Social Union can not enforce intervention against nursing emergency

Federal Constitutional Court rejects VdK appeal as inadmissible
Karlsruhe (jur). The attempt of the social association VdK, to force an intervention of the legislator against Pflegemissstände, failed. With a resolution published on Friday, February 19, 2016, the Federal Constitutional Court did not accept the constitutional complaint supported by the VdK (ref .: 1 BvR 2980/14). A concrete law can be sued "only in rare exceptional cases", "a violation of a fundamental legal duty of protection" was not sufficiently set out for this purpose, explained the Karlsruhe judge to justify.
With his constitutional complaint, the largest social organization in Germany, with 1.7 million members, had criticized a "collective looking away" against well-known grievances. Old people would be "put into bed", fixed there or sedated with pills. "Catheters and diapers instead of going to the toilet, eating in bed instead of escorted walking in the dining room, parking in a wheelchair instead of helping with walking" are common practice to save time and money. That's why artificial nutrition probes are being used far too often instead of helping people in need of care. These are not isolated cases, but a "systemic failure".

Judgment. Image: Sebastian Duda - fotolia

The last six complainants supported by the VdK are predominantly dependent on outpatient care and assume that they will have to go to a home in the future. "They fear that then they too will be affected by the widespread maladministration in in-patient care, but without being able to defend themselves effectively in the home," it said in the constitutional complaint. With this argument and the selection of the complainants, the VdK wanted to avoid that the Federal Constitutional Court refers them to individual cases before the specialized courts. For the same reason, the complaint largely excludes violence in nursing homes.

This strategy was not successful in the Federal Constitutional Court. "With respect to fundamental rights-adverse care measures is to seek judicial protection," it says in the Karlsruhe decision. Above all, however, the Federal Constitutional Court emphasized that it was the task of the legislator and not of the court to determine the framework conditions for care.

"The constitutional complaint is a legal remedy in defense of its own subjective rights," argues the Federal Constitutional Court. A "Popularklage" in the interest of broader sections of the population does not provide for the Basic Law. "Only in rare exceptional cases can the Constitution be identified with specific duties that force the legislator to take action."

The complainants could not take this high hurdle. "A violation of a constitutional duty to protect by omission of the legislator was not sufficient substantiated," it says in the Karlsruhe decision. "The constitutional complaint does not show sufficiently substantiated that the complainants themselves are currently and directly violated in their fundamental rights." They were also free to choose their future nursing home themselves.

In addition, the Federal Constitutional Court complains that the complaint does not show where the current regulations are inadequate and to what extent changes could improve the situation. Even if the constitutional complaint does not prove that the legislature violates its duty to protect despite existing possibilities, the Karlsruhe judges argue in their decision of January 11, 2016, which has now been published in writing.

VdK President Ulrike Mascher regretted the Karlsruhe decision. It should be "not a license for the Federal Government to put this topic to be shelved," said Mascher in Berlin. "The shortcomings and the state of emergency in nursing homes are evident and sufficiently documented in our view. There are still too few nurses, too little time and too little attention. "The individual legal protection in individual cases has so far proven to be less effective. The dependency and illness-related helplessness of those in need of care would stand in the way of successful individual suits. (Mwo / fle // mwo)