04 May Prolongation of placement in psychiatric institution not based on recent medical expert opinion violated the Convention

In the case of Miklić v. Croatia (application no. 41023/19, 07.04.2022) the European Court of Human Rights held, unanimously, that there had been a violation of Article 5 § 1 (right to liberty and security) of the European Convention on Human Rights. 

The case concerned Mr Miklić’s placement in a psychiatric institution after his conviction on charges of intrusive and threatening behaviour committed as a minor and while lacking mental capacity. 

The Court reiterated that no deprivation of liberty of a person considered to be of unsound mind could be deemed to be in conformity with Article 5 § 1 (e) if it had been ordered without seeking a sufficiently recent opinion of a medical expert. 

In the present case, the Court observed that, under section 37(2) of the Protection of Persons with Mental Disorders Act, when deciding on the periodic prolongation of a person’s compulsory confinement or his or her request for out-of-hospital treatment, the domestic court is, as a rule, obliged to obtain a fresh expert opinion from a person not employed by the institution concerned. Mr Miklić’s lawyer had submitted a request for a fresh expert opinion, but her request had been rejected because “the requirements for the continuation of the applicant’s compulsory [confinement] had not been called into question”. Replying to the same request at the appeal stage, the appellate court stated that an expert evaluation had already been carried out during his treatment. In the Court’s view, none of these explanations justified the fact that no fresh expert evaluation had been ordered in Mr Miklić’s case, as prescribed by domestic law. 

Furthermore, as Mr Miklić rightly pointed out, the Rijeka County Court had had ample time to obtain a fresh expert opinion between the moment he had submitted his proposal for out-patient treatment on 8 November 2018, and the holding of the court hearing on 13 February 2019 before the previous decision expired on 4 March 2019. Instead, despite the fact that the proceedings had been considered urgent under domestic law, the County Court had waited three months before taking any action on Mr Miklić’s application for release. The Court did not find any justification for such an excessive delay. Even assuming that the domestic court had decided to apply the exceptional procedure as prescribed in section 37(3) of the Protection of Persons with Mental Disorders Act, it had not obtained an opinion from a new psychiatric expert. Indeed, the only person who had given an opinion on the need for Mr Miklić’s continued confinement, on which the decision of 13 February 2019 was based, was a doctor from the hospital who had been involved in the previous decisions prolonging his confinement. 

Having refused Mr Miklić’s proposal to obtain a fresh expert opinion, the domestic courts had based their decisions on expert evaluations which had not only initially disagreed on the applicant’s diagnosis, but had been carried out one to two years previously. In such circumstances, the Court was not convinced that either of the expert opinions could be considered both objective and recent within the meaning of the Court’s case-law. When Mr Miklić’s placement was being prolonged for the first time, the appeal court had instructed the first-instance court to obtain a fresh expert report, but it had not done so. Given that Mr Miklić had previously shown changes in his condition, in order to obtain the most accurate information on his mental state at the time of his request for discharge, the court should at least have sought a fresh medical expert opinion at that point. 

The foregoing meant that it was not necessary for the Court to examine whether he should have been kept in psychiatric detention or not. There had accordingly been a violation of Article 5 § 1.

Reference from the official website of the European Court of Human Rights