Traditionally, when talking about places of detention in Ukraine and violations of the rights of people held there, psychiatric institutions are often in the shadows. It should be acknowledged that prisons traditionally come first, which is logical given the number of people held there and the concentration of human rights violations in prisons, which are often the most brutal. At the same time, the issue of observance of the rights of people subjected to compulsory medical measures remains largely unresolved.

According to Article 18 of the Law of Ukraine “On Psychiatric Care“, a person who has committed socially dangerous acts and respecting whom a court has applied compulsory medical measures is discharged by a court decision. However, there are cases when, after doctors submit petitions to the court to extend or terminate the application of compulsory medical measures, such cases are often not considered for a long time. As a result, patients continue to be held in psychiatric institutions without a court decision, which leads to a violation of their right to liberty and security of person.

This is precisely what the Ombudsman drew attention to in his Report “On the state of affairs regarding the prevention of torture and other cruel, inhuman or degrading treatment or punishment in Ukraine in 2023″.

For example, the Ombudsman found that some patients were kept in hospital for a long time without a court order to extend or terminate compulsory medical measures (Dnipro Branch of the Special Institution for Psychiatric Care of the State Institution “Institute of Forensic Psychiatry of the Ministry of Health of Ukraine”). According to employees of the branch, the court postpones consideration of cases concerning the extension or termination of compulsory medical measures (up to several months).

Moreover, this problem has ceased to be a national issue and has been identified by the European Court of Human Rights in its recent judgment in the case of Tsyoge fon Manteyfel v. Ukraine (application no. 29804/16, judgment of 11 January 2024).

However, the problem is more acute than it seems. Today, an even greater threat to human rights has emerged on the agenda, which is as follows: people who should already be released from the relevant institutions continue to be held in a state of detention to obtain funding for these institutions.

Thus, based on the results of the analysis of the activities of places of detention in 2023, the Ombudsman concluded that there is no mechanism in Ukraine to prevent the abuse of the extension of compulsory medical measures to obtain additional funding. In other words, in the twenty-first century, the authorities and Ukrainian society faced a veiled slavery.

Therefore, in this discussion, we would like to present to the attention of specialists and all those interested in the prevention of ill-treatment in places of detention the peculiarities of financing compulsory medical measures.

Until 2023, there were two mechanisms for financing compulsory medical measures:

1. At the expense of funds from the State Budget of Ukraine separately allocated to the Ministry of Health of Ukraine.
2. At the expense of a subvention from the State Budget to local budgets to support certain institutions and activities in the healthcare system.

It should be emphasised that both mechanisms did not provide for the dependence of funding on the length of a person’s stay in a healthcare facility.

Since 2023, two mechanisms for financing compulsory medical measures have been introduced, one of which creates conditions under which a healthcare facility receives monthly funding for each patient. Discharging a patient under such conditions becomes economically unprofitable for a healthcare facility.

However, starting from 2025, the Ministry of Finance proposes to introduce only this mechanism for financing compulsory medical measures. In other words, we are talking about a very real threat of a patient’s actual lifelong stay in a healthcare facility. In fact, the only way for a patient to leave this healthcare facility is to die.

Therefore, the readers are invited to read opinions on one of the most pressing issues in the field of torture prevention today – how to avoid abuses during the stay of patients in institutions where coercive medical measures are used.

Dr Serhii Shum, one of the most well-known psychiatrists and reformers of the psychiatric care system in Ukraine, will share his thoughts.

D.Y.: Dear Doctor, thank you very much for taking the time to discuss an issue that is more than important and indicates real risks of gross violations of the rights of persons held in places of detention. Could you start by very briefly outlining why this is important and why it is, in fact, a problem?

S.S.:  My sincere greetings to all readers of the Anti-Corruption Platform.

To begin with, imagine an abstract prison whose funding depends on the number of prisoners in it and the length of their stay. At the same time, let’s imagine that the period for which prisoners are placed in this institution is not set by the court, and the continuation of their stay or release depends on the head of the institution itself. For example, in the case of dangerous criminals serving life sentences. And, more importantly, the funding of such a conditional prison depends on the number of prisoners and the length of time a prisoner stays in such an institution.

D.Y.:  Indeed, it is difficult to imagine, although, for example, the issue of releasing life prisoners has been and remains problematic both in Ukraine and in some other Council of Europe countries. Therefore, such an imaginary model of treatment of patients is at an absolute distance from the CPT standards and ECHR precedents.

S.S.:  I will say more: it is difficult to imagine such a model even in dystopias, but this is precisely the funding model that has been introduced in Ukraine since 2023. We are talking about 15 out of 16 existing specialised mental health care facilities (forensic psychiatry clinics).

To understand the situation, it is necessary to recall how the system of forensic psychiatry is regulated in Ukraine.

Pursuant to Article 19 of the Criminal Code of Ukraine, a person who, at the time of committing a socially dangerous act under this Code, was in a state of insanity, i.e. could not be aware of his or her actions (inaction) or control them because of a chronic mental illness, temporary mental disorder, dementia, or other disease state of mind, shall not be subject to criminal liability. Such a person may be subject to compulsory medical measures by a court decision.

Article 92 of the Criminal Code of Ukraine stipulates that compulsory medical measures include the provision of outpatient psychiatric care, placement of a person who has committed a socially dangerous act that falls within the scope of an act under the Special Part of the Criminal Code of Ukraine in a special medical institution for the purpose of compulsory treatment, as well as prevention of the commission of socially dangerous acts.

Part 4 of Article 503 of the Code of Criminal Procedure of Ukraine provides that compulsory medical measures are applied exclusively to persons who are socially dangerous.

In other words, compulsory medical measures are measures of a criminal law nature, applied exclusively to persons with mental disorders who have committed socially dangerous acts and are socially dangerous, to prevent them from committing socially dangerous acts, which are applied in a special healthcare facility.

Articles 94 and 95 of the Criminal Code of Ukraine, Article 513(2), Article 514(1) of the Code of Criminal Procedure of Ukraine provide that the application and termination of compulsory medical measures depends on the mental state of the person, the gravity of the act committed and the degree of danger of the mentally ill person to himself or herself or other persons and is carried out by court order because of the opinion of psychiatrists.

D.Y.: Yes, theoretically, the construction is logical and typical for European democratic states. What is the threat to human rights in Ukraine?

S.S.:  The current Ukrainian network of special psychiatric care facilities (forensic psychiatry clinics) includes 16 healthcare facilities, 15 of which are municipal non-profit enterprises (i.e. owned by communities), 1 is a state-owned healthcare facility that falls under the management of the Ministry of Health of Ukraine and is funded by the State Budget of Ukraine separately allocated to the Ministry of Health of Ukraine (owned by the state).

As of 01 April 2024, a total of 1602 patients were treated in these special mental health care facilities (forensic psychiatry clinics). 

Of these, 546 patients (34%) were in a state-owned healthcare facility that belongs to the state.

At the same time, as of 01 July 2022 (before the introduction of the new funding model), 1436 patients were treated in these special mental health care facilities (forensic psychiatry clinics). Of these, 609 patients (42%) were treated in a state-owned healthcare facility that is managed by the state.

As can be seen, the number of patients in the state-owned healthcare facility, which belongs to the sphere of state administration, decreased by 63 (10.3%) during the specified period (from 01.07.2022 to 01.04.2024).

In addition, out of these 546 people in the institution, 14 were evacuated on 17 October 2023 from the municipal non-profit enterprise due to the actions of the aggressor state in the Kherson region.

In Ukraine as a whole, the number of such patients has increased by 166 patients due to municipal non-profit enterprises, which had 827 patients before receiving information about the new funding model, and currently have 1056 patients.

In other words, if we consider the discharge of 63 patients from a state healthcare facility, it turns out that in Ukraine, municipal psychiatric institutions have increased the number of patients by 229 people.

During this period, the following changes in financing took place (introduced from 1 January 2023, information about these changes became known in August 2022).  Municipal non-profit enterprises received a financial incentive to retain patients.

In fact, this is precisely what the document because of which funding is received provides for:

For healthcare providers included in the list of special mental healthcare facilities approved by the Ministry of Health, the actual cost of inpatient mental healthcare services for adults and children provided under each contract is calculated as the sum of the global rate per month and the product of the rate of UAH 13151 and the number of patients for whom the healthcare provider provided compulsory medical measures according to the electronic healthcare system during the reporting month.

It turns out that the amount of money received by a municipal non-profit enterprise is calculated monthly and depends on the number of patients. The more patients and the longer they stay in the institution, the more money the institution will receive. At the same time, discharge from the institution is carried out by a court decision based on the opinion of psychiatrists.

D.Y.:  The prospect of turning psychiatric institutions into a kind of ‘slavery’ is very “interesting”. It is no coincidence that the CPT, in its 32nd General Report¹, stressed that even in European countries, many people are improperly detained in large psychiatric institutions without any hope of returning to society, which is very detrimental to their well-being. Ukraine really runs the risk of being judged negatively by European institutions.

S.S.:  This comparison can be used for explanatory purposes. But the ‘loss of hope for returning to society’ accurately describes the threats that have been created by this funding mechanism. 

I would also like to refer to the Ombudsman’s report “On the state of affairs regarding the prevention of torture and other cruel, inhuman or degrading treatment or punishment in Ukraine in 2023“. Due to the change in funding for compulsory medical measures in municipal non-profit enterprises, we received funding for the institution is made dependent on the length of the patient’s stay;

• a contradiction has been created between the private interest of the institution to receive as much funding as possible and the interest of the state to protect the rights, freedoms and legitimate interests of persons suffering from mental disorders and held in places of detention by a court decision;
• the interest of the institution to receive funding affects the objectivity and impartiality of doctors’ decisions on the appropriateness of further stay of patients in the institution;
• the right of patients to timely discharge is violated, and the treatment period is unreasonably extended to increase the profits of the healthcare facility;
• violation of the principles of psychiatric care (observance of human and civil rights, sufficiency of treatment measures).

We must pay tribute to this report, as it raises the most pressing issue we are discussing.

The Ombudsman gives a specific example:

In the municipal non-profit enterprise Lviv Regional Clinical Psychiatric Hospital, a change in the way compulsory medical measures are financed in 2023 makes the institution’s funding dependent on the length of time a patient stays in the institution. This may cause a conflict between the private interest of the institution to receive as much funding as possible and the interest of the state to protect the rights, freedoms and legitimate interests of persons suffering from mental disorders and held in places of detention by court order. The interest of the institution to receive funding may affect the objectivity and impartiality of medical decisions on the appropriateness of further stay of patients in the institution and may lead to violations of patients’ rights to timely discharge, unreasonable prolongation of treatment to increase the profits of the healthcare institution. According to the hospital’s CEO, in 2023, due to the stay of patients undergoing compulsory medical measures, the hospital recorded a budget surplus for the first time.

So, the problems we are referring to are not hypotheses or presumptions. These are real problems that exist today, which may have significant negative consequences for Ukraine’s status as a state governed by the rule of law.

D.Y.: The CPT has consistently emphasised that a patient who has been committed to a psychiatric institution without his or her consent should be released as soon as his or her mental health allows². Therefore, the need for institutionalisation should be reviewed regularly at regular intervals. Furthermore, the patient should be able to make requests at reasonable intervals so that the need for his or her detention is reviewed by a judicial authority³. Moreover, patients should be informed of the possibility of submitting an opinion of an independent psychiatrist of their choice, if necessary, at public expense, during the discharge procedure⁴.

S.S.:  That is why we can say that financial levers pose a real threat to distorting the clear and specific principles that the CPT indicates and that are provided for in the Criminal Code of Ukraine, the CPC of Ukraine, and the Law of Ukraine “On Psychiatric Care”.

Therefore, to remedy the situation, it is advisable to create a structured, institutionally organised, capable network of special institutions for the provision of psychiatric care, funded by the State Budget of Ukraine, separately allocated to the Ministry of Health of Ukraine.

This will create a capable network of specialised mental health care facilities for the whole of Ukraine, with guarantees of independence and impartiality in deciding whether a patient should be admitted to a facility.

1. 32nd General Report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. Strasbourg: Council of Europe, March 2023. P. 10. ↩︎
2. Placement of a person in a psychiatric institution without his or her consent. 8th General Report, CPT/Inf(98)12-part, 1998. П. 56. ↩︎
3. Placement of a person in a psychiatric institution without his or her consent. 8th General Report, CPT/Inf(98)12-part, 1998. П. 56. ↩︎
4. Report on the visit to Cyprus carried out by the CPT from 2 to 9 February 2017, Para 138, P. 68. ↩︎