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Positivt fra høring om tvangslovgivning

NFU jobbet iherdig for å få en gjennomgang av tvangslovgivningen. Tvangslovutvalgets forslag representerte ikke noe epokegjørende. Høringsrunden, gir imidlertid håp om etableringen av beslutningsstøtte.

Departementet sliter med å få lagt ut høringsuttalelsene. Rundt 50 uttalelser er ikke lagt ut enda. Sivilombudsmannen har fått utsatt høringsfrist, noe som også andre kan ha fått. Men høringsuttalelsene viser en klar bevegelse.

Stor og bred motstand fra brukerorganisasjonene innen psykososiale funksjonsnedsettelser og utviklingshemmingsfeltet

Med unntak av Mental Helse, synes brukerorganisasjonene innen utviklingshemming og psykososiale funksjonsnedsettelser å være rimelig samstemte. Det samme gjelder paraplyorganisasjonene FFO og SAFO. En gjennomgående kritikk av forslaget til ny tvangslov, er at det ikke går i retning av FNs funksjonshemmedekonvensjon (CRPD):

"Et gjennomgående problem er at utredningen fortsatt bygger på den samme grunnleggende tankegangen om at funksjonshemmede er «pasienter med særskilte behov». CRPD-komiteen har påpekt i sine anbefalinger at de er bekymret for at det ikke er god nok fremdrift for å erstatte den medisinske modellen med den menneskerettslige modellen. Dette ble støttet opp av FNs spesialrapportør for rettighetene til mennesker med nedsatt funksjonsevne, Catalina Devandas Aguilar i sluttrapporten fra hennes Norgesbesøk.1 Spesialrapportøren fremmet tilsvarende kritikk av tvangslovsutvalgets forslag som FNkomiteen kom med overfor dagens lovverk. I stedet for å frata pasienter og brukere deres samtykkekompetanse, bør en satse på hjelp og tilrettelegging slik at flest mulig kan bli samtykkekompetente og sikre beslutninger som er i samsvar med den enkeltes vilje. Spesialrapportøren uttaler at forslaget til ny tvangsbegrensningslov svikter i å oppfylle internasjonale menneskerettighetsstandarder. Det må tas på alvor", skriver Funksjonshemmedes Fellesorganisasjon (FFO) i sin høringsuttalelse.

Samarbeidsforumet av funksjonshemmedes organisasjoner (SAFO) hevder også at Tvangslovutvalgets flertall ikke tar funksjonshemmedekonvensjonen på alvor og skriver: "Dagens tvangslover er i strid med funksjonshemmedekonvensjonen og bør erstattes. Det har lite for seg å erstatte ett konvensjonsstridig lovverk med et nytt og like konvensjonsstridig lovverk."

13 arbeidstaker og brukerorganisasjoner leverte en felles uttalelse. Organisasjonene dekket det mest når det gjelder utviklingshemming og svært mye når det gjelder psykososiale funksjonsnedsettelser organisasjonene var:

Foreningen Spekteret, Hvite Ørn, Fellesorganisasjonen (FO) , Norsk forbund for utviklingshemmede (NFU), Stopp Diskrimineringen, We Shall Overcome (WSO), Uloba, Landsforbundet for utviklingshemmede og pårørende (LUPE), Vernepleierforbundet i Delta, Funksjonshemmedes fellesorganisasjon (FFO), Autismeforeningen (AiN) Samarbeidsforumet av funksjonshemmedes organisasjoner (SAFO), Foreningen JAG.

I den felles uttalelsen sies det blant annet at:

"Om det er mulig i dag innenfor den norske virkeligheten å gå direkte fra dagens lovverk til et lovverk som er 100 % i tråd med funksjonshemmede konvensjonen (CRPD) lar vi stå åpent. At man ikke beveger seg i retning av funksjonshemmede konvensjonens (CRPD) grunnleggende forståelse og skifte av modell er ikke akseptabelt. Dette lovforslaget bekrefter en medisinsk modell, og kan ikke sies å gi funksjonshemmede konvensjonen (CRPD) et konkret og forpliktende innhold i norsk kontekst."

Mental Helse Ungdom går mot forslaget til ny tvangslov og siterer og støtter den generelle dissensen:

«Det er ytterst problematisk å fastslå hva beslutningskompetanse er, hvordan en kan avgjøre en persons beslutningskompetanse og hvem som har evner eller bakgrunn til å avgjøre slikt. En kan hevde at det å frata en persons selvbestemmelse er diskriminerende i henhold til CRPD, artikkel 2. I det minste vil mange av dem som fratas sin selvbestemmelse mene at en slik umyndiggjøring ikke er å regne som positiv forskjellsbehandling. Fratakelse av selvbestemmelse begrunnet i funksjonsnedsettelse er i strid med CRPD, artikkel 12 som pålegger partene å «… treffe hensiktsmessige tiltak for å gi mennesker med nedsatt funksjonsevne tilgang til den støtte de kan trenge for å kunne utøve sin rettslige handleevne». Fratakelse av selvbestemmelse er ikke støtte. Selvbestemmelse er blant de mest grunnleggende verdiene i vestlige demokratier. Det å frata folks selvbestemmelse med bakgrunn i funksjonsnedsettelse, bør være et tilbakelagt stadium.

Formallogisk, vil antallet personer som kan underlegges tvangstiltak med et gitt lovverk reduseres når antallet vilkår øker. Imidlertid kan en ikke automatisk trekke en slik slutning for flertallets lovforslag»

Støtteforeningen Aurora har avgitt en svært klarttalende høringsuttalelse hvor de støtter fellesuttalelsen fra de 13 arbeidstaker og brukerorganisasjonene og blant annet sier:

"Tvang er en fallitterklæring, og det er sjokkerende at det norske demokratiet gir rom for et regime med fullmakt til å isolere enkelte borgere fra resten av samfunnet og utsette dem for den mest inngripende formen for tvang; korrigering av uønsket adferd med medisiner ingen på forhånd kan forutse virkningen av."

Foruten Mental Helse, var uttalelsene fra brukerorganisasjonene entydig negative til lovforslaget. Samtlige savnet en tilnærming til FNs funksjonshemmedekonvensjon (CRPD). Det samme gjaldt Fellesorganisasjonen (FO) og Vernepleierforbundet i Delta.

Norges institusjon for menneskerettigheter og likestillings- og diskrimineringsombudet etterlyser beslutningsstøtte

Norges institusjon for menneskerettigheter (NIM) har åpenbart prioritert feltet, noe som kommer klart til uttrykk med deres høringsuttalelse på 62 sider. Rrioriteringen viste seg også ved at NIM inviterte et utvalg av brukerorganisasjoner inne psykososiale funksjonsnedsettelser og utviklingshemming til dialog i forkant av høringsfristen. NIM slår fast at det må etableres et system for beslutningsstøtte, men har en noe tendensiøs fortolkning av at CRPD i visse tilfeller kan tillate at rettslig handleevne fratas med bakgrunn i funksjonsnedsettelse.

Likestillings- og diskrimineringsombudet vektlegger også Norges plikt til å utvikle et beslutningsstøttesystem.

Profesjonene og institusjonene

Fellesorganisasjonen (FO) og Vernepleierne i Delta sto sammen med brukerorganisasjonene i fellesuttalelsen mot tvangslovutvalgets forslag. Fellesforbundet tok imidlertid et annet standpunkt og kom med en rimelig uforståelig kritikk av NFU:

"Fagforbundet finner det bekymringsverdig at noen i et såpass viktig arbeid som en ny lov om tvang ser behovet for å ta ut dissens. Særleg at representanten fra NFU finer det nødvendig. Fagforbundet kan imidlertid ikke se at det medfører riktighet, slik det hevdes i dissensen, at det nye lovforslaget ikke anerkjenner FN-konvensjonen om rettigheter til mennesker med nedsatt funksjonsevne (CRDP).

I CRDP pålegges det å «treffe hensiktsmessige tiltak for å gi mennesker med nedsatt funksjonsevne tilgang til den støtte de kan trenge for å kunne utøve sin rettslige handleevne» Det å frata personer selvbestemmelse med bakgrunn i funksjonsnedsettelse er i beste fall gammeldags. Enhver har rett til og krav på å bli behandlet som et individ. Dette er viktige prinsipper for Fagforbundet også, men slik Fagforbundet ser det kommer ikke lovforslaget i strid med CDPR, snarere oppfatter vi at selvbestemmelsen styrkes. Fagforbundet reagerer også på den mistilliten mot de som arbeider i helse- og omsorgstjenester som uttrykkes i dissensen. Fagforbundet kan ikke støtte dissensen, men mener som sagt at det er bekymringsverdig og må tas på største alvor, når en slik innvending kommer fra en aktør som NFU. Det gir i seg selv grunn til å vurdere på nytt og grundig, om loven ivaretar og på riktig måte innordner seg intensjonene i CRPD."

Flere av de grupper som i dag utøver dagens tvangshjemler tar avstand fra lovforslaget, men med motsatt begrunnelse som brukerorganisasjonene. Norsk psykiatrisk forening mener f.eks. at det kan bli vanskeligere å gi hjelp for å bedre helse- og livssituasjonen til mange mennesker. Legeforeningen fremmer et lignende syn når de skriver:

"Vi vil her understreke at dersom tvang benyttes for lite vil det kunne ha svært alvorlige konsekvenser for pasient og pårørende. Manglende bruk av tvang kan innebære at pasienter ikke får oppfylt sin rett til nødvendig helsehjelp, og dermed også innebære brudd på internasjonale menneskerettigheter. Tvang er i en del tilfeller livreddende behandling. Bruk av tvang redder personer fra å gjøre alvorlig skade på seg selv eller andre. Legeforeningen er bekymret for hvilke konsekvenser det vil ha for pasienter, pårørende og samfunnet dersom terskelen for bruk av tvang heves ytterligere."

Men bildet er langt i fra entydig. Mens Norsk sykepleierforbund og Norsk psykologforening støtter hovedlinjene i lovforslaget, så er Nasjonalt ledernettverk for voksenhabilitering ytterst kritiske og skriver: "Vi mener at innholdet i forslaget kan true pasientenes rettsikkerhet". Tilsvarende vurderinger finner en også i høringsuttalelsen fra Regionalt fagnettverk i Helse Nord: Rettssikkerhet for utviklingshemmede ved lovbrudd.

Regionalt kunnskapssenter for Habilitering ved RKBU/NTNU er gjennomgående kritisk til lovforslaget, savner etterlevelsen av FNs funksjonshemmedekonvensjon, er kritisk til det snevert definerte tvangsbegrepet (motstand eller omgåelse av motstand) og kritisk til lovens skjønsmessige begreper som kan gjøre lovverket tlite regulerende.

Universitetssykehuset Nord-Norge HF avslutter sitt høringssvar med: "Alt i alt er vårt inntrykk at lovutkastet er egnet, og vil antakelig kunne bli bedre enn dagens ordning."

Hva skjer videre?

Helse- og omsorgsminister Bent Høie lanserte slagordet "pasientens helsevesen". Med den rimelig samstemte tilbakemeldingen fra funksjonshemmedes organisasjoner og arbeidstakerorganisasjonene på utviklingshemmingsfeltet, vil det være vanskelig for helse- og omsorgsministeren å gå videre med tvangslovutvalgets forslag. Imidlertid har brukerorganisasjoner, arbeidstakerorganisasjoner, Likestillings- og diskrimineringsombudet, Norges institusjon for menneskerettigheter og flere andre etterlyst beslutningsstøttesystemer. Mens bruken av tvang og makt er kontroversiell, så er det ingen som har reist motforestillinger mot etableringen av beslutningsstøtte. Beslutningsstøtte har relevans på alle livets områder, langt ut over tvangsproblematikken. Justisdepartementet må gjøre noe med vergemålslovgivningen. Høringssvaret fra Profesjonelle vergers interesseorganisasjon, viser at det haster. Kan hende neste skritt, blir en utredning nettopp av beslutningsstøtte?

Jens Petter Gitlesen

25 desember 2019

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