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Expert opinions in the supervision procedure must be sent to those affected

If a court orders or extends care for a mentally ill person, the person concerned must be sent the corresponding expert opinion in full. This was decided by the Federal Court.

It is not enough for the curator ad litem or the previous supervisor to discuss the expert's report with the person concerned, decided the Federal Court of Justice () in Karlsruhe in a decision published in September on August 8, 2018 (Ref .: XII ZB 139/18).

If the person concerned does not know the wording of the report, his or her right to be heard will be violated. Only if the announcement could lead to health disadvantages may, as an exception, be dispensed with personally transmitting the report to the person concerned

The specific case concerned a man from Baden-Württemberg suffering from paranoid schizophrenia. After obtaining an expert opinion, the Buchen District Court had appointed a professional supervisor for the man who was supposed to regulate his legal affairs. The report was not sent to the man before the personal hearing.

Supervised person must have personal access to the expert opinion

On the other hand, the man filed an unsuccessful complaint with the Mosbach Regional Court. He had presented a living will dated January 21, 2018, in which he had specified his father as the authorized representative.

He agreed with the man for procedural reasons alone. The district court should have sent the expert's report in full to the person concerned before hearing him personally. Instead, the district court only handed over the expert opinion to the provisionally appointed supervisor and the curator ad litem. According to the Karlsruhe judges, this is not enough.

"Even if the supervisor had spoken to the person concerned about the report, for which, however, there are no findings, this alone was not enough to meet the person concerned’s right to be heard", it says further in the decision. According to the law, personal transmission can only be dispensed with if health disadvantages are to be feared as a result of the report being published.

Power of attorney opposes care

The XII Civil Senate also complained that the court had not examined the living will and the power of attorney contained therein in favor of the father, nor had it found that it was ineffective.

Basically, a health care proxy precludes the appointment of a supervisor. This is different only in the case of "significant concerns", however, that the authorized representative is unsuitable. The court did not check that, he said.

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KeywordsExpertise | Care | Career supervisor | Federal Court of Justice | mental illness