Norges lover

Vergemål, gransking og vilje

Justisminister Tor Mikkel Wara skal ha ros for den varslede granskingen på vergemålsfeltet. Det er positivt at regjeringen har startet ryddeprosessen, men det er ingen enkel ryddejobb som står for tur.

Etter hva jeg forstår, er det snakk om minst 16.000 vergemålssaker hvor personer under vergemål ikke er funnet kompetente til å samtykke til vergemålet. De fleste tilfellene er kommet etter vi fikk den nye vergemålsloven i 2013, men noen saker stammer fra før den tid.

Justis-, beredskaps- og innvandringsminister Tor Mikkel Wara har varlset granskning for å finne de som måtte ha blitt underlagt vergemål mot deres vilje. Mens saksmengden er overveldende er løsningen langt i fra umiddelbar. Hvordan skal en finnne ut om vergemålet er opprettet mot en persons vilje?

Saken om Magnus fra Tolga var ukomplisert. Magnus uttalte klart å tydelig at han ikke ønsket å være under vergemål. Imidlertid kan det være adskillig mer krevende å finne ut hva personer med svak språkforståelse, mangelfullt eller manglende språk måtte mene.

Betingelsene som svarene gis under, kan påvirke svarene. Mennesket er svært tilpasningsdyktig og mange med utviklingshemming er svært avmektige. Spesielt avmektige er de som lever under strenge og inngripende tvangstiltak. Svarene som gis kan godt være tilpasset det en forventer at spørsmålstilleren ønsker å høre.

Det kan også være problematisk å skille mellom det å være under vergemål og det å ha en verge som ikke taler en sak eller ikke taler ens sak godt nok. Begge forholdene er imidlertid like alvorlige og må inngå i granskingen.

Skal en utøve granskingen på en forsvarlig måte, så kan det være fornuftig å skille mellom de opplagte og de utfordrende sakene. De opplagte sakene er hvor personer med god språkforståelse klart, tydelig og vedvarende enten uttrykker sitt ønske om vergemål eller det motsatte. De utfordrende sakene er de hvor en ikke får klare og tydelige svar, svaret avhenger av hvem som spørr eller en må fortolke personen. All den tid Norge ikke har begynt arbeidet med å etablere beslutningstøtte, så er det neppe annen måte å løse de utfordrende sakene på enn å forhøre seg med personen selv, pårørende, tjenesteytere, registrere de ulike betraktningene og fatte en beslutning basert på momentene som inngår i saken.

Departementet foreslår i høringsnotatet om endringer i vergemålsloven å utvide personkretsen som har rettslig klageinteresse. Et slikt perspektiv bør også legges til grunn for sakene som behandles. Det finnes ingen andre enkle måter å forvisse seg om at vergemålet er i samsvar med personens vilje og preferanser.

En må unngå at granskingen resulterer i like alvorlige overgrep som praksisen skal granskes. Det er ikke nok med ordkløyveri som f.eks. å erstatte samtykke med vilje og påstå at dagens situasjon er i samsvar med personens vilje. For dem som ikke uttrykker seg like klart som Magnus i fra Tolga, krever det en innsats for å finne ut hva som er viljen. Fortolkninger er kan være vanskelige og de er ofte heller ikke entydige.

Jens Petter Gitlesen

17 november 2018

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