Legislatures and courts worldwide, when they consider medical treatment and other measures in the context of intellectual disabilities, will require to take account of a decision dated 26th July 2016 and published 25th August 2016 by the First Senate of the German Federal Constitutional Court (Bundesverfassungsgericht). This decision by eight justices, without any dissenting opinion, has significance beyond the 80,000,000 population within the jurisdiction of that court. The impressive and careful reasoning of the court could well be referred to comparatively if similar issues were to arise in any other jurisdiction. The decision has the potential to contribute significantly to any assessment, in relation to the UN Convention on the Rights of Persons with Disabilities (“the CRPD”), of the role played by the practice of contracting states in the interpretation of international treaties, accorded by Article 31 of the Vienna Convention on the Law of Treaties; and to any assessment of the relative weight to be given to the views of committees which have competence to offer interpretations of human rights treaties, including the UN Committee on the Rights of Persons with Disabilities (“the UN Committee”).
At national level, the decision remedies a lacuna in German law by permitting medical treatment of people in the situation of a woman who opposed it. At international level, it is groundbreaking in claiming that her situation fell also within a lacuna in the reports, guidelines and recommendations of the UN Committee, and that the court’s decision is accordingly not inconsistent with the position of the UN Committee in terms of those documents. Those of us who have engaged with the UN Committee, and who have benefited from the willing availability of its members to discuss, cannot doubt that the UN Committee regards its published views as explicitly prohibiting an outcome such as that in this German case. Another view, however, would be that the German court has identified and addressed a blind spot in the Committee’s understanding of the realities of some intellectual disabilities. Two opposing and irreconcilable interpretations of the CRPD have now been authoritatively placed in the international public domain.
The decision also gives an insight into the role of a constitutional court in jurisdictions which have one. That insight could form an interesting footnote to the masterly and fascinating exposition by Lord Neuberger, referred to in the Scotland section of this Newsletter, of trends over the last two decades towards de facto requirements for the UK Supreme Court to adopt a function which, to a modest extent, could be seen as analogous to that of a formally constituted constitutional court.
The full citation of the decision is "Bundesverfassungsgericht, Beschluss (des ersten Senats) vom 26. Juli 2016 - 1 BvL 8/15". It is available in German here. A press release in English which describes the decision in a helpful degree of detail is available here1 .
One comment, however, upon the press release is that it uses “custodianship” to translate the German “Betreuung” (and “custodian” for “Betreuer”). It would be wrong to see Betreuung as implying a form of custody, and a more traditional translation would be “guardianship” and “guardian”. Thus the title in English of the “Weltkongress Betreuungsrecht”, reported on by Alex in the October 2016 Newsletter, was “World Congress on Adult Guardianship”. However, the glossary on the Congress website offered “courtappointed legal representative”, reflecting an increasing international move away from the sometimes unacceptable connotations of the traditional terminology2 . In this report I use “Betreuung” and “Betreuer”. Some case names and citations are given as they appear in the published decision of the First Senate.
The decision uses the terms “free will” and “natural will”. The former is understood to mean an exercise and expression of will by a person with competence in relation to the matter in question, and thus being legally valid where it is capable of having legal significance. The latter is understood to be any wish or will that is consciously and wilfully expressed or made known to others, notwithstanding that it might lack legal validity because it was not capably formulated and communicated. The decision also refers to “original will” and “when necessary supported will”. In section 6 of this report I describe further, and comment upon, aspects of the decision as to the description, use and considerable significance of these terms.
2. Facts and procedural history
The woman concerned in the proceedings suffered from a “schizoaffective psychosis”. In consequence, a Betreuer3 had been appointed to her in April 2014. In September 2014 she was briefly admitted to a care facility. While there, she declined to take medications prescribed to treat an auto-immune disorder. She refused to eat. She expressed the intent to commit suicide. In accordance with various orders of the court, she was transferred to a closed dementia unit at a clinic, and treated with medication “through coercive medical measures”.
Further examination showed that the woman also suffered from breast cancer. She was described as being by then severely weakened physically, and unable to walk or even to move around with a wheelchair by herself. She was described as being mentally capable of expressing her “natural will”. In response to questions from the court, she repeatedly stated that she did not wish to be treated for her cancer. Her Betreuer then applied to the court to authorise extension of her placement in her current accommodation, and to approve coercive measures, particularly to treat her breast cancer.
The court refused that application. It held that the legal requirements to permit placement in accommodation “associated with the deprivation of liberty” and for coercive medical treatment were not satisfied. The Betreuer appealed unsuccessfully to the regional court, and then on points of law to the Federal Court of Justice. The Federal Court of Justice stayed the proceedings and referred to the Federal Constitutional Court the question of whether relevant legislation was compatible with the German Basic Law (Grundgesetz – “GG”).
3. Issues and decision: German law
The point of law at issue was that the law of Betreuung under the German Civil Code provides that coercive medical treatment may only be given to persons who have a Betreuer if they are accommodated in a closed facility “associated with the deprivation of liberty”. The First Senate described as “constitutionally unobjectionable” the intention of the legislature in establishing a legal basis for coercive medical treatment that is applicable only to persons placed by their Betreuer in a closed facility4 . Persons, such as the woman at the centre of this case, who have a Betreuer, who are already within in-patient treatment, and who are factually not capable of physically removing themselves, cannot be placed in accommodation “associated with the deprivation of liberty”. In consequence, they cannot be subjected to coercive medical treatment under the provisions described above. Accordingly, even if such persons would otherwise undoubtedly meet all of the substantive conditions for treatment, in that situation they could not be treated coercively. I refer to such persons as “persons in the woman’s situation”.
It was argued, successfully, that this situation contravened the state’s duty of protection under the GG. The GG also contains a general equality and anti-discrimination clause, which was referred to by almost all of the interveners in the case before the First Senate: disability groups, lawyers, charities, psychiatrists and so forth. The Association of Psychiatry Users was an exception. It argued that the problem was that the relevant provisions permitted deprivation of liberty and compulsory medical treatment at all. The court did not address the discrimination point. It determined that there was unconstitutionality based on the state’s positive obligation to protect the health of persons in the woman’s situation.
The woman to whom the proceedings related was deceased by the time the decision was made. The First Senate held that the referral to the Constitutional Court was not rendered inadmissible by her death. It held that the function of judicial review, directed to clarifying the law and bringing about satisfaction, can in exceptional circumstances justify answering a referred question even after an event that would normally resolve the matter, if a sufficiently weighty and fundamental need for clarification persisted. The First Senate did however sound the warning that the question of when an interest in legal protection survived such an event would depend on the circumstances of each individual case.
The court held that it violated the state’s duty of protection under the GG that persons who have a Betreuer, who are not capable of forming a “free will”, should be entirely excluded from necessary medical treatment if giving that treatment should conflict with their “natural will”, where they cannot be placed in accommodation “associated with the deprivation of liberty” because the requirements for placement in such accommodation are not satisfied, and where such placement is a precondition for giving treatment contrary to the “natural will” of the person. The First Senate ruled that this deficit was unconstitutional. It would be within the discretion of the legislature how to remedy the deficit, but the court ordered that it must promptly be remedied. It further ordered that in the meantime, because the current legal situation in effect entirely denied the possibility of treatment for persons in the woman’s situation even in the face of the threat of serious or life-threatening damage to their health, the existing provisions permitting non-consensual treatment should apply to this group of people. “The state community cannot simply abandon helpless persons to their own devices”.
In reaching this decision, the First Senate acknowledged that giving treatment against the “natural will” of a person who has a Betreuer conflicts with the person’s right of selfdetermination, and with the fundamental right to physical integrity. Under the GG, all persons are, as a rule, free to make their own decisions regarding any interferences with their physical integrity, and how to deal with their own health. In deciding whether and to what extent to allow an illness to be diagnosed and treated, they are not required to follow a standard of objective reasonableness. However, the state’s duty of protection takes on special weight in the case of a serious threat to the health of a person who is unable to protect himself or herself. The state’s duty of protection outweighs the person’s right to self-determination and to physical integrity, where the following criteria apply: (a) no special treatment risks are associated with the medical measure necessary to avert the threat to health, and (b) there is no viable reason to believe that the refusal of treatment reflects “the original free will” of the person who has a Betreuer (which I interpret as meaning the competent will of the person, prior to loss of relevant competence).
4. Issues and decision: international obligations
In a passage commencing at paragraph 90 of the decision, the First Senate concluded that no international obligations conflicted with the state’s obligation to provide protection to a person who has a Betreuer and who is vulnerable and unable to form a “free will”, in the circumstances addressed in the case. Coercive treatment in such circumstances, the court held, was consistent with the CRPD, the European Convention on Human Rights (“ECHR”), and the case-law of the European Court of Human Rights.
In Germany the CRPD has the force of law, and can be used as an interpretative aid when defining the content and scope of basic rights under the German Constitution. The Federal Constitutional court on 23rd March 2011 had held that the CRPD did not suggest a different outcome. The CRPD includes provisions (notably in Article 12) aimed at guaranteeing and strengthening the autonomy of persons with disabilities. However, in the court’s understanding of these provisions, they did not impose any general prohibition of measures which are taken against the “natural will” of a person with a disability, where that is done on the basis of the person’s limited ability to make decisions, and where that limitation of ability is the result of an illness.
The court had held that: “The context of Art. 12(4) CRPD, which relates to measures which limit the exercise of a person’s legal capacity, shows that the Convention does not impose a general prohibition of such measures, but rather limits their admissibility, inter alia by requiring the contracting states to develop feasible safeguards against conflicts of interests, abuse, and to guarantee proportionality” (para 88 of the decision, again in informal translation, with emphasis added).
Since the decision of 23rd March 2011 had been issued, the UN Committee had promulgated various reports, guidelines and recommendations regarding the interpretation of the CRPD and the legal situation in Germany. As to the effect of such reports, guidelines and recommendations upon the decision of 23rd March 2011, the court opined that they “do not lead to a different conclusion”. The court pointed out that the views of a committee that has competence to interpret a human rights treaty are to be given significant weight, but they are not binding on international or national courts under international law5 . On the views under the additional protocol to the ICCPR, the court noted General Comment No 33 of the Human Rights Committee6 . The court held that such committees do not have the competence to develop international treaties beyond the agreements and practice of the contracting states, having regard to Art. 31 of the Vienna Convention on the Law of Treaties, which codifies customary international law7 . The court conceded that it was an open question whether principles which have been developed in the context of other international treaties apply to all declarations of the UN Committee. It is however clear, the court found, that Article 34 of the CRPD does not confer on the UN Committee a mandate to provide a binding interpretation of the CRPD. When interpreting a treaty, the court held that a national court should nevertheless engage in good faith with the views of a competent international treaty body, but it is not obliged to adopt them8.
In any event, the court held that, as regards the substance of the views of the UN Committee, those views would not exclude medical treatment without a person’s consent where this is required under German constitutional law. The Committee had in its concluding observations of 13 May 2015 on the first German state report (UN Doc. CRPD/C/DEU/CO/1) criticised the provisions of the law on Betreuung in the German Civil Code, by referring to the UN Committee’s General Comment No. 1. In particular, in General Comment No. 1 the Committee demanded the abolition of all substitute decision-making, and replacement with a system of supported decision-making. However, the court considered that the UN Committee’s criticism “remains unspecific” with regard to the issues in this case concerning medical treatment without consent. In particular, the court considered that the UN Committee remained silent with regard to the question that was relevant in the present case, namely medical emergencies in which the “free will" of a disabled person is completely absent.
The court took the view that a corresponding approach applied to the guidelines of the Committee regarding the interpretation of Article 14 of the CRPD (of September 2015). In those guidelines the Committee had emphasised that no healthcare measures should be taken in respect of persons with disabilities that are not based on the free and informed consent of the person concerned. The Committee asserted that states should refrain from any form of compulsory treatment. However, the court held that here also the Committee had not provided an answer to the question of what, according to its understanding of the treaty provisions, should happen to persons who cannot form a “free will” and who are in a vulnerable position. The court held that, even taking into account the views of the UN Committee, there were no good reasons under the text and spirit of the CRPD to abandon such persons to their fate, and to conclude that the Convention is opposed to compulsory medical treatment where this is constitutionally required under strictly regulated circumstances. The court held that this was so, in particular, because the requirements of German constitutional law and of the law on Betreuung, in compliance with the CRPD, give precedence to the will of the disabled person, and where necessary to the will to be determined with support.
The court considered relevant provisions of the ECHR, and in particular Article 8, which, according to the jurisprudence of the European Court of Human Rights, guarantees the right to determine for oneself how to live one’s life, including the possibility to engage in activities that are physically harmful or dangerous. With reference to these provisions, the court held that the medical treatment of competent adult patients against their wishes would amount to an interference with the person’s physical integrity, and therefore with their Article 8 rights, even where refusal would lead to the person’s death. The court referred to Lambert v France9 ; and Pretty v United Kingdom10. However, also by reference to Lambert v France, the court noted that states have a margin of appreciation in this respect.
The court held that it is a prerequisite for the obligation of the state and of society to accept a decision that is objectively unreasonable, and which could result in death, that the decision is based on the “free will” of an adult person who has mental capacity. If, on the other hand, a person does not take a decision voluntarily and with full understanding of the circumstances, the court held that the European Court of Human Rights imposes an obligation on states (under Article 2 of ECHR) to prevent the person from putting his or her life at risk11. Where a patient refuses a medically indicated treatment with the consequence that his or her life is put at risk, the European Court of Human Rights imposes on the state the obligation to take adequate precautions to ensure that – in cases where there is reason to believe that the person lacks “free will” – the relevant medical practitioners investigate further the capacity of the person concerned12. The court concluded that compulsory treatment required by the German Constitution under the conditions addressed in the decision, of persons who are vulnerable, does not conflict with obligations under Articles 2 or 8 of ECHR.
5. Comment: “free and informed consent”
In a crucial sentence, the decision of 26th July 2016 describes the view of the UN Committee as to the effect of Article 14 of the CRPD thus (in informal translation): “As regards persons with disabilities, no measures for the protection of health may be undertaken unless they rest on the free and informed consent of the person concerned”. That could mean two things, in relation to millions of people in the world who, because of their intellectual disabilities, are not capable of “free and informed” consent or dissent. Firstly, it could mean that those people, because they are incapable of “free and informed consent”, should not be provided with any healthcare. That however would contravene the right of persons with disabilities under Article 25 of the CRPD “to the enjoyment of the highest attainable standard of health without discrimination on the basis of disability”. That cannot therefore be the correct interpretation if another interpretation not inconsistent with the provisions of the CRPD is possible. Secondly, it could mean that the requirement for “free and informed consent” applies only to people capable of giving it. If they are capable of such consent to a proposed “measure for the protection of health” (or refusing it), then that measure may not be imposed without consent. But if they are not so capable, the stipulation does not apply to them.
It is unsurprising that the German court should opt for the latter approach. It is also perhaps unsurprising that this outcome should be identified in the context of German language and usage. In English, the meaning of “free … consent” is not obvious: not “free from” something specified, simply “free”. The meaning identified above (and discussed further below) of “free will” does point to a clear meaning: “free” means competent, and legally effective. It must surely be common ground that, in the context of the CRPD of all places, a disability preventing a person from giving competent consent to healthcare treatment, or preventing exercise of legal capacity in any other way, should not disqualify that person from receiving healthcare treatment, or from the benefits and protections of any other exercise of legal capacity.
In the CRPD, “free and informed consent” appears not in Article 14, but in Article 25, part of the first sentence of which is quoted above. The particular requirements of Article 25 include that States Parties should “d. Require health professionals to provide care of the same quality to persons with disabilities as to others, including on the basis of free and informed consent …”. Here again the method of reasoning of the German court is relevant. Healthcare cannot be provided “of the same quality … as to others” if people incapable of giving free and informed consent because of their disabilities should be excluded from receiving it. “Others”, if taken to hospital unconscious following an accident or sudden onset of illness, receive treatment notwithstanding their inability at the time to give “free and informed consent”. If that inability is the consequence of a disability, treatment should still be given.
A key word in this discussion is “include” in the second sentence of Article 1 of the CRPD: “Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others”. People with disabilities across the world still face such barriers, in various ways and degrees. The sustained energy of the UN Committee in confronting reluctance to remove those barriers – wherever it is encountered – is to be absolutely commended, driven as it is by personal experience of their own disabilities. Those are disabilities, the disadvantages of which could ultimately be removed substantially if not entirely by the elimination of such barriers. That holds good for physical, sensory and many intellectual disabilities. In the legal sphere, the support provisions of Article 12(3) of the CRPD should be applied to the maximum extent to enable as many people with intellectual disabilities, in as many matters, as possible to exercise their legal capacity themselves. There will always be people, however, for whom measures relating to the exercise of legal capacity referred to in Article 12(4), will be necessary if (in the words of the German court, translated): “helpless persons” are not to be abandoned ”to their own devices”.
It is here that the word “include” in Article 1 is so significant. Persons with disabilities, for the purposes of the CRPD, are not limited to those whose full and effective participation in society is limited by barriers. It also includes those, albeit a minority, who are in some respects limited by the very nature of their intellectual disabilities. That, for some, means in relation to the exercise of legal capacity. If that were not so, and if they were not included within the provisions of the CRPD, then - as the German court identified – there would be no place for the safeguards in Article 12(4).
6. Comment: The four concepts of “will”
I return to the four concepts, to be found at various points in the decision, of “free will”, “natural will”, “original free will” and “the when necessary-supported-will of the person with a disability”. The decision does not set out clear definitions of any of them. It is understood that the core meanings of the first two are however well established in German law, though there is some marginal ambiguity and scope for debate. As indicated above, and put simply, free will means a competent formation and expression of will, sufficient for a legally valid action or transaction. An action could be consent to (or refusal of) healthcare treatment, or making a Will. A transaction could be entering a contract. Also as indicated above, and again put simply, natural will means any wish or will that is consciously and wilfully expressed or made known to others, notwithstanding that it might lack legal validity because it was not capably formulated and communicated. It could be expressed as an acceptance or refusal of healthcare, but might lack validity as such. Likewise, a purported Will or contract could lack validity.
With these two concepts defined with a degree of confidence, one can move forward to suggest, also with some degree of confidence, that “original free will” means a competent formation and expression of will in the past of a person who may no longer retain such competence, but which remains decisive.
Two aspects of the court’s treatment and use of these three concepts are significant and fascinating. Firstly, the court appears to accept a reality which has always been readily apparent to anyone with experience of engaging with people with even some of the wide and diverse range of intellectual disabilities. The court appears to accept that humanity does not divide neatly into people capable of “free will”, on the one hand, and those incapable of “free will” and able only to communicate expressions of “natural will”, on the other. These concepts are at two ends of a spectrum. The formation and expression of will by different people, by the same person at different times and in different circumstances, or by the same person in relation to different matters, can all be at different points along that spectrum, as well as at one end or the other. Thus, for example, the court refers to “the quality of the natural will”: a particular formation and expression of natural will may be at some point closer to, or further from, the “free will” end of the spectrum.
This leads to the even more significant aspect in the decision, which is the apparent synthesising of these different categories of “will” into a single overall concept of “will”, particularly in a passage where the court elaborates how the legislature must resolve the question of proportionality and give the highest possible weight to the person’s will. My interpretation of that requirement is this. The principle of proportionality must be applied to the question whether, in a particular case, the presumption in favour of a person’s expressed will should be applied and should be decisive, or whether – exceptionally – a person’s expressed will should be overridden. The requirement is that the legislature should provide methodologies for carefully determining whether a person’s “free will” can be identified, or even constructed, so that such “free will” will be decisive.
This echoes the process of “constructing decisions” which I described in the final chapter (Chapter 15: “Constructing Decisions”) of Adult Incapacity, W Green, 2003. That chapter offered a description of the decision-making process required by the newly enacted Adults with Incapacity (Scotland) Act 2000. I described a hierarchy of elements ranging from, at one end, an adult’s present competent decision, through past competent decisions, decisive or at least significant choices, current wishes and feelings, past wishes and feelings, information about the adult from persons closest to the adult, and widening beyond there to significant personal or professional input about the adult, the shared views and ethos of the adult’s family and background, and so forth. Generally, an element earlier in that list should prevail over a later element, unless later elements strongly and persuasively indicate that it would be appropriate for them to prevail. Different aspects of a decision might be derived from different points on the hierarchy. However, while other people may play a role in this process of constructing a decision, the purpose of such a process is to construct the adult’s decision in the matter, not to impose a decision made by someone else.
I write “echoes” advisedly. There is a quantum leap from a process of constructing a decision, to transferring a somewhat similar methodology to a process of identifying and perhaps constructing what is a person’s will, and assessing the quality of that will, in relation to a particular purpose and at a particular time. Constructing a person’s will can be equated with the recommendation in paragraph 21 of General Comment No. 1 that: “Where, after significant efforts have been made, it is not practicable to determine the will and preferences of an individual, the ‘best interpretation of will and preferences’ must replace the ‘best interests’ determinations”. An assessment of the quality of the will thus interpreted or constructed is necessary when there is conflict among a person’s rights, will and preferences in the context of the requirement of Article 12(4) of the CRPD that safeguards must “respect the rights, will and preferences of the person"13.
On this view, one could see this decision of the German Federal Constitutional Court as a significantly progressive step in carrying forward the task of implementing and operationalising the key requirement of Article 12(4) to respect a person’s rights, will and preferences. If respect for a person’s will is to be elevated from “something that is good” to an element actually to be delivered in the world of hard reality, the only way of maximising that respect requires something more than defining ways to travel as far as possible in the direction of identifying or even constructing “will” that in particular circumstances can be categorised as decisive “free will”. If we accept that the purpose here is to set the potential boundary of decisive “free will” as widely as possible, and if doing so is to become effective not only in theory but in day-today practice, it becomes all the more important that this boundary be clearly defined. It becomes essential to define the boundary up to which “will” is decisive, and beyond which, for a particular purpose and in a particular situation, that “will” is of such a quality that respect for a person’s rights, or addressing a situation where there are various incompatible preferences, may require that the person’s will be overridden.
It is in the context of this interplay of the flexible concepts of will, and the need to assess whether identified or even constructed will should be decisive, that the court said that the free will of the person needs to be respected even if it can only be determined by reference to previously expressed views of the person, or based on the quality of the natural will. The court went further when (in Sabine’s translation – see above) it said that: “This can, inter alia, require differentiation as to how much weight should be given to the natural will of the person, depending on how close it comes to the person’s free (or presumed free) will after providing due support”.
We have only this one tantalising reference to this significant further step forward to the concept of “the when-necessary-supported-will of the person with a disability”. Article 12(3) of the CRPD requires states parties to “take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity”. The proper route towards satisfying this requirement has been the topic of considerable discussion. The formula used by the court suggests that the route to providing the support required by Article 12(3) must include strategies for supporting the person’s will. Much work remains to be done to create and operationalise such strategies.
If the above analysis is correct, then the German Federal Constitutional Court is to be congratulated for signposting this significant step forward in the task, shared by the worldwide community, of fulfilling in day-to-day practice the aspirations and promise of the CRPD.