CORONA crisis: restrictions on visitation rights in nursing homes and hospitals as a protective measure - legally permissible?

Visiting and access rights of relatives result from the fundamental right of the family (Article 6 of the Basic Law of the Federal Republic of Germany (Grundgesetz, GG) - protection of the family). They have therefore a high priority. However, this does not mean that the rights of visitors always take precedence over those of residents, who for their part have a legitimate interest in protecting their health (Article 2 (2) GG). In exceptional circumstances - as is currently the case due to the high risk of infection by the coronavirus - visitation rights can be restricted or even completely suspended. In this respect, conflicting interests relating to fundamental rights must always be weighed up: A balance must be struck between the rights of visitors and the interests of the residents and the body responsible for the institution. The legal basis for restrictions on visitation rights may be, on the one hand, regulatory provisions and, on the other hand, the institution's right to enforce house rules (domiciliary rights) resulting from its ownership and the responsible body’s duty of protection and care.

A restriction on visitation rights may be imposed by the competent supervisory authorities (nursing home or health authorities) on a regulatory basis. This is implemented under the general clause of the German Protection against Infection Act (Infektionsschutzgesetz, IfSG), namely Section 28 (1) sentence 2 IfSG, in conjunction with the general power to prevent risk (e.g. Section 14 of the North Rhine-Westphalian Act on the organisation and authorities of authorities responsible for law and order (Ordnungsbehördengesetz, OBG). The conditions for this are met: In view of the high risk potential of the coronavirus on the one hand, and the special need for protection of elderly or sick people (high-risk group) on the other hand, social distancing is - for the time being - the only way to protect these people from unforeseeable risks to their health and life.

In practice, it was found that the restrictions on visiting rights initially imposed by the competent authorities in early to mid-March 2020 were not consistent: since it should remain possible to visit each inhabitant for a maximum of one hour each day. However, it has been recognised in the meantime that in order to reduce the risk of infection, it is not the length of the visit that counts, but the contact with external parties as such. The result is now consistent protection in the form of strict bans on visits and access, which have been decreed by regulatory orders.

Irrespective of the current regulatory orders and measures - which must be strictly adhered to - the question arises from the perspective of the institutions concerned and their respective management whether they could also independently impose restrictions on visiting rights in order to protect the patients and persons in need of care entrusted to them. This question must be answered at the latest when the regulatory measures are to be relaxed or lifted again. The answer to this question must be ‘yes’ in principle given the exceptional circumstances: In this respect, the institution’s management can invoke its right to enforce house rules, which is based on the right to property (Article 14 (1) GG). At the same time, it may refer to its obligation to care for and protect residents and patients. As long as there still is an acute risk of infection for particularly vulnerable persons, prohibition of access and suspension of visiting rights may be the only effective means. This applies in any case if the prevention of direct contact with highly vulnerable people cannot be ensured by other, similarly effective measures (e.g. shielding by protective clothing or spatial barriers).

In case of doubt, the vital interests of highly vulnerable people in protecting their health take precedence over the interests of relatives and other persons in a personal visit. Narrow exceptions are conceivable if the special situation requires it (e.g. being with and supporting the dying).

Conclusion: Strict bans on visits or access represent a recognisably serious encroachment upon the fundamental rights of the relatives. Nevertheless, they can be legally justified due to the existential risk of an infection with the coronavirus: if they are the only means of effective protection of the health of highly vulnerable persons, such as the sick or elderly. As a legal basis for this, regulatory provisions (IfSG) but also - independently of this - the domiciliary rights of the respective institution come into consideration, as long as there is an imminent risk of infection and defence against such risk causing less encroachment upon fundamental rights cannot be justified.