Social association cannot force intervention against "nursing emergency"

Social association cannot force intervention against



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The Federal Constitutional Court dismisses the VdK appeal as inadmissible
Karlsruhe (jur). The attempt by the VdK social association to force the legislator to take action against malpractice failed. With a decision published on Friday, February 19, 2016, the Federal Constitutional Court did not accept the constitutional complaint supported by the VdK (Az .: 1 BvR 2980/14). A specific law can be sued "only in rare exceptional cases", "an infringement of a fundamental right to protection" was not adequately explained for this, the Karlsruhe judges explained as justification.

With its constitutional complaint, the largest social association in Germany with 1.7 million members had complained of “looking away collectively” from well-known grievances. Old people would be "taken care of in bed", fixed there or immobilized with tablets. "Catheters and diapers instead of going to the toilet, eating in bed instead of accompanying walking into the dining room, parking in a wheelchair instead of support when trying to walk" are common practice to save time and costs. Too often, therefore, probes for artificial nutrition would also be used instead of helping those in need of care to eat. These are not isolated cases, but a "systemic failure".

The six complainants supported by the VdK are mostly already 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 abuses in inpatient care, but without being able to effectively defend themselves against it in the home," said the constitutional complaint. With this reasoning and the selection of the applicants, the VdK wanted to prevent the Federal Constitutional Court from referring them to individual cases before the specialist courts. For the same reason, the complaint largely ignores the issue of violence in nursing homes.

This strategy was now unsuccessful before the Federal Constitutional Court. "Specialist legal protection must be requested in relation to care measures that are contrary to fundamental rights", says the Karlsruhe decision. Above all, however, the Federal Constitutional Court emphasized that it is up to the legislator and not the court to determine the framework conditions for care.

"The constitutional complaint is a legal remedy to defend your own subjective rights," argues the Federal Constitutional Court. The Basic Law does not provide for a "popular situation" in the interest of large sections of the population. "Only in rare exceptional cases can the constitution provide concrete obligations that compel the legislator to take specific action."

The complainants could not overcome this high hurdle. "A violation of a fundamental right to protect by neglecting the legislature has not been sufficiently substantiated," says the Karlsruhe decision. "The constitutional complaint does not sufficiently substantiate that the complainants themselves, currently and directly, are violated in their fundamental rights." They are also free to choose their future nursing home themselves.

The Federal Constitutional Court also complains that the complaint does not show where the current regulations are inadequate and to what extent changes could improve the situation. Even in this respect, the constitutional complaint does not prove that the legislator, despite available options, violates his protective duties, 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 "not be a license for the federal government to put this topic aside," said Mascher in Berlin. “In our view, the shortcomings and the emergency in nursing homes are evident and sufficiently documented. There are still too few nurses, too little time and too little attention. ”Individual legal protection in individual cases has so far proven to be ineffective. The dependency and helplessness of the needy person due to illness would stand in the way of successful individual lawsuits. (mwo / fle // mwo)

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