FNs funksjonshemmedekonvensjon

Likhet for loven

Vi skal være glade for engasjementet som Norges institusjon for menneskerettigheter (NIM) og Likestillings- og diskrimineringsombudet (LDO) viste i forbindelse med høringssvarene til Tvangslovutvalgets innstilling. Forståelsen til NIM og LDO om fratakelse av rettslig handleevne, kan en imidlertid stille spørsmål med.

To sentrale institusjoner

NIM og LDO står i en spesiell stilling når det gjelder tvangslovgivningen. Begge institusjonene er rimelig uavhengige av myndighetene. LDO har i oppdrag å arbeide for likestilling- og forhindre diskriminering. I tillegg har LDO et tilsynsansvar med FNs kvinnekonvensjon (CEDAW), rasediskrimineringskonvensjon (CERD) og konvensjon om rettar for personer med nedsett funksjonsevne (CRPD). NIM skal blant annet overvåke menneskerettighetenes stilling i Norge, rådgi myndighetene og spre kunnskap om menneskerettighetene.

Det er svært positivt at både NIM og LDO har vist en omfattende engasjement i høringsrunden knyttet til Tvangslovutvalgets innstilling. Engasjementet kommer til uttrykk gjennom et 62 siders høringssvar fra NIM og et 36 siders høringssvar fra LDO. I høringsprosessen arrangerte NIM møte med sentrale brukerorganisasjoner mens LDO arrangerte konferanse med fokus på tvang i psykisk helsevern.

Krav til beslutningsstøtte

Både NIM og LDO hevder at FNs funksjonshemmedekonvensjon krever at det utarbeides et beslutningsstøttesystem. Mange, inkludert FN-komiteen som overvåker statenes etterlevelse av funksjonshemmedkonvensjonen, mener det er i strid med konvensjonen å benytte funksjonsnedsettelse som begrunnelse for å frata personers selvbestemmelse og å anvende tvang og makt. Dette synet deler ikke NIM. LDOs synspunkter er mer uklare.

Diagnose, funksjonsnedsettelse og diskriminering

NIM, LDO og mange andre høringsinstanser synes å knytte funksjonshemmedekonvensjonen til diagnose. "Ombudet mener utvalgets forslag om å stille krav om manglende beslutningskompetanse og antatt samtykke som inngangsvilkår for tvang er skritt i riktig retning - bort fra vektlegging av diagnose" kan en f.eks. lese på side 4 i ombudets hørinssvar. "En særproblemstilling er hvorvidt også kompetansemodeller, slik som den utvalget foreslår, vil være i strid med artikkel 12. I korte trekk går utvalgets kompetansemodell ut på at fravær av beslutningskompetanse – altså at man åpenbart ikke er i stand til å forstå hva en beslutning gjelder – er et inngangsvilkår for en del typer tvangstiltak. Kompetansemodellen er i utgangspunktet en diagnosenøytral modell. Den vil likevel omfatte personer med funksjonsnedsettelser oftere enn personer uten funksjonsnedsettelser.", kan en f.eks. lese på side 21 i NIMs høringssvar.

Fra konvensjonen, finner en ikke diagnose nevnt noe sted. Konvensjonen omhandler ikke diagnoser menn funksjonsnedsettelse.  Funksjonsnedsettelse defineres i artikkel 1:

"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.

Mennesker med nedsatt funksjonsevne er blant annet mennesker med langvarig fysisk, mental, intellektuell eller sensorisk funksjonsnedsettelse som i møte med ulike barrierer kan hindre dem i å delta fullt ut og på en effektiv måte i samfunnet, på lik linje med andre."

Manglende evne til å se konsekvensen av egne handlinger er åpenbart en funksjonsnedsettelse. Når NIM skriver at kompetansemodellen "... vil likevel omfatte personer med funksjonsnedsettelser oftere enn personer uten funksjonsnedsettelser", så uttrykker de seg for svakt. Kompetansemodellen rammer kun personer med funksjonsnedsettelse, kan hende med unntak av personer i koma. Slik artikkel 1, 2. ledd er formulert, så kan en diskutere om koma er en funksjonsnedsettelse. Det vil være umulig å bedre deres samfunnsdeltakelse ved tilrettelegging. 

Når kompetansemodellen utelukkende omfatter personer med funksjonsnedsettele (kanskje med unntak av personer i koma), så er tvangslovgivningen som bygger på slike modeller like lite i samsvar med funksjonshemmedekonvensjonen som lovgivning som bygger på diagnoser. Dette kommer også klart frem i veilederen til funksjonshemmedekonvensjonens artikkel 12, blant annet i pkt. 15.

"In most of the State party reports that the Committee has examined so far, the concepts of mental and legal capacity have been conflated so that where a person is considered to have impaired decision-making skills, often because of a cognitive or psychosocial disability, his or her legal capacity to make a particular decision is consequently removed. This is decided simply on the basis of the diagnosis of an impairment (status approach), or where a person makes a decision that is considered to have negative consequences (outcome approach), or where a person’s decision-making skills are considered to be deficient (functional approach). The functional approach attempts to assess mental capacity and deny legal capacity accordingly. It is often based on whether a person can understand the nature and consequences of a decision and/or whether he or she can use or weigh the relevant information. This approach is flawed for two key reasons: (a) it is discriminatorily applied to people with disabilities; and (b) it presumes to be able to accurately assess the inner-workings of the human mind and, when the person does not pass the assessment, it then denies him or her a core human right — the right to equal recognition before the law. In all of those approaches, a person’s disability and/or decisionmaking skills are taken as legitimate grounds for denying his or her legal capacity and lowering his or her status as a person before the law. Article 12 does not permit such discriminatory denial of legal capacity, but, rather, requires that support be provided in the exercise of legal capacity."

Hvem kan fratas rettslig handleevne?

Det er noe uklart hva LDO mener om å frata mennesker med nedsatt funksjonsevne deres samtykkekompetanse. Jeg finner ikke anbefalinger eller uttalelser i klar tekst. Det fremstår imidlertid åpenbart at forebygging av behovet for tvangstiltak og tilrettelegging gjennom beslutningsstøtte er opplagte førstevalg. LDO gir en viss støtte til Tvangslovutvalgets flertall som mener at det kan være greit å frata personer deres samtykkekompetanse etter en konkret og individuell vurdering. En slik oppfatning kan være innenfor rammen av funksjonshemmedekonvensjonen dersom de konkrete og individuelle forholdene som begrunner fratakelsen av rettslig handleevne ikke er funksjonsnedsettelsen.

NIM har en litt mer tendensiøs fortolkning og argumenterer på sidene 15 til 31 for at funksjonshemmedekonvensjonens artikkel 12 åpner for at en under visse vilkår kan frihetsberøve personer. Etter en gjennomgang av konvensjonens engelske orginaltekst, blir konklusjonen (se side 23):

"NIM mener at ordlyden i artikkel 12 lest i sammenheng kan åpne for å gjøre begrensninger i en persons rettslige handleevne hvis disse innrammes av rettsikkerhetsgarantier, er proporsjonale og varer i kortest mulig tid."

Begrunnelsen er at artikkel 12, pkt. 2: "States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life", uttrykker en relativt svak forpliktelse. NIM forsøker å knytte fortolkningen opp mot funksjonshemmedekonvensjonens formål, artikkel 25 om rett til helsehjelp, artikkel 10 om retten til liv og artikkel 15 om frihet fra tortur eller grusom, umenneskelig eller nedverdigende behandling eller straff og andre forhold.

En kritikk av NIMs forståelse

Mange vil utvilsomt ha problemer med at setningen "States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life" er forenelig med fratakelse av samtykkekompetanse. En vel så rimelig forståelse av setningen er den motsatte av NIMs fortolkning, nemlig at en skal akseptere at mennesker med nedsatt funksjonsevne har de samme rettighetene som andre på alle livets områder. En slik direkte oversettelse åpner ikke for å benytte funksjonsevne som begrunnelse i fratakelse av rettslig handleevne.

Gitt NIM sine premisser i vurderingen av ordlyden i funskjonshemmedekonvensjonens artikkel 12, så følger er det på ingen måte åpenbart at artikkelen åpner for å frata mennesker med nedsatt funksjonsevne deres rettslige handleevne, heller motsatt. Når NIM konkluderer med at ordlyden i artikkel 12 kan åpne for å gjøre begrensninger i en persons rettslige handleevne, så må begrepet "kan" være i betydningen "kan eller kan ikke".

Gjennomgående i NIMs drøfting, er at tvang i helsevesenet kan være et gode som i tillegg kan forhindre forhold som fornedring (artikkel 15), reduserer sjansen for selvmord (artikkel 10) og sikrer god helsehjelp (artikkel 25). Det finnes et hav av individhistorier som bekrefter et slikt syn. Imidlertid kan en også finne de motsatte historiene. I NIMs tolkning av artikkel 12, ser det heller ikke til skadevirkningene av umyndiggjøring og tvangsbruk. Forståelsen av tvangsbruk som et gode eller onde, er et springende punkt. Ser man på høringssvarene til Norsk psykiatrisk forening og Den norske legeforening, så vil en se at funksjonshemmedekonvensjonen ikke er nevnt og en sterk vektlegging på helsehjelp og positive sider med tvangsbruk. Ser en på uttalelsene fra brukerorganisasjonene innen psykososiale funksjonsnedsettelser og utviklingshemming (utenom Mental helse), så vil en se en sterk vektlegging av selvbestemmelsesretten og tvangens negative sider. NIM synes å ha valgt side i den vanskelige og sterkt normative debatten.

Det generelle utgangspunktet for menneskrettighetskonvensjonene er å beskytte utsatte grupper. Ingen andre menneskerettighetskonvensjoner som kvinnekonvensjonen og rasekonvensjonen vektlegger hvilke rettigheter en kan frata gruppen som konvensjonen har som formål å beskytte. Kvinnekonvensjonen brukes ikke til å frata kvinner rettigheter som menn har. Rasekonvensjonen brukes ikke til å frata etniske minoriteter rettigheter som andre har. Det forholder seg motsatt. Det er underlig at NIM legger andre perspektiver til forståelsen av funksjonshemmedekonvensjonen enn tilsvarende konvensjoner for andre grupper.

NIM viser til motstanden mot artikkel 12 under fremforhandlingen av konvensjonen (det som ble til artikkel 12, var til å begynne med i forhandlingene angitt som artikkel 7). Det er litt underlig at argumentasjonen ikke snus. Det var mange som forsøkte å svekke innholdet i det som i dag er artikkel 12, uten å nå frem med kritikken. Det derimot presisert at fratakelse av selvbestemmelse heller ikke skulle tillates med bakgrunn i funksjonsnedsettelse.

Jens Petter Gitlesen

1 januar 2020

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