In what is about to be a big week for the Mental Health Act 1983, with the publication of the independent review of the Act, I read with very considerable interest a judgment of the Second Senate of German Federal Constitutional Court (in 2 BvR 309/15) which has been brought to my attention (the case being decided in July, but the full English translation of the judgment only being made available subsequently).
In this case, the court had to consider the cases of two individuals subject to either seven- point or five- point restraint in psychiatric hospitals, ordered by doctors. The conclusions of the court are perhaps unsurprising, and summarised helpfully in the press release provided at the time of judgment, thus:
The use of physical restraints on patients [in psychiatric hospitals] constitutes an interference with their fundamental right to freedom of the person. This fundamental right, in conjunction with the principle of proportionality, gives rise to strict requirements regarding the justification of such interferences: the legal basis for the interference must be sufficiently specific and satisfy the relevant substantive and procedural requirements. Where physical restraints are not only used as a short-term measure, they constitute a deprivation of liberty for which [the German constitutional ‘Basic Law’] additionally requires, at the procedural level, that the measure be ordered by judicial decision. Where all limbs are physically restrained, and not merely for a short period of time, this qualifies as a separate act of deprivation of liberty, due to the particular weight of the interference, even if the person concerned is already subjected to an ongoing deprivation of liberty; this type of restraint thus requires a separate judicial decision, and is not covered by a judicial order of confinement in a psychiatric hospital. [The Basic Law] obliges the legislature to enact procedural provisions governing judicial orders authorising the use of physical restraints that amount to a deprivation of liberty.
What is of particular interest for those in other jurisdictions are (1) the court’s analysis of the distinction between a restriction upon liberty, and a deprivation of liberty; and (2) the court’s analysis of the implications of the CRPD.
Restriction vs deprivation of liberty
The German Basic Law protects against both restrictions upon and deprivations of liberty. German case-law differentiates between the two based on the intensity of the interference:
- An act constitutes a restriction of liberty if someone is prevented by public authority, against their will, from going to a place, or staying at a place, which would otherwise be (factually and legally) accessible to them.
- An act constitutes a deprivation of liberty, the most serious form of liberty restriction, if it cancels the freedom of movement – that would generally exist under the relevant factual and legal circumstances – in every respect. Deprivation of liberty is characterised by the particular weight of the interference as well as by the duration of the measure, which goes beyond mere short-term application.
The court considered that the:
“use of five-point or seven-point restraints, which entails that all limbs of the person concerned are strapped to a bed, constitutes a deprivation of liberty within the meaning of the [Basic Law], unless it is only applied for a short period of time. A short-term application can generally be presumed where it is foreseeable that the measure will not last longer than approximately half an hour. In the event that the person concerned is strapped to the bed by way of five-point or seven-point restraints, their freedom of movement is completely cancelled, taking away the remaining freedom to move within the closed psychiatric ward – or at least within the respective patient room –, a freedom that had still been available while they were confined in a psychiatric hospital. This type of physical restraint is imposed to keep the persons concerned in their hospital beds, completely unable to move.”
Taking a similar approach to the Strasbourg court in Munjaz v United Kingdom, the court held that total physical restraint for an extended period of time constituted an additional deprivation of liberty, for which additional authority was required, even where the person was lawfully detained. The court noted that:
In the case of five-point or seven-point restraints, the particular intensity of the interference furthermore follows from the fact that the persons concerned experience an intentional interference with their freedom of movement as all the more threatening, the more the relevant situation makes them feel helpless and powerless […]). In addition, interferences that take place during confinement will often affect persons who, due to their psychological constitution, will be particularly sensitive to measures disregarding their will […]. Furthermore, the persons concerned are completely dependent on timely assistance provided by care staff to deal with their bodily needs. Compared to other coercive measures, they therefore generally perceive the use of physical restraints as particularly harmful […]. In addition, even if restraints are applied correctly, there is a risk that the persons concerned suffer damage to their health, such as deep vein thrombosis or pulmonary embolism, due to the prolonged immobilisation […].”
The court considered that it was, in principle, open to the German legislature to authorise the use of five- or seven- point restraints. It considered, first, the German domestic approach by reference to the Basic Law (which, in this, it considered to be compatible with international law, in particular the ECHR), holding that:
73. (a) Freedom of the person is such a high-ranking legal interest that interferences with it are only permissible for particularly weighty reasons […]. The restriction of this freedom must thus always be subjected to a strict review based on the principle of proportionality […]. This applies in particular to preventive interferences that do not serve the purpose of retribution in terms of criminal justice. Such interferences are generally only permissible if they are necessary for the protection of others or the general public […].
74 (b) However, the protection of the persons concerned themselves may also justify a restriction of freedom of the person. The fundamental right to life and physical integrity not only affords individuals a subjective right against state interferences with these legal interests. It also constitutes an objective decision on values enshrined in the Constitution that gives rise to duties of protection on the part of the state. Accordingly, the state is obliged to protect and promote the individual’s right to life. Art. 2(2) first sentence [of the Basic Law] also provides protection against impairments of physical integrity and health […]. It is for the legislature to decide on a concept of protection and to implement it through legislation; even where the legislature is obliged to take measures to protect a legal interest, it still enjoys, in principle, a margin of appreciation and evaluation as well as a leeway to design […]. The duty of care incumbent upon the state and society may thus include the authority to confine persons with mental illnesses in a closed institution against their will, and to physically restrain them, if this is absolutely necessary to avert imminent and serious damage to their health; this applies where persons with mental illnesses are, due to their condition and the resulting lack of mental capacity, not able to comprehend the seriousness of their illness and the necessity of treatment, or if their illness prevents them from accepting treatment despite their understanding of the situation […].
75 (c) According to these standards, the use of physical restraints on confined persons may be justified to avert imminent and serious damage to the health of the persons concerned themselves or other persons such as care staff or doctors.
The court went on to examine in detail the procedural safeguards required, as well as relevant case-law from the ECtHR. It then turned its attention to the CRPD, thus (and building on a previous decisions concerning medical treatment covered here):
91. The provisions of the UN Convention on the Rights of Persons with Disabilities (CRPD) does also not suggest a different conclusion. Firstly, these provisions only have the rank of a federal statute (cf. Act on the Convention of the United Nations of 13 December 2006 on the Rights of Persons with Disabilities as well as on the Optional Protocol of 13 December 2006 to the Convention of the United Nations on the Rights of Persons with Disabilities of 21 December 2008, Federal Law Gazette, Bundesgesetzblatt – BGBl II p. 1419). Secondly, they do not generally rule out the permissibility of the use of physical restraints that goes beyond mere short-term application in substance. Both persons with mental illnesses and persons with drug addictions are persons with disabilities within the meaning of Art. 1(2) CRPD […]. Therefore, coercive measures directed at them fall within the scope of application of the Convention. However, the Federal Constitutional Court has already established that the provisions of the Convention – in particular Art. 12 CRPD –, which aim to safeguard and strengthen the autonomy of persons with disabilities, do not give rise to a general prohibition of measures carried out against the natural will of the persons concerned and tied to their limited capacity for self-determination resulting from their illness […]. Nevertheless, the Convention requires States parties to create appropriate safeguards protecting the persons concerned against conflicts of interest, abuse and disrespect of their rights, and to ensure proportionality […]. Pursuant to Art. 12(4) second sentence CRPD, these safeguards also include that such [coercive] measures “apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body”. In addition, pursuant to Art. 15(2) CRPD, States parties must take all effective legislative, administrative, judicial or other measures to prevent persons with disabilities, on an equal basis with others, from being subjected to torture or cruel, inhuman or degrading treatment or punishment.
91. In its concluding observations on the initial report of Germany, the Committee on the Rights of Persons with Disabilities recommended that Germany carry out a review with a view to formally abolishing all practices regarded as acts of torture, namely prohibit the use of physical and chemical restraints in institutions for persons with disabilities (cf. UN document CRPD/C/DEU/CO/1 of 13 May 2015, p. 6 § 34). In this respect, the Committee refers to the view of the UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment Juan E. Mendéz, according to which any use of restraints – even for a short period of time – can be considered an act of torture and ill-treatment (cf. the report of the UN Special Rapporteur of 1 February 2013, which calls for an absolute ban on the use of physical restraints [UN Doc. A/HRC/22/53, p. 16, 26], available at www.ohchr.org). However, according to Arts. 34 et seq. CRPD, the Committee has no mandate to issue binding interpretations of the text of the Convention. It is also not competent to further develop international conventions beyond the agreements and practices of the treaty parties (cf. Art. 31 of the Vienna Convention on the Law of Treaties of 23 May 1969, UNTS 1155, 331 <340>, BGBl II 1985 p. 926, affirming customary international law; […]). While its statements have significant weight, they are not binding on international tribunals or domestic courts […].
92. In respect of an immediate danger posed by persons with mental illnesses to the life and physical integrity of themselves and of third parties, the blanket assumption that qualifies any type of physical restraint as torture or degrading and inhuman treatment seems to go too far. The medical practitioners who testified in the oral hearing before the Court all agreed that it was not possible to completely forgo the use of physical restraints or functionally equivalent measures in certain situations of immediate danger. The Committee, which also rejects other safety measures such as sedation and seclusion, does not provide any answers, based on its interpretation of the text of the Convention, to the question of how to deal with persons who cannot (or no longer) be reached by means of communication and who pose an immediate danger to themselves or others – in this regard, the Committee mirrors its approach regarding coercive medical treatment […]. In any case, the strict requirements under constitutional law for the use of physical restraints on confined persons – i.e. a sufficiently specific legal basis, procedural safeguards and strict compliance with the principle of proportionality – ensure that the Federal Republic of Germany can meet its obligations under Art. 12(4) in conjunction with Art. 15 CRPD.
I am deliberately avoiding for present purposes the question of whether restraint of the nature described could ever be a good thing in terms of its impact upon the person and their care. This is a very large question indeed.
Concentrating on the narrowly legal questions, the distinction that the judgment draws between restriction and deprivation of liberty is one that may be useful for lawmakers in England and Wales as they seek to draw up a coherent statutory definition for purposes of the Mental Capacity (Amendment). Although determined by reference to German constitutional law principles, not the ECHR, the two here are very similar. The recognition of the fact that authorisation to detain does not simply give carte blanche to restrain is helpfully cast in stark terms – and translated to the analogous position of segregation and seclusion is very timely in England and Wales in light of the CQC’s recently announced investigation.
More broadly, the approach that the Federal Constitutional Court takes to the CRPD and, more particularly, the CRPD Committee is one that is striking in its firmness – and its tone of frustration at the absence of alternative solutions that the Committee are proposing to the hard cases.
On one view, this decision could be seen to be another of the last gasps of the human rights dinosaurs, concerned with procedural rather than substantive protections (akin to the decision of the Strasbourg court in A-MV v Finland). On the other view, the German Federal Constitutional Court could be seen legitimately to be reflecting the fact that there are dilemmas, including at the heart of the CRPD, that are simply not resolvable by assertion.
Above all, perhaps, however, the judgment shows the work that needs to be done that can be done to reduce the number of hard cases – work upon which all concerned can agree, even if they come from very different places. An example of exactly that work is the recent Alternatives to Coercion review published by the University of Melbourne.
 I.e. strapped to a hospital bed, with restraints securing both arms, both legs, the stomach, chest and forehead
 I.e. strapped to a hospital bed, with restraints securing all limbs and the stomach.
 For a very good review of precisely this kind of dilemma, see Kay Wilson’s just published article in the Human Rights Law Review: ‘The Call for the Abolition of Mental Health Law: The Challenges of Suicide, Accidental Death and the Equal Enjoyment of the Right to Life.’