Treatment without consent under section 110 StGB: medical correctness, emergency assumptions and prosecution on request explained.
Mag. Christopher Angerer, Rechtsanwalt
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Treatment may be punishable under section 110 StGB when it is carried out without the treated person's consent. The wording of the provision covers this even when the intervention follows the rules of medical science.
The treatment, consent and any claimed emergency therefore have to be assessed separately. This article addresses criminal-law patient autonomy under section 110 StGB. Civil malpractice, patient directives and compensation claims are outside its scope.
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The first review depends on whether consent is missing, an emergency was assumed or a request for prosecution is being considered.
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This assessment does not replace a review of the specific treatment. It organises the first criminal-law questions.
Section 110(1) names the absence of consent as a point of reference and at the same time mentions treatment according to medical science. The intervention, the claimed consent and the available records should therefore be recorded separately.
Under section 110(2) StGB, the assumed serious danger to life or health, the actual existence of that danger and whether its absence could have been recognised with the required care must be examined. These points have to be assessed against the circumstances at the time.
If consent is unclear, the first task is to establish which intervention is concerned and which statement relates to it. Section 110 requires a concrete review of the treatment in question.
Section 110(3) StGB provides that the offender is prosecuted only on the request of the person treated without consent. This request must be kept separate from the substantive question whether subsection 1 applies.
Section 110(1) StGB covers treating another person without that person's consent. The wording expressly states that this applies even when the treatment follows the rules of medical science. Proper medical performance therefore does not answer the consent question.
The first account of the facts should record the intervention, the treated person, the time and the claimed or disputed consent. These details identify the treatment to be reviewed under section 110.
The penalty in subsection 1 is up to six months' imprisonment or a fine of up to 360 daily rates. Whether the provision applies in an individual case depends on the established circumstances.
The provision connects two separate points of reference: treatment of another person and the absence of that person's consent. The factual review should therefore state precisely what the consent was said to cover and which intervention was carried out.
The wording of section 110 does not contain a general checklist for the form, information or withdrawal of consent. The provision should not be used to infer additional blanket requirements. The concrete event and its provable circumstances remain decisive.
A complication-free outcome does not decide the consent issue either. The medical sequence, the statement and the records have to be considered alongside one another for the criminal-law assessment.
Section 110(2) StGB concerns the situation in which the treating person did not obtain consent because the person assumed that delaying treatment would seriously endanger life or health.
Under the provision, punishment under subsection 1 in this situation requires that the perceived danger did not exist and that the person could have recognised this with the required care. The assumed danger, the information available at the time and the required care therefore have to be considered together.
The later course of the patient's health does not replace this review. The relevant questions are which danger was assumed and whether its absence would have been recognisable with a careful assessment. Calling an event an emergency does not answer those questions.
Section 110(3) StGB provides that the offender is prosecuted only on the request of the person treated without consent. The law therefore connects prosecution to a statement by the person who received the treatment without consent.
This request concerns prosecution. It does not replace the review of the treatment, the consent issue or a possible emergency assumption. Those levels should remain clearly separated in records and discussions.
The statutory text considered here does not state a general deadline or a specific form for the request. Questions about the wording and the further procedure require a separate review of the individual case.
For a section 110 assessment, records that show the treatment, consent and time of the decision are useful. They may include treatment records, consent statements, conversation notes, findings and notes made close to the event.
If a danger to life or health was claimed, emergency notes, alert times and the information available at that time should also be arranged. They show which danger was assumed and which facts were known when the decision was made.
A clear timeline separates the statutory questions: What treatment took place, what consent was given and why was consent possibly not obtained? This order does not replace access to the file, but it helps prevent premature conclusions.
The wording of the provision leads to five separate questions for an initial assessment.
| Point | Statutory reference | First question |
|---|---|---|
| Treatment | A person was treated | What intervention took place? |
| Consent | Consent of the treated person | What consent was given or disputed? |
| Medical rules | Proper medical treatment is also mentioned | What medical standard is documented? |
| Emergency assumption | Serious danger and required care | What was recognisable at the time? |
| Request for prosecution | Request by the person treated without consent | Has such a request been made? |
The sequence keeps consent, the emergency assumption and the request for prosecution apart.
Important: A medically proper intervention does not answer the consent question. If an emergency is claimed, the assumed danger and the required care must be assessed from the circumstances at the time.
Section 110(1) StGB covers treatment without consent even when it follows the rules of medical science. Whether the provision applies in an individual case depends on the specific circumstances and any emergency assumption under subsection 2.
The review concerns the assumed serious danger to life or health, whether that danger existed and whether its absence could have been recognised with the required care.
Under section 110(3) StGB, the offender is prosecuted only on the request of the person treated without consent. This is a separate question from the substantive assessment of the treatment.
No. The article is limited to criminal-law patient autonomy under section 110 StGB. Civil malpractice, patient directives and compensation claims are outside its scope.
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