Is the anticipated consent to treatment in advance directives a solution to coercive treatment in forensic psychiatry?

Abstract

As a result of a Federal Constitutional Court decision on coercive treatment, in its state Law the federal state of Hesse has newly regulated the possibility of coercive treatment (Section 7 Paragraph 2 of the Hesse Law on the Enforcement of Court-ordered Hospital Treatment) and expressly incorporated the observance of a patient’s advance directive as defined by Sections 1901a and 1901b of the German Civil Code (Bürgerliches Gesetzbuch [BGB]). Having been sentenced to hospital order treatment under section 63 of the German Criminal Code (Strafgesetzbuch [StGB]), in the Vitos Haina Forensic Psychiatric Hospital thirteen patients with schizophrenia stated in a patient’s advance directive that they wished to be treated with certain antipsychotic medication in case of a recurring psychotic episode. In particular, the patient’s advance directive stated that this treatment should be compulsory if necessary. Based on a case vignette this article delineates both the motivation of the patients for such a patient’s advance directive as well as the legal limitations and the enforceability of such a patient’s advance directive. There is no prevailing view in the jurisdiction or literature on the utilization of a patient’s advance directive to guarantee an explicitly desired treatment in case of incapacity for consent. This article wishes to highlight the perspectives of those directly affected and to encourage discussion. Being of special interest for forensic psychiatry, these considerations may also be of importance for treatment considerations in general psychiatry.