Higher Social Court (LSG) - Rhineland-Palatinate, Decision as of 2/23/2006
File number L 4 B 33/06

Summary

In a decision of the Higher Social Court in which one of the issues was an application claiming bias on the part of an expert, the court held that a court-ordered physical examination by a medical doctor constitutes a serious encroachment on the right to personal privacy and on the human dignity of the person being examined. A refusal by such person to be examined would be deemed a breach of the so-called duty to cooperate, which would entitle the court to assess the refusal to the person’s detriment. It is therefore practically impossible for such persons to avoid such examinations. In light of this, the Higher Social Court was of the opinion that the principle of a fair trial demands that consideration be shown to the person that has to be examined. Therefore to exclude confidants per se from attending such examinations is untenable, and the taking of another person to such examinations is justified even if the reasons for doing so are immaterial. The expert however, in the opinion of the court, may only refuse to perform an examination in the presence of a confidant if there are sound and material reasons for doing so.

In this case, the expert had refused to perform the examination claiming that the presence of a third party made it impossible to build a relationship of trust and to make a proper expert examination. The court was of the opinion that such a reason was not only inadequate but that it also justified the refusal to be examined by such expert as it could readily be understood that the person who was supposed to be examined would distrust the objectivity of such an expert after this.

Decision in full text: