des Werner-Fuß-Zentrums an der freien "Universität" in Berlin
Why the inability to consent cannot be a criterion to justify compulsory psychiatric treatment – the proof.
(We have delivered this proof to the Federal Constitutional Court on May 4, 2016)
Premise 1:
Nobody may be forced with state coercive measures to have a certain belief and/or faith, in particular not by means of having to endure bodily injury.
For sick people there is a right to illness and there is an absolute prohibition of torture.
Premise 2:
The existence of mental illness is not without controversy; there is a difference of opinion on this subject. Its existence is denied by Prof. Thomas Szasz (1920-2012), Chair Holder on Psychiatry in Syracuse University – USA – since 1961, with his many publications e.g. „Insanity – A Modern Myth“. Since 1961 other academics, such as renowned french philosopher Michel Foucault, agreed with him. Many of those who have been psychiatrically diagnosed share the same conviction. For example, explicitly all those who have signed the special advanced psychiatric directive, the „PatVerfue“. Although not mainstream, this conviction is not a completely mistaken marginality.
Conclusion:
Accordingly, the „inability to consent“ can be no justification for any coercive treatment, no matter how limiting other [legal] conditions may be. That means that in the decision of the Federal Constitutional Court [Federal Constitutional Court, decision of the second Senate of March 23, 2011 – 2 BvR 882/09], the only specified justification for the use of coercive treatment was not valid.
Proof:
An ability to consent to treatment for any disease whatever is then, and only then possible, if this person – beyond the question of the correctness of a diagnosis – at least believes in the likelyhood of this disease or, better, believes it to be a fact or is even convinced of its existence.
According to premise 2 there are therefore
A) people who think mental illness is at least likely, believe in it or are convinced of its existence.
B) people, who neither consider mental illness as likely, nor believe in it and are not convinced of its existence.
Only people from Group A) can therefore be capable or incapable of consent – for whatever reason.
People of from Group B) can – in a conscious state – under no circumstances agree to a treatment of an illness of which they are convinced is non-existent. Consent would be a conscious lie for them. Thus, according to this logic, they are therefore in principle incapable of consent.
If people from Group A) are diagnosed in a psychiatric examination as „mentally ill“, in principle their ability or inability to consent can also be established. Under certain circumstances, they may temporary have no „illness insight“, but in principle it is possible. Thus there is no paradox.
If people of the Group B) in a psychiatric examination – which is possibly even made against their will – are diagnosed as „mentally ill“, they can in principle never be determined incapable of consent, because they are always unable to consent anyway because of their beliefs or their faith.
If the inability to consent of Group B), under any additional conditions whatever, could lead to coercive psychiatric treatment being justified by law, premise 1 would be violated. Because in the event of compulsory treatment being tolerated it could only be terminated by the „patient“ in that he/she either denies or revokes his/her conviction due to having experienced extortive coercive measures. Both would be a forced illness insight – a „self-accusation“ of supposedly being „mentally ill“. Such coercive measures would violate the prohibition of torture (keywords: forced confession).
Neither the Federal Constitutional Court, nor the German legislature may violate this internationally recognized jus cogens. No interpretation of Article 2 of the German Constitution (GC) may subvert it, as the Federal Constitutional Court tries to do in the decision of the second Senate of March 23, 2011 – 2 BvR 882/09 Section 47 + 49:
Quotes:
b) To justify the procedure, the constitutionally protected interests to liberty of the interned person can itself (Article 2 Par. 2 Clause 2 GC) be suitable if the interned person is unable to take advantage of these interests as a result of the incapacity to illness insight because of his/her disease.
bb), The importance that becomes relevant with the restricted constitutional rights in balance with those basic rights which should be respected by the limitation of this right, cannot however be decided by being completely detached from the real possibilities of the bearer of constitutional rights to the resolution of a free will. The legislature is therefore entitled under narrow conditions as an exception to allow treatment against the natural will of the bearer of constitutional rights if he/she due to illness is not capable of insight into the severity of his/her illness and the need for treatment or to act according to such understanding. The Federal Constitutional Court has accepted that under this condition the serious interference in constitutional rights, which detention constitutes, may even be justified for the protection of the person concerned and endorsed the possibility of forced internment for such a case of protective detention for the purpose of treatment as provided for by the state detention law.
Summary:
Compulsory psychiatric treatment can be justified only by an advance medical directive which has previously been written with a free will and which explicitly grants appropriate coercive treatment. The attempt to interpret Article 2 GC so that an incapacity to consent under certain conditions could justify bodily harm, is contrary to the absolute prohibition of torture. Accordingly, also the Special Rapporteur on torture of the United Nations High Commissioner for Human Rights, Juan E. Méndez, has ruled that „States should impose an absolute ban on all forced and non-consensual medical interventions against persons with disabilities, including the nonconsensual administration of psychosurgery, electroshock and mind-altering drugs, for both long- and short- term application. The obligation to end forced psychiatric interventions based on grounds of disability is of immediate application and scarce financial resources cannot justify postponement of its implementation.“
Noteworthy:
The Federal Constitutional Court heeded this evidence and on June 8, 2021, in the two proceedings 2 BvR 1866/17 and 2 BvR 1314/18, established a constitutionally protected right to illness in a court decision.
Federal Constitutional Court breaks jus cogens
