Forsidene til tvangslovutvalgets innstilling og FN-konvensjonen

Tvangsbegrensningsloven vs. konvensjonen om funksjonshemmedes rettigheter

Forslaget til ny tvangslov er i strid med FN-konvensjonen om funksjonshemmedes rettigheter på svært mange områder. Konvensjonen nevnes, men den benyttes ikke.

Tvangslovgivningen i helse- og omsorgslovverket var i strid med FN-konvensjonen om rettighetene til mennesker med nedsatt funksjonsevne. Forslaget til ny tvangslov er i vel så stor grad i strid med konvensjonen som eksisterende lovverk, blant annet bør det stilles spørsmål med lovforslagets samsvar med følgende artikler:

  • Artikkel 1: Formål
    Formålets første ledd sier: "Denne konvensjon har som formål å fremme, verne om og sikre mennesker med nedsatt funksjonsevne full og likeverdig rett til å nyte alle menneskerettigheter og grunnleggende friheter, og å fremme respekten for deres iboende verdighet"
    Lovforslaget legitimerer fratakelse av menneskerettigheter og grunnleggende friheter og bygger på manglende respekt for utviklingshemmedes iboende verdighet.
  • Artikkel 2: Definisjoner
    Lovforslaget er diskriminerende, på samme måte som eksisterende lovverk. Hovedkriteriet for tvangsbruk er manglende beslutningskompetanse, dvs. personer med kognitive eller psykososiale funksjonsnedsettelser.
  • Artikkel 12: Likhet for loven
    På grunn av funksjonsnedsettelsen, blir en fratatt den selvbestemmelsen som andre innbyggere har. Det bygges heller ikke opp den hjelp og støtte som den enkelte kan ha behov for slik at vedkommende kan utnytte sin selvbestemmelse.
  • Artikkel 14: Frihet og personlig sikkerhet
    Lovforslaget sier at mennesker med visse funksjonsnedsettelser kan fratas sin frihet, begrunnet i funksjonsnedsettelsen.
  • Artikkel 15: Frihet fra tortur eller grusom, umenneskelig eller nedverdigende behandling eller straff
    Elektrosjokk og andre ikkereversible og potensielt skadelige behandlinger, plasserer FN-komiteen i denne kategorien. Lovforslaget vil legalisere behandlingsformen.
    Bruk av mageleie er ofret en stor plass i avsnittet "Særlig om mageleie som skadeavvergende tiltak". Systematisk bruk av mageleie i nødssituasjoner, bør absolutt vurderes med hensyn til artikkel 15.
  • Artikkel 17: Vern om personlig integritet
    Lovforslaget omgjør hjemmene til dem som bor i "boliger med heldøgns omsorg" til institusjoner hvor tjenestene har store fullmakter til å ta seg til rette. Slike fullmakter er i strid med artikkel 17.
  • Artikkel 19: Retten til et selvstendig liv og til å være en del av samfunnet
    Konvensjonsbestemmelsene brytes på flere måter. Ved å omgjøre folks hjem til en slags hybridinstitusjoner (boliger med heldøgns omsorg), så bryter en punkt a som sier "at mennesker med nedsatt funksjonsevne har anledning til å velge bosted, og hvor og med hvem de skal bo, på lik linje med andre, og ikke må bo i en bestemt boform,"
    Artikkelens punkt b sier at "at mennesker med nedsatt funksjonsevne har tilgang til ulike støttetjenester i eget hjem og i særskilte boformer, samt annen samfunnsservice, herunder den personlige bistand som er nødvendig for å kunne bo og være inkludert i samfunnet og for å hindre isolasjon eller segregering". Lovforslagets reguleringen av "omsorgsboliger med heldøgns omsorg" omgjør folks hjem til en slags institusjoner og legitimerer det å nekte folk samfunnsdeltakelse, forslaget fremmer segregering og legitimerer isolasjon.
  • Artiklene 22 og 23 Respekt for privatlivet og Respekt for hjemmet og familien
    Lovforslaget åpner for å omgjøre bofellesskap fra hjem til hybridinstitusjoner under tjenestenes kontroll.
  • Artikkel 26: Habilitering og rehabilitering
    Store deler av behandlingen som lovforslaget åpner for, går i motsatt retning av artikkel 26. Svært mange vil få større problemer av de tvangsregimene som lovforslaget åpner for. Slik er det i dag, slik åpner lovforslaget at det kan fortsette. Det er et paradoks at blant de svært mange som kommer seg ut av habiliteringstjenesten, de kommunale bofellesskapene og får seg brukerstyrt personlig assistanse, så forsvinner også behovet for tvangstiltak.
  • Artiklene 27, 28, 29 og 30 omfatter yrkesdeltakelse, sosial trygghet samt deltakelse i samfunnslivet, dvs. god medisin for de fleste. Utvalget berører ikke slike aspekt men betraker visse typer problematisk oppførsel som en konstant og noe som må forhindres og "behandles" med tvang.

En sak er at lovutvalget har ignorert det menneskerettslige grunnlaget. Langt verre er det at Tvangslovutvalget har overfokusert på behovet for tvang. Da mister de også poenget med at mennesker som er fornøyd og trives, oftest oppfører seg rimelig bra. Det er vanskelig å se at tvang er den rette medisin mot mistrivsel og uheldige livsbetingelser.

Jens Petter Gitlesen

23 juni 2019

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