Another Pyrrhic victory of German psychiatry

Bad news from Germany

On the 27th of July the Federal Constitutional Court, the supreme court in Germany, in an outrageous decision declared psychiatric torture to be a constitutional right and duty of the state as a consequence of its protective obligations.

The result is that this court and therefore Germany as a state breaks jus cogens, as the prohibition of torture is one of the few absolute and non-derogable human rights, a peremptory norm of customary international law.
By justifying its decision, the court perverts the citizens‘ right to liberty (Article 2 of our constitution) into a right of the state. The institution to protect the constitution turned out to be the undertaker of the constitution.

The court made this decision despite three months earlier having received the logical proof why such a decision would violate the prohibition of torture, see „Proof“ below.
It made this decision concerning people under guardianship. Of course without a psychiatric advanced directive (PAD) prohibiting any psychiatric assessment (see our special PAD template „PatVerfue“), it is easy and arbitrary to be diagnosed as „mentally ill“ and put under guardianship against ones will by a court using such an expert opinion. So every adult without our PAD is at any time at risk of being a victim of cruel, inhuman or degrading treatment.

We regard this decision as a huge step backward compared to the decision by the same court in 2011 when it ruled that all previous laws for forced psychiatric treatment since the 65 years of the existence of this state had been illegal, read about it here: https://www.zwangspsychiatrie.de/good-news-from-the-supreme-court-in-germany
Also in this new decision, it ruled that the CRPD has effectively become null and void. The courts stated explicitly that the CRPD committees report about Germany is non-binding and can be ignored, see Article 88, 89, 90 of the supreme courts ruling. For many years we expect that it will be impossible to find any support to override this assessment of our highest court by political means, and of course we accept that the UN has no (military) force to do it instead.

The positive aspect of the courts decision is that it explicitly stated that an advance medical directive of someone not under guardianship is the exception in its ruling. That strengthens our legal position when advocating the use of our PAD (see our special PAD template „PatVerfue„). Our conclusion of this new situation is:
We will further develop our PatVerfue into a „fortress“. It protects everyone in it who has a PatVerfue and who use it appropriately, whereas every adult outside the „fortress“ is at more or less high risk of being a victim of psychiatric coercion and bodily harm by forced treatment and we would be unable to help them. Therefore we will increase our efforts to promote our PatVerfue and in addition we will establish a legal protection fund to ensure that in the event of any legal challenge, the financial means to win would be available.

So the psychiatric system has again only achieved a Pyrrhic victory! The more harsh and brutal it executes its power, the more it drives people into our „fortress“. There they will be lost for the system anyway.
And if the system abstains from using its power, it is also good, so we are in a win-win situation 🙂
Having the possibility to protect oneself from psychiatric coercion in a legally binding way contradicts the very idea of an alleged objective „mental illness“ and substantially erodes the power of psychiatry.
What a ridiculous „illness“ if you are immunised from it by a mere paper document.

Best regards
rene talbot
(Secretary of IAAPA and member of the board of a national German user and survivor organization)

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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 lilelyhood 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.“
[Source: http://mdac.info/sites/mdac.info/files/march_4_torture.pdf]