12 - Respect for the Will and Preferences of People with Mental Disorders in German Law

Summary

Introduction

This article provides an overview of German guardianship law and Mental Health Assistance Laws (Psychisch-Kranken-Hilfe-Gesetze), with a special focus on the rights of people with mental disorders. Two legal systems in Germany are relevant in this context: the law on guardianship, which is part of civil law and the Mental Health Assistance Laws, which are part of public law.

Laws regulating forensic psychiatry will only be mentioned in passing. The law on guardianship has been reformed recently and the reform entered into force on 1 January 2023. This contribution focuses on the reformed law. To get a better sense of the regulations discussed in this chapter, it is helpful to briefly consider the nature of the legal system and legal tradition under discussion. The German law system is a civil law system, which is based on Roman-Germanic legal codes and takes as its starting point codified and written law. The logic of civil law systems differs from that of common law systems. Whereas in common law systems one moves from individual cases to general principles and laws, in civil law systems one moves in the opposite direction: from general laws to individual cases. Accordingly, it is possible to derive from the law what is lawful in an individual case. As an independent institution within the administration of justice, the judge is responsible for interpreting the law and applying it to individual cases. Courts thus resolve disputes over the application of codified laws.

In Germany, the Basic Law (or constitution) provides for fundamental individual rights, such as the rights to freedom, life and physical integrity. These rights may be interfered with only based on a written or codified law (Art. 2, para 2, sentence 1, GG1). The Federal Constitutional Court has the responsibility to ensure that laws and government policies are compliant with the constitution. If there is a dispute about the compliance of federal or state laws or policies with the constitution, the case can be brought before the Federal Constitutional Court. All federal and regional state bodies and legislatures are bound by its decisions and only the Federal Constitutional Court has the authority to declare federal and state laws and policies unconstitutional.