Miklić v Croatia
Summary
A child committed offences of intrusive behaviour and threats while lacking mental capacity. Relying on psychiatric and psychological expert opinions, the court placed him in a psychiatric hospital. His requests for fresh expert opinion were subsequently refused and his detention continued. He claimed that his Article 5(1)(e) rights were breached because of a failure to follow the procedure prescribed by domestic law.
The ECtHR reiterated that no deprivation of liberty conforms with Article 5(1)(e) without seeking the opinion of a medical expert and "the objectivity of the medical expertise entails a requirement that it was sufficiently recent, the assessment of which depends on the specific circumstances of the case before it" (para 63). Not only had the domestic procedure been breached by failing to obtain a fresh opinion but the evidence relied upon to warrant his continued confinement was 1-2 years old and "the Court is not convinced that either of those expert opinions could be considered both objective and recent within the meaning of the Court's case-law on Article 5 § 1 (e)" (para 74). Fresh medical expert opinion should have been sought because, inter alia, being of a very young age he had shown changes in his condition, a privately-commissioned medical opinion implied his condition and evolved, and so more accurate information was needed (para 75).
So, contrary to Article 5(1)(e), the prolonging of his detention "had on the whole been adopted in a procedure at odds with the relevant provisions of the domestic legislation and had not been based on objective and recent medical expert opinion" (para 76).
Comment
We mention this case because of its potential relevance to the liberty protection safeguards. First, the case illustrates that care will need to be taken when obtaining medical evidence for young people, as there may not be a clear diagnosis or their condition may evolve. Second, there will be an issue regarding for how long the medical opinion can be relied upon, particularly when a 3-year renewal of the authorised arrangements is being contemplated. Whilst "sufficiently recent" depends on the "specific circumstances", as far as we are aware there is no ECtHR case where detention under Article 5(1)(e) has been authorised for three years based upon the predicted persistence of the mental disorder. That is not of course to say it would necessarily be contrary to Article 5(1)(e) to do so, but LPS certainly will test the court's jurisprudential boundaries.
