Mental Health Custody Laws
The Mental Health Custody Laws are the statutory regulations in force in the federal states of Germany that govern the placement and treatment of individuals who have been committed by courts during criminal proceedings to a forensic-psychiatric or addiction treatment facility. They form the legal basis for the enforcement of so-called measures of rehabilitation and security, serving public safety as well as the resocialization and treatment of mentally ill or addicted offenders.
Historical Development and Legislative Authority
Initial Situation and Development
The original legal basis for mental health custody was regulated in the Prison Act (StVollzG) of 1977. With the entry into force of Federalism Reform I in 2006, legislative competence in the area of prison law, and thus also for mental health custody, was transferred from the federal government to the federal states. This led to the creation of independent Mental Health Custody Laws in the sixteen federal states.
Legislative jurisdiction of the federal states
Mental health custody is part of penal law and, since 2006, in accordance with Article 74 Section 1 No. 1 of the Basic Law and Article 125a GG (Federalism Reform), falls under the legislative competence of the states. Each federal state has since enacted its own Mental Health Custody Laws, which may differ significantly in detail.
Legal Framework and Structure
Concept and Objectives
Mental Health Custody Laws regulate the handling and placement of individuals who, pursuant to Sections 63 et seq. of the German Criminal Code (StGB), are admitted to an addiction treatment facility (§ 64 StGB) or a psychiatric hospital (§ 63 StGB). The aim of the Mental Health Custody Laws is to provide treatment and security, as well as to protect the public and reintegrate the committed individuals into society.
Scope of Application
The laws apply to individuals for whom a court has ordered a measure of rehabilitation and security, in particular
- placement in a psychiatric hospital (§ 63 StGB),
- placement in an addiction treatment facility (§ 64 StGB),
- in individual cases, also for so-called preventive detention (§ 66 StGB), as regulated by state law.
Key Contents of the Mental Health Custody Laws
Admission and Commitment
The Mental Health Custody Laws regulate the organizational, procedural, and substantive aspects of custody from the time of admission. This includes admission procedures, initial examinations, security measures, transportation, and any obligations to instruct the committed individuals.
Treatment and Care
A central aspect is the duty to provide adequate treatment and care for the committed individuals:
- Treatment mandate: Obligation to provide individualized therapeutic diagnosis and treatment by multidisciplinary teams.
- Legal status of committed individuals: Rights to medical, psychotherapeutic, and socio-educational services, as well as participation and information regarding measures affecting them.
- Therapeutic objectives: Promotion of therapy readiness and preparation for subsequent reintegration.
Security and Order
The Mental Health Custody Laws specify comprehensive security measures to protect the public and the institution:
- Security measures: Regulations regarding structural and organizational security, security personnel, communication, and surveillance.
- Restrictions of liberty: Measures such as rules on leave and visitation, monitoring of mail and telecommunications, room searches, and body searches, each considering proportionality and statutory requirements.
Rights and Duties of Committed Individuals
The laws regulate the balance between restrictions of liberty and the personal rights of committed individuals, particularly:
- Right to lodge complaints: Ability to appeal to courts (usually enforcement chambers) against actions or omissions by the institution.
- Right to contact with the outside world: Mail, phone calls, and visits, possibly subject to restrictions and monitoring.
- Religious practice, leisure, and occupation: Entitlement to access leisure activities, education, and religious services within the secure environment.
Release and Aftercare
- Release procedures: The Mental Health Custody Laws regulate the procedure and requirements for release from custody, including judicial reviews and the preparation of risk assessments.
- Aftercare: Arranging release and transitions to outpatient or inpatient aftercare services for sustainable reintegration and protection from danger.
Oversight Mechanisms and Legal Remedies
- Internal and external oversight: Mental health custody facilities are subject to governmental supervision by the responsible state ministries, in some cases supplemented by independent oversight bodies, such as the state commissioner for mental health custody.
- Legal protection: Committed individuals have access to judicial remedies before the enforcement chambers of the competent regional courts pursuant to Section 109 et seq. of the Prison Act (if adopted into state law) or the corresponding provisions of the Mental Health Custody Laws.
State-specific Differences and Reform Debates
Differences among the federal states
As the power to regulate lies with the states, there are sometimes significant differences regarding
- Range and structure of therapy programs,
- Security requirements (structural and organizational),
- Regulations on relaxation of custody, leave, and outside contacts,
- Procedures for ordering and applying liberty-restricting measures.
Current Reform Approaches and Critique
The Mental Health Custody Laws are regularly at the center of political and social discussion, especially concerning
- the relationship between security and therapy,
- the duration of custody placements,
- ensuring adequate treatment capacity,
- avoiding the placement of persons with low risk,
- safeguarding the fundamental rights of the committed individuals.
Numerous reforms and adjustments have been made in recent years for this reason, for example to improve legal protection, further develop treatment standards, and review the proportionality of placements.
Constitutional Classification and Supreme Court Rulings
The Mental Health Custody Laws must comply with constitutional requirements, in particular those of the Basic Law (including Article 2 Section 2 GG – right to liberty, Article 1 GG – human dignity). The Federal Constitutional Court and state constitutional courts have repeatedly addressed the structure of mental health custody, for example with regard to the proportionality of deprivations of liberty, security measures, and the right to therapy.
Literature and Web Links
- <a href="https://recht.nrw.de/lmi/owa/brtextanzeigen?v_id=10000000000000000697″>Mental Health Custody Act North Rhine-Westphalia (MRVollzG NRW)
- Mental Health Custody Act Bavaria (BayMRVG)
- Bär, H.-L., “Maßregelvollzug: Kommentare und Grundlagen,” Nomos, 2022.
- German Institute for Human Rights: Report “Human Rights in Mental Health Custody,” 2021.
Note: The Mental Health Custody Laws are structured differently from state to state. The above statements provide a general overview and cannot capture all state-specific details.
Frequently Asked Questions
What are the legal foundations regulating mental health custody in Germany?
Mental health custody in Germany is primarily regulated by the individual Mental Health Custody Laws of each federal state, since prison law has fallen within the legislative jurisdiction of the states following the Federalism Reform of 2006. In addition, federal regulations apply, in particular those from the Criminal Code (StGB), which in Sections 61 et seq. StGB regulate the measures of rehabilitation and security, including placement in a psychiatric hospital (§ 63 StGB) or an addiction treatment facility (§ 64 StGB). To implement these measures, the states have enacted their own Mental Health Custody Laws, which in detail set out the requirements, the process, the organization of the facilities, the rights and duties of committed individuals, as well as the procedure for relaxation of custody and release. Different state-specific regulations result in different standards and procedures in the mental health custody system, making it necessary to always check which state law applies in each individual case.
How is the judicial order and review of placement in mental health custody carried out?
Judicial placement into mental health custody occurs during criminal proceedings by the trial court, often with the involvement of psychiatric experts to determine the requirements under Sections 63, 64 StGB. The decision is based on the degree of dangerousness and the necessity for rehabilitation or protection. The review of whether custody is to be continued is prescribed by law and takes place at regular, legally determined intervals. Usually, a review is conducted annually, with the court examining the individual’s current dangerousness and progression with the assistance of experts. These reviews serve to protect the right to liberty and ensure that custody continues only as long as it is legally required.
What rights and duties do committed individuals have in mental health custody?
Individuals committed to mental health custody have a wide range of rights, guaranteed to them both by the constitution and by the respective Mental Health Custody Laws of the states. These include, among others, the right to humane accommodation, health care and personal support, access to work and therapeutic measures, the right to correspondence and visits, as well as the right to privacy protection. At the same time, there are numerous duties, in particular compliance with house and facility rules, participation in therapeutic measures, and following staff instructions. Violations may result in disciplinary measures, the scope and limits of which are determined by the relevant laws.
How is the complaints and legal protection system organized in mental health custody?
Individuals in mental health custody may file complaints both against measures taken in custody as well as decisions on relaxations, transfers, or the denial of certain rights. The Mental Health Custody Laws provide for a tiered administrative and judicial protection system, starting with internal complaints and then appealing to the courts, usually the enforcement chambers. In addition, immediate appeal under the provisions of the Criminal Procedure Code (StPO) is available against judicial decisions. The right to individual constitutional complaint to the Federal Constitutional Court and access to the European Court of Human Rights also provide legal remedies against unlawful measures or disproportionate liberty restrictions.
What regulations exist for relaxation of custody and release from mental health custody?
The Mental Health Custody Laws contain differentiated provisions on relaxations (e.g., leave, excursions, unaccompanied stays) and requirements for release. Relaxations are always dependent on ensuring that neither the public is endangered nor the therapeutic process is significantly impaired. Such decisions generally require careful expert assessment and written documentation. Release, especially conditional release, regularly requires a positive prognosis concerning the individual’s risk and further development, and is made through a judicial decision. The law also provides for which aftercare measures or instructions may be ordered to minimize risks.
How is accommodation and medical care regulated?
Mental health custody facilities are subject to strict structural, organizational, and medical standards defined in the relevant state laws and supplementary regulations. Medical care comprises both psychiatric and psychotherapeutic treatment, as well as basic somatic care. Particular emphasis is placed on individualized treatment planning, regular review of therapeutic goals, and interdisciplinary cooperation. The facilities must provide qualified medical and therapeutic care around the clock, and treatment offerings must be based on the latest scientific standards.
Who is responsible for the costs of mental health custody?
The costs for accommodation, treatment, and care in mental health custody are generally borne by the federal states and financed from public funds. Exceptions are costs for additional voluntary services or in the context of compensation for unlawful custody measures. In individual cases, services from third parties, such as statutory health insurance funds, may be claimed if the legal conditions are met and the mental health custody facility is recognized as an inpatient healthcare institution. Financing is part of state-specific regulation and therefore subject to federal state differences, but always includes the entire stay, medical care, maintenance, as well as necessary therapy and reintegration measures.
