A judicial expert is obliged to personally carry out the expert report. A breach of the obligation to produce the expert report on one's own responsibility can lead to the loss of the entitlement to remuneration. The commissioning court and the (prospective) expert are therefore well advised to communicate foreseeable difficulties with regard to qualification, the submission time or the content of the order openly and in good time. This enables the court to either modify or specify the expert's remit or, if necessary, to choose another expert; the expert is spared misunderstandings and conflicts.
Detention in an inpatient mental health facility can justify liability claims from patients if their medical treatment did not conform with medical standards or was incorrect in any other way. If hospitals violate their duties of care or if they don't provide safe treatment procedures, but also if detention in hospital or the execution of detention was unlawful, liability claims can arise. Further reasons may be untoward incidents following release from detention and incorrect medical reports. The paper reviews recent case law but does not cover criminal consequences or liability claims arising from outpatient treatment. The review does not provide much reason for optimism from a patient perspective. Organisational fault appears to be more promising than other types of liability. Medical doctors seem to enjoy broad margins of discretion in their treatment decisions.
Germany's Federal Court of Justice holds that the treating physician can also act as an expert witness in cases of detention in a psychiatric hospital. If the expert witness then uses information gained during the treatment of the individual to prepare the report, the court is permitted to use such information even if it was obtained from the individual without his or her consent and passed on to the court against professional rules on confidentiality. To avoid procedural risks and to maintain a trustful relationship between patient and physician, it is argued to call independent expert witnesses not involved in the treatment of the individual in cases of detention in psychiatric facilities.
Civil detention in German guardianship law is commonly used to detain people with mental health problems in psychiatric hospitals. According to the legislators' intentions, however, this form of detention lacks in procedural regulations. This is based on unrealistic and constitutionally problematic concepts regarding the tasks of the guardian, the hospital and the guardianship court. Urgent legal reforms to shape and to limit the confinements on human rights involved in civil detention are required.
