Illustrasjon

Fredrikstads gigantavlastning er i strid med grunnleggende rettigheter

– Det er lett å se for seg at det ikke er til «barnets beste» når 180 barn over tid skal bo på 39 rom, kun sammen med andre barn med en eller annen form for funksjonsjonshemning. Det fremstår som en oppbevaringsfabrikk, sier juridisk rådgiver Monica S Tøllefsen om Fredrikstads planer om gigantavlastning.

Fredrikstad kommune har planer om å etablere en gigantisk avlastningsinstitusjon på den tidligere institusjonen Furutun. Kommunens ca. 180 barn med store funksjonsnedsettelser skal tilbys avlastning på Furutun hvor det etter planene skal lages 39 rom for barn. Både NFU og HBF lokalt protesterer iherdig mot planene som til nå er støttet av partiene Rødt, Ap og Sp.

Bjørnar Laabak, gruppeleder i Fredrikstad Frp og møtende vararepresentant på Stortinget, har fremmet spørsmål til barne- og likestillingsminister Kjell Ingolf Ropstad om de rettslige og politiske føringene for barneavlastning.

Monica Sæbø Tøllefsen er juridisk rådgiver i NFU og har sett på de juridiske føringene for avlastningsboliger.

Er det lovlig å lage slike gigantiske avlastningsinstitusjoner som nå planlegges i Fredrikstad?

– Det planlagte prosjektet synes å være i strid med grunnleggende menneskerettigheter, grunnloven, helse- og omsorgstjenesteloven og pasient og brukerrettighetsloven. Det er såpass mange brudd på konvensjoner og lover at det er krevende å holde oversikten.

Det hevdes fra administrasjonen at det ikke er forbud mot slike store avlastningsinstitusjoner.

– Det er riktig at det ikke finnes lover som sier at det er forbudt med avlastningsinstitusjoner som er større enn så og så mange. Men lover og konvensjoner er ikke en opplisting av alt konkret som er lovlig og alle eventualiteter som er ulovlige. Både konvensjonene og lovene er laget slik at de er generelle og gjelder mange forskjellige konkrete tilfeller.

Hva er det i Grunnloven som gjør en slik gigantavlastning ulovlig?

– Først og fremst § 104 som sier at barnets beste skal ligge til grunn for alle handlinger og beslutninger som angår barn. Barn skal helst vokse opp i familien. Verdighet og sosial trygghet skal sikres. Vi vet at det ikke er til barnets beste å være på slike store institusjoner. Det er f.eks. grunnen til at barnevernet ikke lenger driver med de tidligere store barnehjemmene, men har små barnevernsinstitusjoner som forsøkes å gjøre mest mulig like et ordinært hjem.

– Det er lett å se for seg at det ikke er til «barnets beste» når 180 barn over tid skal bo på 39 rom, kun sammen med andre barn med en eller annen form for funksjonsjonshemning. Det fremstår som en oppbevaringsfabrikk.

– Når Fredrikstad kommune samler barn med store funksjonsnedsettelser på ett sted som i tillegg er institusjonsbebyggelse utenfor de ordinære boområdene, så gir det et klart signal om utenforskap. En bør stille spørsmål om verdigheten er ivaretatt. Både barnekonvensjonen og funksjonshemmedekonvensjonen har bestemmelser mot diskriminering. Funksjonshemmedekonvensjonen og FN-komiteen som overvåker statenes etterlevelse av konvensjonen legger stor vekt på inkludering av funksjonshemmede, og å forhindre at mennesker med nedsatt funksjonsevne segregeres.

– Grunnlovens § 104 er hente fra og en oppsummering av FNs barnekonvensjon.

– Grunnlovens § 102 om vern av privatliv er også aktuell når det gjelder den planlagte avlastningsboligen i Fredrikstad.

Du nevner barnekonvensjonen og funksjonshemmedekonvensjonen, hva av relevans sier disse konvensjonene?

– Barnekonvensjonen skal gjelde alle barn, uten diskriminering på grunnlag av for eksempel funksjonsnedsettelse. Konvensjonen sier at statene «skal sikre at de institusjoner og tjenester som har ansvaret for barns omsorg eller beskyttelse, retter seg etter de standarder som er fastsatt av de kompetente myndigheter, særlig med hensyn til sikkerhet, helse, personalets antall og kvalifikasjoner samt kvalifisert tilsyn». Kommunene har her også ansvar, som utøvere av offentlig myndighet. På slutten av 80-tallet og tidlig på 90-tallet tok man avstand fra «omsorgfabrikker» og oppbevaringsplasser for mennesker med utviklingshemming. Vi vet at slike institusjoner ikke er helsefremmende å være på for noen, heller ikke barn med utviklingshemming. Det stilles spørsmålstegn blant annet ved hvordan personell kvalifikasjon skal ivaretas. En velger ofte å bygge stort for å spare kostnader, dvs. færre ansatte tilgjengelig per barn. Om man så ansetter kompetent personell til et slikt sted, hvordan skal man da få utnyttet slik kompetanse når det er så mange barn med så forskjellige behov? Hvordan sørger man for kontinuitet overfor det enkelte barn, hva gjelder skole, oppdragelse, religion kanskje, kultur – alle slike rettigheter som barnekonvensjonen og funksjonshemmedekonvensjonen stiller krav om? Stort betyr ofte i denne sammenhengen dårligere – på alle de nevnte områdene.

–Barnets beste kommer også frem av funksjonshemmedekonvensjonens artikkel 7. En kan si at funksjonshemmedekonvensjonen dekker det samme som barnekonvensjonen og de andre sentrale menneskerettighetskonvensjpnene. Forskjellen er først og fremst at funksjonshemmedekonvensjonen er spesielt tilpasset mennesker med nedsatt funksjonsevne.

– Men det er svært mye i begge nevnte konvensjoner som er av relevans i denne saken, i tillegg til at andre konvensjoner og Grunnloven har regler som understreker og underbygger reglene i barne- og funksjonshemmdekonvensjonen.

Hvordan stiller den planlagte avlastningsboligen seg i forhold til helse- og omsorgstjenesteloven og pasient- og brukerrettighetsloven?

– Pasient- og brukerrettighetslovens formål er å bidra til å sikre befolkningen lik tilgang på tjenester av god kvalitet ved å gi pasienter og brukere rettigheter overfor helse- og omsorgstjenesten. Lovens bestemmelser skal bidra til å fremme tillitsforholdet mellom pasient og bruker og helse- og omsorgstjenesten, fremme sosial trygghet og ivareta respekten for den enkelte pasients og brukers liv, integritet og menneskeverd, dvs. at det skal gis tjenester og tilbud av god kvalitet, et krav som den planlagte barneavlastningen ikke kan oppfylle. Vi finner igjen mange av de samme prinsippene i pasient- og brukerrettighetsloven, som er nevnt i reglene i barne- og funksjonshemmedekonvensjonen.

- Pasient- og brukerrettighetsloven gir folks rettigheter til tjenester og tilbud. Kommunens plikter finner vi i helse- og omsorgstjenesteloven. Helse- og omsorgstjenesteloven pålegger kommunene å forebygge sosiale problemer, mestring av nedsatt funksjonsevne, sikre en aktiv og meningsfull tilværelse, sikre tjenester av god kvalitet. Tjener og tilbud skal være individuelt tilpasset og de skal ivareta den enkeltes verdighet. Rett og slett gir kommunene plikter som «speiles» av rettighetene gitt i pasient- og brukerrettighetsloven.

Hva bør Fredrikstad og andre kommuner gjøre når de planlegger å etablere nye barneboliger?

– Kommunene må involvere dem tilbudet etableres for, både på individnivå og på systemnivå. Jeg forstår det slik at Fredrikstad kommune verken har involvert målgruppen, verken på individ eller systemnivå. Uten involvering av dem tilbudet gjelder, kan en verken sikre individuell tilpasning, verdighet, sosial trygghet og alle de andre grunnleggende forhold som skal ligge til grunn for omsorgstjenester.

– Det enkleste for kommunene er å følge Helsetilsynets veileder hvor det i kapittel 7.2 sies:

"I de veiledende retningslinjene § 1.1 og 1.2 fremgår det at retningslinjenes formål er å sikre gode og trygge boforhold for barn som trenger heldøgns omsorgstjeneste. Formålet er videre å bidra til gode oppvekstvilkår med mulighet for å bevare integriteten og utvikle selvstendighet. I retningslinjene heter det videre blant annet at ”boligene bør være mest mulig lik et vanlig hjem, med nødvendig tilspasning til barna som skal være der”. Boligene bør ligge gunstig til for skole, fritidsaktiviteter og lekeareal. Boligene bør være eneboliger, rekkehus eller leiligheter i den vanlige boligmassen med tilknyttede utearealer. Det bør ikke etableres boliger hvor flere enn fire barn bor, og det bør ikke være avlastningsplasser der barn bor fast. De som bor sammen bør i størst mulig utstrekning passe sammen i alder, interesser og behov. Det forutsettes at den enkelte har eget værelse, med mindre det foreligger ønske om å dele rom. Fellesrom forutsettes å være tilpasset barnas behov for lek og andre aktiviteter, ut fra alder og interesser."

– Her ser vi igjen at det nevnte er likelydende med det en kan lese ut av barnekonvensjonen, funksjonshemmedekonvensjonen, pasient- og brukerrettighetsloven og helse- og omsorgstjenesteloven. En skulle tro at så bred oppslutning om de samme verdiene og prinsippene ville tale klart og tydelig om hvordan det er greit å utforme en avlastning for barn.

Vi får håpe at politikerne i Fredrikstad innser at de er på ville veier og at både Fredrikstad og andre kommuner kan trekke lærdom av prosessen slik at fremtidige planleggingsinteresser baseres på brukermedvirkning og et avlastningstilbud som er godt innenfor grunnleggende menneskerettigheter og norsk lovverk.

3 mai 2020

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