Germany: Human Rights in Psychiatry

Since 2011, the legislation regarding legal guardianship and compulsory treatment has been significantly reformed. This had become necessary due to several rulings of the German Federal Constitutional Court, which had declared certain legal regulations of some federal states on compulsory treatment to be unconstitutional. Additionally, the federal law regulating legal guardianship had been changed after it had been declared partly illegal by the German Federal Supreme Court. The German Federal Constitutional Court has repeatedly based its decisions regarding human rights on the UN-CRPD. It ruled that compulsory treatments can only be allowed if a person is incapable of consenting and poses a direct threat to herself, if the treatment is a last resort and other less restrictive treatments have failed, and if the treatment is of sufficient efficacy and not associated with significant hardship for the person. According to the reformed laws, persons with disabilities or mental disorders can be placed under legal guardianship if they are no longer able to manage important matters of their lives themselves. A lawyer is not regularly provided; however, a legally experienced person is provided in all cases of legal guardianship as an independent legal consultant to the patient. Judges can allow treatment against the current will of persons under guardianship only if they pose a severe danger to their own health and do not have insight into that risk due to mental illness. Orders of physical restraint for more than 30 min have to be controlled by a judge (except during nighttime). In most federal states, the laws allow compulsory admission in an “open” setting.