Unauthorized Medical Treatment

Unauthorized Medical Treatment according to § 110 StGB occurs when a medical procedure is performed without the patient’s valid consent, even if the intervention is carried out professionally. The right to self-determination over one’s own body is protected. Treatment without consent is punishable, provided that no genuine emergency exists and the presumed danger, upon careful examination, would have been demonstrably unfounded. Prosecution requires an explicit request from the affected person.

objective elements of the offence

The objective elements of § 110 StGB cover any medical treatment that is performed without the patient’s effective consent. Decisive is the actual interference with physical integrity, regardless of whether the measure is professionally carried out or in the patient’s medical interest. The offense protects self-determination over one’s own body, i.e., the right to make informed decisions about medical interventions. A treatment objectively constitutes an offense as soon as no valid consent is present and the intervention is not covered by a genuine, objectively ascertainable emergency that imperatively requires an immediate medical measure. If a presumed emergency is assumed which, upon careful examination, would have been recognizable as unfounded, the intervention also remains an offense.

Steps of legal assessment

Perpetrator:

For unauthorized medical treatment, any person who performs a medical measure on someone can be held responsible. It does not matter whether it is a doctor, nursing staff, or another person. The only decisive factor is that the intervention originates from this person and is recognizable as treatment.

Object of the Offense:

The object of the offense is any person on whom a medical measure is performed. The right of every person to decide for themselves whether a treatment may be carried out is protected. This right to self-determination applies regardless of a person’s age or whether they have health limitations.

Act:

The act constituting the offense is medical treatment without the consent of the affected person. This includes all measures that involve the body, such as examinations, injections, dressings, surgical interventions, or therapeutic applications.

A treatment falls under the elements of the offense if:

• it is actually carried out,
• no consent from the patient is present,
• and no genuine medical emergency exists that imperatively requires immediate action.

Important: Even a professionally correct treatment is unlawful if it is carried out without consent.

Result of the Offense:

The success of the offense already consists in the fact that the body is attacked or treated without consent. No health damage needs to occur. The mere fact that someone was medically treated without their permission fulfills the elements of the offense.

Causality:

The treatment must have been caused by the perpetrator’s conduct. This means: Without the action of the treating person, the intervention would not have occurred. Preparatory actions also fall under this, if they enable the intervention.

Objective Attribution:

The success of the treatment is objectively attributable if the unauthorized treatment realizes precisely the risk that the legislator intends to prevent, namely a medical intervention without consent. A case would not be attributable if the intervention occurs for entirely independent reasons that have nothing to do with the conduct of the medically acting person.

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Distinction from other offences

The offense of unauthorized medical treatment according to § 110 StGB covers cases in which a medical measure is performed without the patient’s effective consent. The focus is on the lack of consent, which constitutes an interference with physical self-determination. The wrongfulness arises not from the medical measure as such, but from the treatment without the affected person’s freedom of decision. Thus, the violation of the right to self-determination is decisive, even if the treatment is medically correct or would be beneficial to health.

• § 83 StGB – Bodily Injury: Bodily injury is based on physical harm or impairment of health. In contrast, § 110 StGB already covers the intervention itself, regardless of whether the patient is injured or suffers a health disadvantage. The distinction is made according to the protective purpose: While § 83 StGB protects physical integrity, § 110 StGB serves to secure free and self-determined decision-making regarding medical interventions. Both offenses can coexist if an unauthorized treatment simultaneously causes an injury.
• § 105 StGB – Coercion: Coercion requires compulsion through violence or threat that induces the affected person to a specific behavior. In contrast, § 110 StGB does not require compulsion; the treatment is performed precisely without consent and not brought about by manipulation or pressure. Both offenses can coincide if a person is first induced by threat to tolerate a treatment and subsequently actually receives medical treatment. However, the core of the wrongfulness clearly differs: Coercion concerns freedom of decision, § 110 StGB concerns physical intervention without consent.

Concurrences:

Genuine Concurrence:

Genuine concurrence exists when further independent offenses are added to unauthorized medical treatment, such as bodily injury, deprivation of liberty, coercion, or dangerous threat. These offenses are not superseded because the violation of physical self-determination constitutes an independent element of wrongfulness. If health damages occur as a result of the treatment, both groups of offenses regularly coexist.

Spurious Concurrence:

Supersession due to specialty is only considered if another offense fully encompasses the entire wrongfulness of the treatment. This can be the case with qualified bodily injuries if the focus lies exclusively on the actual injury. Conversely, unauthorized medical treatment itself exhibits specialty if only the unauthorized medical intervention is in the foreground and no further violations of legal interests exist.

Multiple Offenses:

Plurality of offenses exists when several unauthorized treatments are performed independently of each other or several interventions occur separately in time. Each independent treatment without consent constitutes a separate offense, provided there is no natural unity of action.

Continued Action:

A single offense is to be assumed when continuous medical measures are taken without consent that serve a single purpose, such as the repeated performance of a treatment step against the patient’s will. The offense ends as soon as no further interventions are carried out or the affected person effectively asserts their objection.

Burden of proof and evaluation of evidence

Public Prosecutor’s Office:

The public prosecutor’s office must prove that the accused performed medical treatment without effective consent. Decisive is the proof of an actually performed intervention for which neither valid consent nor a genuine medical emergency existed. It is not about medical professional errors or evaluations, but about the objective circumstance that the intervention occurred without permission.

It must be proven, in particular, that

• a medical measure was actually performed,
• no consent from the affected person was present,
• no objectively necessary emergency justified the immediate treatment,
• the intervention is objectively attributable to the accused.

The public prosecutor’s office must also present whether the accused wrongfully misjudged a presumed emergency, if this is relevant for the legal assessment.

Court:

The court examines all evidence in its overall context and assesses whether, according to objective standards, medical treatment without consent was performed. The central question is whether the intervention was actually carried out and whether it occurred without effective consent.

In doing so, the court particularly considers:

• Type and scope of the treatment performed,
• whether consent was declared, revoked, or never given,
• whether an emergency objectively existed or was merely assumed,
• whether the affected person could recognize and refuse the intervention,
• whether a reasonable average person would have considered consent necessary under the same circumstances.

The court clearly distinguishes this from misunderstandings about the scope of treatment, consensual routine actions, or socially customary assistance without the character of an intervention.

Accused Person:

The accused person bears no burden of proof. However, they can raise justified doubts, particularly regarding

• the question of whether a medical intervention was actually performed,
• whether consent was present or could be assumed,
• whether the accused was reasonably entitled to assume an emergency (Paragraph 2),
• contradictions or missing evidence in the presentation of the treatment situation.

They can also demonstrate that certain measures were mere preparatory actions, nursing assistance without the character of an intervention, or occurred with the consent of the affected person.

Typical Assessment

In practice, the following evidence is particularly important for § 110 StGB:

• medical records, documentation, or recordings of the measure performed,
• statements from treating or present persons,
• communication records regarding consent, refusal, or information,
• documents regarding whether an objective emergency existed or not,
• expert opinions on the course and necessity of the intervention,
• chronologies showing when and how the intervention was performed.

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Practical example

• Treatment without effective consent with presumed consent: The perpetrator performs a medical measure on a patient, although no clear consent is present. He mistakenly assumes the patient agrees to the treatment, even though she was neither asked nor had previously given an explicit declaration. The affected person tolerates the action because she assumes it is merely a preparatory examination. However, the perpetrator actually begins an intervention. The lack of consent leads to a clearly recognizable violation of physical self-determination.
• Treatment based on a falsely assumed emergency: Over a certain period, the perpetrator repeatedly assumes that immediate medical treatment is imperatively necessary to protect the health of the affected person. He carries out several measures without consent, although objectively no emergency exists and the situation would have allowed for clarification. The affected person then makes no independent decisions about their medical care because the measures are already being carried out. Despite existing indications that there is no immediate danger, the perpetrator adheres to the assumption of an emergency and continues treatment without consent.

These examples show that unauthorized medical treatment according to § 110 StGB exists when someone takes medical measures without effective consent and thereby violates the physical self-determination of the affected person.

subjective elements of the offence

The subjective elements of unauthorized medical treatment require intent. The perpetrator must know that they are performing a medical measure without the effective consent of the affected person and that this intervention into physical self-determination is objectively capable of impairing the patient’s legal sphere. At the same time, they must at least accept the possibility that the affected person had no opportunity to consent to or refuse the measure.

The perpetrator must therefore understand that their conduct, in its overall context, constitutes a deliberate intervention without consent and is typically capable of affecting the physical integrity and freedom of decision of the affected person. It is crucial that the intervention is performed consciously without consent; mere negligence is not sufficient.

No subjective elements of the offense exist if the perpetrator genuinely believes that consent is present, that the measure is desired by the affected person, or that a genuine medical emergency imperatively requires immediate treatment. Anyone who assumes to be acting lawfully or mistakenly presumes consent does not fulfill the requirements of § 110 StGB.

Ultimately, a person acts intentionally if they know and consciously aim to perform a medical measure without consent, thereby impairing the affected person’s self-determination over their own body.

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Culpability and mistakes

Mistake of prohibition:

A mistake of prohibition only excuses if it was unavoidable. Anyone who engages in conduct that recognizably interferes with the rights of others cannot claim that they did not recognize the illegality. Everyone is obliged to inform themselves about the legal limits of their actions. Mere ignorance or a reckless error does not absolve one of responsibility.

Principle of culpability:

Only those who act culpably are punishable. Intentional offenses require that the perpetrator recognizes the essential events and at least accepts them as a possibility. If this intent is lacking, for example, because the perpetrator mistakenly assumes that their behavior is permitted or is voluntarily supported, at most negligence exists. This is not sufficient for intentional offenses.

Incapacity to be held accountable:

No guilt is attributed to someone who, at the time of the offense, was unable to recognize the injustice of their actions or to act in accordance with this insight due to a severe mental disorder, a pathological mental impairment, or a significant inability to control their actions. In case of corresponding doubts, a psychiatric assessment will be obtained.

Excusable state of necessity:

An excusable state of necessity may exist if the perpetrator acts in an extreme situation of duress in order to avert an acute danger to their own life or the lives of others. The behavior remains unlawful but can have a mitigating or excusing effect if there was no other way out.

Putative self-defense:

Anyone who mistakenly believes that they are entitled to an act of defense acts without intent if the error was serious and comprehensible. Such an error can reduce or exclude guilt. However, if a breach of duty of care remains, a negligent or mitigating assessment comes into consideration, but not a justification.

Extinction of punishment and diversion

Diversion:

Diversion is generally possible in cases of unauthorized medical treatment. The offense protects physical self-determination from unauthorized medical interventions, and the degree of culpability is primarily determined by the nature and intensity of the treatment, the circumstances of the intervention, and the personal responsibility of the perpetrator. In cases of minor interventions, clear insight, and no prior convictions, a diversionary resolution is regularly considered in practice.

However, the clearer a systematic, conscious, or repeated treatment without consent is recognizable, or the more severe the interference with physical integrity, the less likely a diversion becomes.

Diversion may be considered if

• the culpability is minor,
• the intervention interferes only slightly or temporarily with self-determination,
• no or only minor health consequences have occurred,
• no systematic or continuous conduct without consent existed,
• the facts are clear and manageable,
• and the perpetrator is insightful, cooperative, and willing to make amends.

If diversion is considered, the court can order monetary payments, community service, supervision orders, or victim-offender mediation. A diversion leads to no conviction and no criminal record entry.

Exclusion of Diversion:

Diversion is excluded if

• a significant or lasting impairment of physical integrity has occurred,
• the intervention was performed consciously targeted, planned, or against the explicit will of the affected person,
• multiple persons were affected or repeated unauthorized treatments occurred,
• a systematic or prolonged conduct occurs without consent,
• particularly vulnerable persons were affected,
• the treatment had qualified consequences, such as significant pain or psychological distress,
• or the overall conduct constitutes a serious violation of personal integrity.

Only with clearly minimal culpability and immediate insight can it be examined whether an exceptional diversionary procedure is permissible. In practice, diversion remains possible in cases of unauthorized medical treatment, but it is rare in systematic or serious cases.

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Sentencing and consequences

The court determines the penalty based on the extent of the unauthorized treatment, the type, duration, and intensity of the intervention, and how severely the unauthorized medical intervention has affected the physical self-determination or health of the person concerned. Decisive factors include whether the perpetrator acted repeatedly, purposefully, or systematically over a longer period without consent, and whether the conduct caused perceptible physical or psychological distress.

Aggravating Factors Exist in Particular If

• the treatment was continued over a longer period,
• a systematic or particularly persistent course of action without consent occurred,
• the person concerned was significantly physically or psychologically impaired,
• particularly vulnerable persons were affected,
• treatment was continued despite clear refusal or indications of a lack of consent,
• a significant breach of trust occurred, for example, within the scope of a special relationship of proximity or dependence,
• or relevant prior convictions exist.

Mitigating Factors Include

• Impeccability,
• a full confession and recognizable insight,
• an immediate cessation of the unauthorized treatment,
• active efforts for reparation or apology,
• particular psychological burdens or overwhelming situations for the perpetrator,
• or an excessively long duration of proceedings.

The court may conditionally suspend a prison sentence if it does not exceed two years and the perpetrator has a positive social prognosis.

Penalty Range

Unauthorized medical treatment is punishable by imprisonment for up to six months or a fine of up to 360 daily rates. This penalty framework constitutes the legal upper limit and applies to all cases in which a medical measure was carried out without effective consent. The law does not provide for a higher penalty.

A subsequent apology, the cessation of treatment, or efforts for reparation do not alter the legal penalty framework. Such circumstances exclusively affect the sentencing.

Criminal liability is waived if the perpetrator mistakenly assumed an urgent health risk and this error would not have been avoidable with careful examination. This ground for exclusion does not abolish the penalty framework but prevents the offense from being constituted.

Unauthorized medical treatment is also an authorization offense. This means that prosecution only occurs if the affected person explicitly declares that they desire prosecution. Without this authorization, no proceedings will be conducted.

Monetary Penalty – Day-fine System

Austrian criminal law calculates monetary penalties according to the day-fine system. The number of day-fines depends on the guilt, the amount per day depends on the financial capacity. In this way, the penalty is adapted to the personal circumstances and yet remains noticeable.

• Range: up to 720 day-fines – at least 4 euros, at most 5,000 euros per day.
• Practical formula: Approximately 6 months imprisonment corresponds to around 360 day-fines. This conversion serves only as orientation and is not a rigid scheme.
• In case of non-payment: The court can impose a substitute custodial sentence. As a rule, the following applies: 1 day of substitute custodial sentence corresponds to 2 day-fines.

Note:

In cases of unauthorized medical treatment, a fine is particularly considered if the intervention only slightly infringes upon physical self-determination, has resulted in no or only minor consequences, and the conduct is at the lower limit of criminal liability.

Imprisonment and (partially) suspended sentence

Section 37 of the Criminal Code: If the statutory penalty extends up to five years, the court may impose a instead of a short prison sentence of a maximum of one year a fine. This option also exists for offenses whose basic elements provide for a fine or imprisonment of up to one year. In practice, Section 37 of the Criminal Code is applied cautiously if the conduct was particularly burdensome, repeated, or involved a noticeable infringement on physical integrity. However, in less serious cases, especially for minor or inconsequential treatments without consent, Section 37 of the Criminal Code can certainly be invoked.

Section 43 of the Criminal Code: A prison sentence can be conditionally suspended if it does not exceed two years and the perpetrator has a positive social prognosis. This option also exists for offenses with a basic penalty framework of up to one year. Conditional suspension is granted more cautiously if aggravating circumstances exist or if the treatment without consent has led to significant physical or psychological distress. It is particularly realistic if the conduct is less severe, arose situationally, or if no lasting consequences occurred for the person concerned.

Section 43a of the Criminal Code: Partially conditional suspension allows for a combination of unconditional and conditionally suspended parts of the sentence. It is possible for sentences exceeding six months and up to two years. Since in more serious constellations of unauthorized medical treatment, sentences in the upper range of the penalty framework can be imposed, Section 43a of the Criminal Code is regularly considered. However, in cases with particularly serious circumstances, significant health consequences, or systematic action, it is applied noticeably more cautiously.

§§ 50 to 52 StGB: The court can additionally issue instructions and order probation assistance. Particularly considered are contact bans, therapy or support programs, or other measures intended to promote the protection of the person concerned and stable legal probation. Special attention is paid to the mandatory prevention of further unauthorized treatment acts and ensuring that the perpetrator will only engage in medical activities with effective consent in the future.

Jurisdiction of the courts

Subject-matter Jurisdiction

For unauthorized medical treatment, the penalty framework of up to six months imprisonment or a fine of up to 360 daily rates is generally the responsibility of the District Court. Offenses with such a low penalty fall under the first-instance decision-making competence of the District Courts according to statutory jurisdiction.

Since unauthorized medical treatment knows no qualified offense variants with a higher penalty and the statutory penalty framework is not exceeded, there is no scope of application for the Regional Court as a single judge. A lay assessors’ court is also not considered, as a higher penalty would be legally required for this.

A jury court is excluded, as unauthorized medical treatment does not provide for life imprisonment and therefore the legal requirements are not met.

Local Jurisdiction

The court of the place of offense has jurisdiction. Particularly relevant is

• where the medical treatment without consent was performed,
• where the lack of consent became legally relevant,
• where an unjustified health risk was triggered,
• or where preparatory or accompanying actions essential for the intervention were taken.

If the place of the offense cannot be clearly determined, the jurisdiction is based on

• the residence of the accused person,
• the place of arrest,
• or the seat of the competent public prosecutor’s office.

The proceedings are conducted where a practical and orderly implementation is best guaranteed.

Hierarchy of Courts

An appeal to the Regional Court is possible against judgments of the District Court. The Regional Court decides as an appellate court on guilt, penalty, and costs.

Decisions of the Regional Court can subsequently be challenged by appeal for nullity or a further appeal before the Supreme Court, provided that the legal requirements are met.

Civil claims in criminal proceedings

In cases of unauthorized medical treatment, the affected person themselves or close relatives, as private parties, can assert civil law claims directly in criminal proceedings. Since the act constitutes an unlawful interference with physical integrity, pain and suffering compensation, reimbursement of any treatment costs, loss of earnings, as well as other health-related or personal rights-related disadvantages are particularly at issue. Depending on the case constellation, consequential costs of medical or psychotherapeutic care, necessary nursing expenses, or legal consultation fees can also be claimed.

The joinder of a private party suspends the statute of limitations for all asserted claims as long as the criminal proceedings are pending. Only after the final conclusion does the limitation period begin to run again, to the extent that the claim has not been fully awarded.

Voluntary reparation, such as a sincere apology, financial compensation, or active support in coping with the consequences, can have a mitigating effect on the sentence, provided it is timely, credible, and complete.

However, if the perpetrator treated systematically, repeatedly, or over a longer period without consent, caused significant physical or psychological distress, or placed the victim in a particularly difficult health or personal situation, a later reparation generally largely loses its mitigating effect. In such constellations, a subsequent compensation cannot decisively relativize the committed wrong.

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Overview of criminal proceedings

Commencement of Investigation

Criminal proceedings require a concrete suspicion, from which point a person is considered an accused and can exercise all rights of the accused. However, in the case of authorization offenses such as unauthorized medical treatment, proceedings may only be initiated if the affected person explicitly declares that they desire prosecution. Without this declaration, only preliminary examinations are permissible, but no regular investigations.

Police and Public Prosecutor’s Office

The Public Prosecutor’s Office conducts the proceedings and determines the course of investigations, while the criminal police take the necessary steps. Ultimately, a decision is made regarding discontinuation, diversion, or indictment. If no effective authorization is granted, the proceedings remain at the preliminary examination stage and may not be continued.

Interrogation of the Accused

Before each interrogation, a full instruction on rights is provided, particularly regarding the right to remain silent and the right to legal counsel. If a defense lawyer is requested, the interrogation must be postponed. A formal interrogation of the accused always requires that valid authorization is present.

Access to files

Access to files can be obtained from the police, public prosecutor’s office, and court and also includes items of evidence, provided that the purpose of the investigation is not jeopardized thereby. The joinder of a private party is governed by the general rules of the Code of Criminal Procedure and remains independent of the authorization.

Main Hearing

The main hearing serves for oral evidence taking, legal assessment, and the decision on civil law claims of the private parties. Without the authorization of the affected person, no main hearing takes place, as otherwise no criminal proceedings could be conducted.

Rights of the accused

• Information & defense: right to notification, legal aid, free choice of defense counsel, translation assistance, and submission of evidence motions.
• Silence & counsel: right to remain silent at any time; if a defense attorney is requested, the interrogation must be postponed.
• Duty to inform: prompt notification of suspicion and rights; exceptions only permitted to safeguard the purpose of the investigation.
• Practical access to files: investigation and trial records; access by third parties is restricted to protect the accused.

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Practical guidance and behavioural advice

1. Maintain silence.
   A brief statement is sufficient: “I am exercising my right to remain silent and will first speak with my defense counsel.”
   This right applies from the very first interrogation by the police or the public prosecutor.
2. Contact defense counsel immediately.
   No statement should be made without access to the investigation files. Only after reviewing the files can the defense assess which strategy and evidence preservation measures are appropriate.
3. Secure evidence immediately.
   You should secure all available documents, messages, photos, videos, and other records as early as possible and keep copies. Digital data must be regularly backed up and protected from subsequent changes. Note down important individuals as potential witnesses and promptly record the sequence of events in a memorandum.
4. Do not contact the opposing party.
   Your own messages, calls, or posts may be used as evidence against you. All communication should take place exclusively through your defense counsel.
5. Secure video and data recordings in time.
   Surveillance videos from public transport, venues, or property management systems are often automatically deleted after only a few days. Requests for data preservation must therefore be submitted immediately to the operators, the police, or the public prosecutor’s office.
6. Document searches and seizures.
   In cases of house searches or seizures, you should request a copy of the warrant or record. Note the date, time, persons involved, and all items taken.
7. In case of arrest: make no statements about the matter.
   Insist on immediate notification of your defense counsel. Pre-trial detention may only be imposed if there is strong suspicion of guilt and an additional ground for detention. Less severe measures (e.g., pledge, reporting duty, contact ban) must take precedence.
8. Prepare reparation strategically.
   Payments, symbolic gestures, apologies, or other compensatory offers should be handled and documented exclusively through the defense. Structured reparation can positively influence diversion and sentencing.

Your Benefits with Legal Assistance

Cases of unauthorized medical treatment involve sensitive infringements on physical integrity and the right to self-determination. Crucial is whether a treatment was actually performed without effective consent and whether the situation objectively required immediate medical intervention. Even small differences in the process, in communication, in the documentation of consent, or in the actual assessment of a supposed emergency can significantly alter the legal evaluation.

Early legal representation ensures that medical records, conversation histories, treatment procedures, and statements are correctly evaluated, fully documented, and examined in the correct legal context. Only a precise analysis reveals whether the accusation of unauthorized treatment is justified or whether misunderstandings, missing documentation, or a comprehensible misjudgment exist.

Our law firm

• examines whether a treatment actually occurred without effective consent,
• analyzes medical records, conversations, and procedures for gaps, contradictions, and unclear points,
• protects you from one-sided presentations, premature accusations of guilt, and misleading documentation,
• develops a clear defense or claim strategy that comprehensibly presents the actual medical process.

As specialists in criminal law, we ensure that the accusation of unauthorized medical treatment is legally precisely examined and that the proceedings are conducted on a complete, realistic, and balanced factual basis.

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FAQ – Frequently Asked Questions

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