conditions which led to it are no longer valid.
Restriction of personal liberty
Paragraph 239 of the Penal Code deals with the wrongful deprivation of personal liberty and does not include any limitation of time. It states:
"Whosoever locks up or deprives a person of his/her freedom in another way will be punished by a prison sentence of up to 5 years or a fine."
Restraint and other coercive measures
The provisions in the Civil Code for internment also apply to the deprivation of a person's freedom for a long period of time or on a regular basis by mechanical apparatus, medication or in another manner. This is applicable regardless of whether the person under care is in an institution, a home or another establishment.
Similarly, the Law of Lower Saxony also applies in the case of further restriction of liberty once interned by means of mechanical devices, medication or by other means over a lengthy period of time or on a regular basis. In such cases, the management of the hospital must apply for authorisation from the Court of Guardianship.
Paragraph 233 of the Penal Code states that whoever mistreats the body of another person or causes damage to their health will be punished by a prison sentence of up to three years or a fine.
The legally unjustified restriction of a person's freedom or free movement can be considered as a form of abuse, as can various measures of restraint described above, according to paragraph 1906 of the Civil Code and paragraph 239 of the Penal Code. Consequently, people in daycare centres (or indeed any other place) cannot be detained against their will unless they have been officially committed. This would be the case if doors were locked or there were complicated systems, making it difficult for people to leave the building.
The use of measures of restraint (such as belts, straps, special chairs or medication etc.) must be authorised by the Guardianship Court. However, the use of such measures would only be considered as abusive if they were used against the person's will or if s/he was unable to consent to them. For example, a strap could justifiably be used to prevent a person from falling out of bed provided that the person was able to consent to this measure, that s/he was legally competent and capable of undoing the strap at any time.
According to §4 of the Tenth Road Traffic Law of 19 December 1952 (and subsequent amendments), the traffic administration authorities must withdraw the licence of any person who reveals him/herself to be unfit to drive. The licence expires immediately on withdrawal. The authorities have the right to check a person's ability to drive. According to §7 of this law:
"If, in the operation of a motor vehicle, a person is killed, physically injured or his/her health is damaged or a tangible object is damaged, the owner of the vehicle shall be obliged to compensate the injured party for the damage caused."
§ 69 of the Penal Code also covers withdrawal of driving licences. If a person has committed an illegal act (e.g. endangering traffic) in connection with the driving of a vehicle, but has not yet been sentenced as it cannot be proved or ruled out that s/he is in a state of incapacity, the court shall withdraw the driving licence if it is evident from the illegal act that s/he is unfit to drive. Once convicted of the offence, the verdict shall include confiscation of the driving licence.
The Law of Lower Saxony also addresses the issue of driving as well as the handling of firearms. According to §34 of this act, the Social Psychiatric Service or the hospital must inform the competent authorities if they consider that a person who has been involuntarily committed would be a danger to him/herself or others by driving a motor vehicle or handling arms. This law applies to Lower Saxony. Other "Länder" may have slightly different provisions.
The issue of confidentiality and unfitness to drive:
In a court case involving a woman with schizophrenia, the Federal High Court ruled that a doctor could inform the traffic authorities of a person's unfitness to drive. This could equally apply in cases of dementia. The judgement was as follows:
“A doctor, despite his basic duty to maintain confidentiality, can be justified, according to the principles on the weighing up of conflicting duties or interests, in informing the traffic authorities if his patient drives a motor vehicle on the road despite no longer being capable, on account of his illness, of driving a motor vehicle without endangering himself and others. The precondition, however, is that the doctor has previously made the patient aware of the condition of his health and of the dangers that would arise if he drove a motor vehicle, unless, from the outset, there would be no point – due to the nature of the illness or lack of understanding on the part of the patient - in the doctor trying to persuade him.” (BGH, Urt.v. 8.10.1968 – VIZR 168/68 – Schizophrenie (KG Berlin)
This judgement was justified on the grounds that although confidentiality forms the basis for the relationship between doctor and patient, the doctor is bound by a higher interest which is to protect public safety. The interest in preventing a person who is unfit to drive from driving is considered to outweigh the interest the public and the individual have in the doctor's maintenance of confidentiality in this case.
 In German, the Civil Code is called the Bürgerliches Gesetzbuch or BGB for short.
 From this point on, this law will be referred to simply as the Law of Lower Saxony.
 The term "guardian" will be used in this report instead of "carer", which is used in the translation of the Bürgerliches Gesetzbuch (BGB).
 Bundesministerium der Justiz (1996), Das Bundesministerium der Justiz informiert: Das neue Betreuungsrecht, Klett Druck G.m.b.H.
Last Updated: Wednesday 14 March 2012