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FIFTH SECTION

Application no. 3098/08
Helga ZOCK
against Germany
lodged on 17 January 2008

STATEMENT OF FACTS

The applicant, Ms Helga Zock, is a German national who was born in 1937, lives in Berlin and worked as a business economist before retirement. She was represented before the Court by Mr G. Noack, a lawyer practising in Berlin.

A.  The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

1.  Background to the case

From 1975 onwards the applicant has periodically shown signs of a psychiatric condition.

On 17 November 1997 the applicant allegedly set up a living will, (psychiatrisches Testament) in which she unconditionally refused any future treatment with antipsychotics (Neuroleptika).

On 8 May 2000 the applicant was placed under custodianship by Berlin Mitte District Court. A staff member, M., of the Pankow District Office (Bezirksamt), Department of Social Affairs and Legal Custodianship, became her appointed custodian.

On 24 September 2001 the duration of the custodianship for health affairs and the right to determine the applicant’s residence in regard to health treatment was prolonged.

2.  Proceedings at issue

On 17 October 2001 the custodian applied for a court decision regarding an involuntary commitment of the applicant for medical treatment on the basis of Article 1906 of the Civil Code with the Mitte District Court (file no. 54 XVII Z 148). He motivated his application with recent changes in the behaviour of the applicant. She had failed to visit her ambulant day care clinic from 8 October onwards. Informed by the clinic the custodian had unsuccessfully tried to contact the applicant at her home. He had noticed broken tiles lying in front of the applicant’s apartment. Neighbours informed him of noise by the applicant, unfriendly behaviour, loud cries and confused talk. Later the day, the applicant called the custodian in his office introducing herself as Professor Zockowa, accusing him of having stolen - among other items - parts of her toilet seat and having interfered with her TV set in such a way that she received only pornographic programs.

On 15 November 2001 a psychiatrist of the Pankow District Office shortly met and talked to the applicant in front of the applicant’s apartment house. The doctor handed in a summary report recommending an involuntary commitment to Mitte District Court. According to her the applicant showed signs of strong aggression and a disrupted order of day and night activity. The applicant would be exposed to further health risks if she were not treated.

On 21 November 2001 the court held a hearing at the applicant’s home. The competent judge was only able to talk to the applicant through her closed apartment door as the applicant declined to open. The door was pasted with letters and comments from the applicant. Neighbours present mentioned that the applicant denied everybody, even her sister, access to her apartment.

Her lawyer argued that the motion for a commitment order was phrased too vaguely as the strict necessity of an involuntary commitment instead of an ambulant treatment was not sufficiently demonstrated. Furthermore, the kind of envisaged treatment was only broadly described. According to him it was legally impossible to confine the applicant in order to facilitate a treatment with antipsychotic drugs (Neuroleptika) as the applicant had unambiguously refused to be ever treated with these drugs in her will in 1997. He pointed out, that at that time the applicant was still fully competent to regulate her affairs.

On 28 November 2001 the Mitte District Court ordered an involuntary commitment of the applicant to a closed ward of a psychiatric hospital for the purpose of medical treatment until 7 January 2002.

On 7 December 2001 the Berlin Regional Court (file no. 83 T 614/01) altered the District Court’s decision on appeal. Upholding the involuntary commitment order in substance, the appeal court modified the character of the decision into an interim injunction valid until 21 December 2001 and remitted the case for gathering of further medical evidence. The court found the medical report of 15 November 2001 insufficient as basis for an involuntary commitment order as the psychiatrist of Pankow District Office did not meet the formal requirements of section 70 e paragraph 1 of the Act on Non-Contentious Jurisdiction.

On 11 December 2001 the applicant was forcefully hospitalised in St. Joseph hospital and received medication with antipsychotics. According to the hospital’s report on the applicant’s health at reception she had thrown objects out of the windows of her apartment at the time of the forced hospitalisation.

On 12 December 2001 the Mitte District Court appointed a junior doctor (Ärztin im Praktikum) of St. Joseph hospital to prepare a medical report on the current psychiatric situation of the applicant.

On 17 December 2001 the applicant filed an immediate appeal against the decision of Berlin Regional Court (83 T 614/01) with the Berlin Court of Appeal (1 W 638/01), which allegedly has not been decided yet.

On 18 December 2001 the junior doctor handed in a psychiatric report on the applicant that was co-signed by the junior doctor’s superiors, a senior and the chief medical psychiatrist. The doctor diagnosed the applicant with an acute exacerbation of her known schizoaffective disorder (schizoaffektive Psychose) with progressive chronification. The doctor noted that the applicant had still contacts to an organisation which was critical to antipsychotics and who had made her sign under unclear circumstances a living will in 1997. The applicant was still influenced in her attitude and conduct by this organisation. Due to her illness the applicant was unable to have any comprehension of her state of health, nor the necessity of treatment. Furthermore, even if she understood her condition, she would not be able to act accordingly and would not be able to co-operate with doctors. Without treatment further misbehaviour and health deterioration was likely.

On 21 December 2001 the Mitte District Court decided in the proceedings that had been remitted from the appeal court and re-issued an involuntary commitment ordered valid until 7 February 2002 “to the applicant’s own benefit” on the basis of the medical evidence.

On 8 January 2002 the custodian replied to the applicant’s immediate appeal concerning the necessity of the treatment. He described how the applicant had acutely suffered from hallucinations and paranoia that had caused extreme anxiety and fear in the applicant. He reminded the court that in January 2001 the applicant had agreed to medical treatment with antipsychotic drugs. According to his longstanding, personal observation of the applicant her personality changed between “good” phases – when she appeared orderly and well-dressed and used a refined vocabulary – and “exacerbated” phases when the applicant used most vulgar, sexualized expressions and could not care for herself.

On 10 January 2002 the applicant appealed the decision of Mitte District Court claiming that the court had not properly balanced her interest in her liberty with the prospective benefits of the forced medical treatment.

By mid-January 2002 the applicant’s psychiatric condition had improved under the medical treatment in question.

On 28 January 2002 the senior psychiatrist of the ward of St. Joseph hospital, where the applicant was treated, supported and upheld the expertise given by the junior doctor on 12 December 2001.

At the end of January 2002 the applicant suffered from side-effects of the medication with Haloperidol with which she had been treated from December until mid-January. She was allegedly bed-ridden, not responsive and had developed a motor tremor, which resembled a Parkinson illness. She additionally suffered from problems to the circulatory system allegedly induced either by the drug Haloperidol or by Risperdone which was applied from the end of January until the beginning of February. These impairments to her motor skills eased when the treatment with the antipsychotic Leponex started in mid-February. As the potential side-effects of this drug include life-threatening changes of the patient’s blood composition the applicant’s blood composition was closely monitored in hospital.

On 7 February 2002 the applicant was released from the closed ward of the St. Joseph hospital due to the expiration of the involuntary commitment order, but she had to remain in hospital to combat the physiological side-effects of the drug treatment.

On 15 March 2002 she was released from the hospital, received further ambulant treatment and was cared for by her sister. In the doctor’s letter on the occasion of her release, the doctor stated that her motoric skills were almost back to normal. Her blood composition had not been affected by the medication.

On 28 April 2003 the applicant had a court hearing concerning a subsequent involuntary commitment order.

On 5 June 2003 the Berlin Regional Court (83 T 118/02) dismissed the the applicant’s appeal. Although the court found formal deficiencies in the Mitte District Court’s evidence procurement, it upheld the decision in substance referring to a recent medical report of 5 May 2003 procured in the proceedings concerning the subsequent commitment order. According to this medical evidence the treatment with Leponox was relatively harmless and the benefits far outweighed the risks. The court affirmed that the applicant had been unable to consent to the treatment due to her illness at the time of the Mitte District Court’s decision on 21 December 2001.

On 25 July 2003 the applicant filed a further appeal arguing that the Berlin Regional Court had mixed two separate proceedings concerning involuntary commitments. As the medical treatment with Leponox or other antipsychotics was dangerous and might cause severe and lasting side-effects, the treatment had necessitated a prior court approval pursuant to Article 1904 of the Civil Code and could not be based on Article 1906 of the Civil Code alone.

On 23 January 2007 the Berlin Court of Appeal (1 W 430/03) dismissed her appeal. Invoking section 70 e of the Act on Non-Contentious Jurisdiction the Berlin Court of Appeals held that the junior doctor had not been experienced enough to report on the medical condition of the applicant. However, this deficiency did not affect the correctness of the decision in substance as later medical evidence conformed to the prior evaluation. The involuntary confinement together with the medication was also proportional to the pursued aims. In this respect the Court of Appeal referred to the principles established in a leading decision of the Federal Court of Justice of 1 February 2006 (-XII ZB 236/05-). The commitment had been necessary as the applicant posed a danger to herself as well as to others by having thrown objects out of her window and disturbing the neighbours with noise. The side-effects of the medication were not of a permanent nature and the benefits of the treatment allowed the applicant to regain her freedom and keep her autonomy at least for some time. The fact that the decision of the Mitte District Court did not specify the concrete medication and their order, would not render the court decision void as section 70 f of the Act on Non-Contentious Jurisdiction does not require so. The stricter requirements laid down by the Federal Court of Justice in its decision 2006 could not be met by the Mitte District Court in 2001.

On 9 March 2007 the applicant lodged a constitutional complaint with the Federal Constitutional Court.

On 9 May 2007 the Berlin Court of Appeal rejected an appeal lodged by the applicant claiming that she had not had a sufficient opportunity to make submissions (Anhörungsrüge).

On 10 July 2007 the Federal Constitutional Court, in a panel of three judges, decided not to review the constitutional complaint. The decision was served on the applicant on 17 July 2007.

B.  Relevant domestic law and practice

1.  Relevant provisions of the Civil Code

“Section 1904

Approval of the custodianship court in the case of medical measures

(1) The consent of the custodian to an examination of the state of health of the person under custodianship, to therapeutic treatment or to an operation is subject to the approval of the custodianship court if the justified danger exists that the person under custodianship will die or will suffer serious injury to his health that lasts for a long period by reason of the measure. Without the approval, the measure may be carried out only if delay entails danger.

(...)

Section 1906

Approval of the custodianship court with regard to accommodation

(1) It is admissible for the custodian to put the person under custodianship in accommodation that is associated with deprivation of liberty only as long as this is necessary for the best interests of the person under custodianship because

1.  by reason of a mental illness or mental or psychological handicap of the person under custodianship there is a danger that he will kill himself or cause substantial damage to his own health, or

2.  an examination of the state of health of the person under custodianship, therapeutic treatment or an operation is necessary without which the accommodation of the person under custodianship cannot be carried out and the person under custodianship, by reason of a mental illness or mental or psychological handicap, cannot recognise the necessity of the accommodation or cannot act in accordance with this realisation.

(2) The accommodation is admissible only with the approval of the custodianship court. Without the approval, the accommodation is admissible only if delay entails risk; the approval must thereafter be obtained without undue delay.

(3) The custodian must terminate the accommodation if its requirements cease to be satisfied. He must notify the custodianship court of the termination of the accommodation.”

2.  Relevant provisions of the Act on Non-Contentious Jurisdiction

According to section 70e §1 of this Act the custodianship court is required to procure for a medical expert report prior to issuing an involuntary commitment order according to section 70 § 1 sentence 2 No. 1 and 3 of this Act. The expert has to examine or question the person in question. As a rule the doctor shall be a psychiatric specialist, in any case he must have gained professional experience in psychiatry.

Section 70f regulates the minimal content of an involuntary commitment order. The commitment order must specify the aggrieved person in question, the kind of commitment, the date when the commitment expires if not previously extended – the length of the commitment may not exceed one year, or in case of an obvious need for a longer commitment no more than two years after the court decision – and must finally contain a notice regarding the legal appeal. According to section 70f § 2 the decision has to be motivated.

According to section 70h of this Act an interim injunction in proceedings concerning involuntary commitments may be issued. An interim injunction cannot remain valid for more than six weeks, but may be extended up to three months after the hearing of an expert.

The Act on Non-Contentious Jurisdiction became void on 1 September 2009. Similar provisions form now part of the Act on Family Affairs and Matters of Non - Contentious Litigation (Gesetz über das Verfahren in Familiensachen und in den Angelegenheiten der freiwilligen Gerichtsbarkeit), in particular section 312 et seq..

3.  Case-law of the Federal Constitutional Court and the Federal Court of Justice regarding involuntary commitment orders which encompass forced medical treatment

In a landmark decision of 7 October 1981 - 2 BvR 1194/80 - the Federal Constitutional Court decided on the constitutional limitations of involuntary commitment to a psychiatric hospital. The Court affirmed that authorities have legitimate powers to commit persons who are either unable to make up their mind or act accordingly to psychiatric hospitals, where their freedom of movement is restricted. Clear evidence of an imminent danger either to the public or to the patient was a prerequisite to the commitment as well as strict adherence to the procedural safeguards, as provided by statutory law. However, the “natural” will of a patient not to be treated would prevail in cases where either the dangers posed to the public or to the person concerned were not so prominent. Within these limitations the Court acknowledged a “freedom to remain ill”.

The Federal Court of Justice explicitly followed the approach of the Federal Constitutional Court in two decisions, of 11 October 2000 - XII ZB 69/00 - and of 1 February 2006 - XII ZB 236/05 -, concerning forced medication. In its 2006 decision the Court of Justice restricted the involuntary commitment order to cases where significant dangers to the public or the health of the patient clearly outweighed the infringement on the patient’s liberty. Additionally, the dangers of side-effects of the medical treatment with antipsychotics had to be taken strictly into account. Only when the benefits of the treatment clearly outbalanced the dangers of the treatment, an involuntary commitment order based on Article 1906 of the Civil Code could be justified. In order to guarantee judicial control, the medication and as may be the case the alternative medication had to be prescribed in detail in the commitment order.

In its decision of 23 March 2011 - 2 BvR 882/09 - the Federal Constitutional Court further developed its case-law on involuntary commitments including forced medication with antipsychotics. It classified the deprivation of liberty combined with the forced medical treatment as a particularly severe infringement of the constitutional right to bodily integrity and self-determination. However, the legislator could legally provide for such infringements under certain conditions. The legitimate interest of the public in the prevention of crime was not a sufficient reason for forced medication, as the deprivation of liberty of the potential perpetrator would be sufficient to prevent that danger. The Court repeated its concept of “freedom to remain ill” which had to be respected even if treatment would be advisable. Infringements of the right to self-determination and freedom from bodily harm could only be justified in cases in which persons were completely unable to realise their illness, the extent of the illness and therefore to balance the benefits with the risks of the treatment due to their illness. The Court further laid down requirements to ensure the effectiveness of judicial proceedings.

COMPLAINTS

The applicant complains under Articles 5 and 2 of the Convention about forced medication with antipsychotic drugs she received during her involuntarily commitment to a psychiatric hospital. She particularly emphasises that she had expressively declined to be ever treated with antipsychotic drugs in her living will in 1997. Therefore, the court decisions here at issue violated her right to liberty and disregarded her right to self-determination. This right included the right to tolerate an illness and not to be forced to undergo medical treatment. Article 1906 of the Civil Codes was also wrongly applied in her case. The medical treatment was not “necessary”, as her situation in December 2001 was neither life-threatening nor was she posing a danger to others.

She further points out that the wording of Article 1906 of the Civil Code is too vague to empower hospitals to antipsychotic drug treatment without any further judicial control. In her view Article 1904 of the Civil Code should apply to treatment with antipsychotics. Antipsychotic drugs have and are intended to have an impact on the very essence of the patient’s personality (Kernbereich des Persönlichkeitsrechts). They influence the patient’s ability to form his will and thereby change the personality of the patient.

QUESTIONS TO THE PARTIES

Did the applicant’s medical treatment with antipsychotics (Neuroleptika) contrary to her living will (psychiatrisches Testament) and contrary to her expressed natural will interfere with the applicant’s right to respect for her private within the meaning of Article 8 § 1 of the Convention?

If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2?