{"id":930,"date":"2026-07-28T13:20:41","date_gmt":"2026-07-28T13:20:41","guid":{"rendered":"https:\/\/www.mth-partner.de\/rechtsanwaltsblog\/?p=930"},"modified":"2026-07-29T12:05:52","modified_gmt":"2026-07-29T12:05:52","slug":"betreuungsrecht-voraussetzungen-verfahren-und-rechtsmittel-bei-der-offentlich-rechtlichen-und-zivilrechtlichen-unterbringung","status":"publish","type":"post","link":"https:\/\/www.mth-partner.de\/en\/guardianship-law-requirements-procedure-and-legal-remedies-in-public-and-civil-placement\/","title":{"rendered":"Compulsory Admission and Detention: Prerequisites, Procedures, and Remedies"},"content":{"rendered":"

The phone rings one Thursday evening. \u201cYour mother has been taken to a psychiatric hospital by the police,\u201d says a voice from the public order office. Or you open a letter from the magistrates\u2019 court: a hearing, a compulsory admission case, tomorrow at 10 am. Or you are the one affected and don\u2019t know how long they are allowed to keep you here.<\/span><\/p>\n

Involuntary placement is the most serious intervention recognised by German law outside the criminal justice system. That is precisely why it is subject to strict conditions and a formal procedure \u2014 and that is precisely why it is worth knowing your rights. This article explains when involuntary commitment is permissible, how the procedure works and what legal remedies are available to those affected and their relatives.<\/span><\/p>\n

Important Note: The content of this article has been prepared to the best of our knowledge and belief. However, due to the complexity and constant evolution of the subject matter, we must exclude liability and warranty.<\/b> This article is for general information purposes only and is not a substitute for individual legal advice. Deportation proceedings move quickly, and the time limits for appealing are short. If you or someone close to you is affected, please contact a solicitor as soon as possible.<\/span><\/p>\n

<\/span>What does \u201eaccommodation\u201c actually mean?<\/span><\/span><\/h2>\n

In legal terms, \u2018committal\u2019 refers to admission to a secure institution against the will of the person concerned \u2014 or whilst they are in a state in which they are unable to express their will. What matters is not the sign on the ward door, but the effect: anyone who is not permitted to leave the institution is deemed to have been committed.<\/span><\/p>\n

This relates to Article 2(2) of the Basic Law (freedom of the person) and Article 104 of the Basic Law, which requires a judicial decision for any deprivation of liberty. For this reason, every instance of compulsory admission is concluded with a ruling by the local magistrates\u2019 court \u2014 even if the person was initially taken to the clinic by the police or the public order office.<\/span><\/p>\n

It is also important to distinguish this from legal guardianship. Guardianship under Section 1814 of the German Civil Code (BGB) does not constitute placement in care. It means that a person is legally represented in certain areas \u2014 for example, in dealings with public authorities or doctors. A guardian is appointed only where necessary (Section 1814(3) of the German Civil Code (BGB)), and, in accordance with Section 1814(2) of the BGB, never against the free will of the person concerned. Most guardianships continue throughout a person\u2019s lifetime without a single measure that deprives them of their liberty.<\/span><\/p>\n

<\/span>Why older advice articles on this topic are often wrong<\/span><\/span><\/h2>\n

On 1 January 2023, the Act of 4 May 2021 on the Reform of Guardianship and Care Law came into force. It has reorganised and renumbered the entire body of care law.<\/span><\/p>\n

The key point: The former central provision, Section 1906 of the German Civil Code (BGB), no longer exists. Civil law provisions on accommodation are now set out in <\/span>Section 1831 of the German Civil Code (BGB)<\/b>, the compulsory medical measure in <\/span>Section 1832 of the German Civil Code (BGB)<\/b>. There have also been some changes to the substance of the provisions \u2014 since 2023, the grounds for placement relating to treatment have explicitly required that a <\/span>there is a risk of serious damage to health<\/span><\/i>. That\u2019s a higher hurdle than it used to be.<\/span><\/p>\n

So, if you come across texts on the internet that quote Section 1906 of the German Civil Code (BGB) or refer to the \u201eguardianship court\u201c, please note that these sources no longer reflect the current legal situation. Since 2009, jurisdiction has lain with the guardianship court, which is a division of the local civil court.<\/span><\/p>\n

<\/span>The three routes to accommodation<\/span><\/span><\/h2>\n

Germany has three separate legal bases. They differ in terms of their purpose, the competent authority and the legal remedies available.<\/span><\/p>\n\n\n\n\n\n\n\n\n\n\n
<\/th>\nUnder public law (PsychKG of the federal states)<\/b><\/th>\nUnder civil law (Section 1831 of the German Civil Code (BGB))<\/b><\/th>\nCriminal law (Sections 63 and 64 of the German Criminal Code)<\/b><\/th>\n<\/tr>\n<\/thead>\n
Purpose<\/b><\/td>\nDefence against an imminent threat<\/span><\/td>\nProtection and treatment of the person concerned<\/span><\/td>\nProtection and rehabilitation following a criminal offence<\/span><\/td>\n<\/tr>\n
Source of law<\/b><\/td>\nState law \u2014 different in every federal state<\/span><\/td>\nFederal law, the same for all federal states<\/span><\/td>\nFederal law (StGB, StPO)<\/span><\/td>\n<\/tr>\n
Who sets them in motion?<\/b><\/td>\nLocal public order authority, usually following referral by the social psychiatric service<\/span><\/td>\nThe appointed carer or a person with power of attorney<\/span><\/td>\nPublic Prosecutor\u2019s Office and Criminal Court<\/span><\/td>\n<\/tr>\n
Who decides?<\/b><\/td>\nMagistrates\u2019 Court \u2014 it <\/span>orders<\/span><\/i><\/td>\nGuardianship Court \u2014 it <\/span>approved<\/span><\/i> the guardian\u2019s decision<\/span><\/td>\nCriminal Court in its judgement (Section 126a of the Code of Criminal Procedure, provisional)<\/span><\/td>\n<\/tr>\n
Procedural law<\/b><\/td>\nFamFG, sections 312 et seq.<\/span><\/td>\nFamFG, sections 312 et seq.<\/span><\/td>\nCode of Criminal Procedure<\/span><\/td>\n<\/tr>\n
Possible even without supervision?<\/b><\/td>\nYes<\/span><\/td>\nNo \u2014 does this involve care or Enduring Power of Attorney<\/a> in advance<\/span><\/td>\nYes<\/span><\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

 <\/p>\n

The difference between <\/span>order<\/span><\/i> and <\/span>approve<\/span><\/i> It may sound like splitting hairs, but it has practical significance. In the case of placement under public law, the state itself makes the decision. In the case of placement under civil law, the guardian makes the initial decision \u2014 and the court then examines whether they were entitled to do so. The guardian therefore remains the decision-maker; the court acts as the supervisory body.<\/span><\/p>\n

<\/span>Civil law placement under Section 1831 of the German Civil Code (BGB)<\/span><\/span><\/h2>\n

This provision applies to people for whom a guardian has already been appointed. The guardian may only arrange for placement involving deprivation of liberty for as long as it is necessary \u2014 and only on one of two grounds (Section 1831(1) of the German Civil Code (BGB)):<\/span><\/p>\n

    \n
  1. Self-harm.<\/b> Due to a mental illness or a mental or psychological disability, there is a risk that the person under care may take their own life or cause themselves significant harm.<\/span><\/li>\n
  2. Need for treatment.<\/b> An examination, medical treatment or surgical procedure is necessary to avert an imminent risk of serious harm to health; this measure cannot be carried out without the person being admitted to a care facility; and, due to their illness, the person in care is unable to recognise the necessity of this or to act accordingly.<\/span><\/li>\n<\/ol>\n

    Both are reasons that <\/span>in the interests of the data subject<\/span><\/i> ... A risk to others \u2014 the concern that someone might harm others \u2014 justifies involuntary commitment under civil law precisely <\/span>not<\/b>. This is governed exclusively by state law.<\/span><\/p>\n

    Three further points that are often overlooked in everyday life:<\/span><\/p>\n