Verdict: No forced medication for remand prisoners

Verdict: No forced medication for remand prisoners

OLG Hamm: The legal basis is far too vague
(jur). The legal basis is far too vague for this, the Higher Regional Court (OLG) Hamm complained in a decision announced on Thursday, March 31, 2016 (file number: 5 Ws 88/16). At the same time, the Federal Constitutional Court raised considerable concerns about the compulsory treatment of mentally ill offenders.

In 2011, the Federal Constitutional Court had already passed the Rhineland-Palatinate (decision of March 23, 2011, ref .: 2 BvR 882/09; JurAgentur notification of April 15, 2011) and the Baden-Württemberg (decision of October 12, 2011, ref. : 2 BvR 633/11; JurAgentur announcement of October 20, 2011) Regulations on the compulsory treatment of mentally ill offenders in the so-called enforcement of measures partially declared unconstitutional. With a decision of February 20, 2013, the Karlsruhe judges then also rejected the laws in Saxony (ref .: 2 BvR 228/12; JurAgentur notification of February 28, 2013).

According to the principles set out here, doctors and courts must accept it if a patient consciously decides against treatment. Only if the patient is incapable of understanding due to illness can compulsory treatment be justified. The prerequisite is that the patient is endangering himself or others or that he can never be released as cured without treatment. Announcement of compulsory treatment and independent control are also necessary.

The Federal Constitutional Court dismissed a complaint against the compulsory treatment in the enforcement of measures in North Rhine-Westphalia with a recently published decision of February 24, 2016 as inadmissible for formal reasons (file number: 2 BvR 2427/14). In their brief explanation, however, the Karlsruhe judges express considerable doubts as to whether the legal foundations are sufficient.

As the OLG Hamm decided, they do not do so with prisoners on remand. In any case, forced treatment with medication is not permitted afterwards.

Specifically, it is about a man who is currently on trial for manslaughter. He has been in custody since September 2015, a verdict has not yet been announced.

During his pre-trial detention, he was treated for four weeks in the psychiatric ward of the Fröndenberg Correctional Hospital. At first, he agreed to give neuroleptics; this is medicines that act on the nervous system and thus inhibit motor activity. When he refused to continue taking the medication, the doctors asked for compulsory treatment: under the influence of the medication, the man was "significantly more accessible and less tense". Now there is “an acute threat to others”.

But in North Rhine-Westphalia there is no sound legal basis for compulsory treatment of remand prisoners "especially with neuroleptics", the OLG decided. For such a serious encroachment on the prisoner's fundamental rights, the Federal Constitutional Court had called for a law that regulates the various measures and their requirements “with sufficient clarity and determination”.

But the North Rhine-Westphalian pre-trial detention law neither names the permissible measures nor regulates the conditions under which they should be permissible, the OLG complained. It is also unclear how the inmate's incapacity to demonstrate can be demonstrated. And finally there was no possibility of a "medical examination independent of the correctional facility", as requested by the Federal Constitutional Court. The decision of the OLG Hamm on March 17, 2016 is already final. (mwo)

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