Faksimile fra Fontene

Tvangslovutvalgets forslag medfører mindre rettsikkerhet og mer diskriminering

Tvangslovutvalgets leder, professor Bjørn Henning Østenstad argumenterer for utvalgets forslag til ny tvangslov går i retning av konvensjonen om funksjonshemmedes rettigheter (CRPD) og et bidrag til styrking av utviklingshemmedes rettsikkerhet. Jeg vil hevde det motsatte og at lovforslaget heller ikke løser noen av de vesentlige problemene med dagens tvangslovverk.

Tvangslovutvalgets leder, professor Bjørn Henning Østenstad argumenterer for utvalgets forslag til ny tvangslov i Fontene den 26. juni i år. Han hevder at utvalgets forslag er i retning av konvensjonen om funksjonshemmedes rettigheter (CRPD) og et bidrag til styrking av utviklingshemmedes rettsikkerhet. Jeg vil hevde det motsatte. Utvalgslederen beklager seg også over negative kommentarer på Internett.

Utvalgslederen bør ha en toleranse som minst er på nivå med president Trump

I følge Østenstad skal utvalgets forslag på sosiale medier blitt møtt med kommentarer om «Holdninger fra nazitiden» og utsagn om at det kan bli nødvendig «å rømme landet». Nazi-beskyldninger har jeg ikke sett, men en trelinjers i kommentar om å rømme landet, kan en finne på NFUs facebooksider. Selv om Tvangslovutvalget verken har søkt informasjon eller innsyn i spesielt tvilsomme tvangssaker om mennesker med utviklingshemming, så bør en være klar over at mange kan ha gode grunner til å oppfatte situasjonen som umenneskelig. Selv om en skulle mene at kommentarer er usaklig, så er det heller ingen grunn til å sensurere kommentaren. Når Trump godtar et hav av usaklige kommentarer til sine Twittermeldinger, så bør utvalgslederen godta langt mindre krenkende kommentarer.

Kan hende utvalgslederen heller bør svare på kommentarene som han misliker enn å beklage seg over dem i debattinnlegg?

Norsk boligpolitikk skal ikke utformes i tvangslovverket

Tvangsbegrensningslovens kapittel 7 heter: Rettighetsbegrensende tiltak og tvang i institusjon eller bolig av hensyn til fellesskapsinteresser. Kapittelet gir kommunen myndighet til å innføre restriksjoner overfor boliger hvor det ytes «heldøgns helse- og omsorgstjenester».

Tvangslovutvalget avgenset seg fra å se på nærliggende tvangslover som straffeloven og vergemålsloven. De mest krevende sakene ligger i disse krysningspunktene. Hvis det trengs klarere retningslinjer for boliger, så bør slike reguleringer bør fortrinnsvis komme i husleieloven eller andre deler av boligpolitikken, ikke i tvangslovgivningen.

Tvangslovutvalget svekker utviklingshemmedes rettsikkerhet

Lovforslaget åpner for å anvende antatt samtykke til tvang, dvs. at tiltak som i dag regnes som tvang, ikke skal regnes som tvang dersom en kan anta at personen ville ha samtykket til tiltaket dersom personen hadde vært samtykkekompetent. Det er villedende når svekket vern mot tvang markedsføres som økt selvbestemmelse eller som økt rettsikkerhet.

Om det er en bedring av situasjonen at det hjemles bruk av elektrosjokk, vil det nok også være ulike syn på.

Utvalgets flertall mener at listen for tvang ligger for lavt. I lovforslaget innføres derfor to former for tvang. Tiltak som personen motsetter seg og tiltak som personen ikke motsetter seg. Tiltak som en ikke motsetter seg, har svake rettsikkerhetsgarantier enn med dagens lovverk.

Det er pussig når professor Østenstad fremstiller det som et fremskritt at tvangslovverket kun skal gjelde dem med manglende samtykkekompetanse. Erfaringene fra vergemålsfeltet med samtykkekompetanse, forteller om en skjønsmessig sump hvor rettsikkerheten kan være fraværende.

Nylig publiserte Dagsavisen noen historier om «Karl» som er tungt medisinert, under tvangsvedtak og frivillig vergemål, men fratatt samtykkekompetansen i spørsmål om vergemål, personlige- og økonomiske forhold, inngåelse av juridisk bindende kontrakter eller til å vurdere valg av bosted. Når «Karl» sier til tjenesteyterne som utøver tvangstiltakene at han er fornøyd med situasjonen, så vektlegges det. Når han til pårørende og bekjente sier det motsatte, så fortolkes det som utslag av manglende samtykkekompetanse.

I Tvangslovutvalgets 813 siders innstilling, så har en også valt å ikke foreta en nærmere drøfting og presisering av begrepet samtykkekompetanse. Det er altså ytterst uklart hvem som kan underlegges tvang.

Tvangsbegrensningsnemnd og andre papirtigre

I lovforslaget etableres tvangsbegrensningsnemder, bestående av jurist, lege og en person som har vært under tvang. Nemndene skal utøve kontroll med tvangsutøvelsen, foreta klagebehandling og ha et klart mandat om å begrense tvangsbruken. En bør absolutt stille spørsmål med hva som er å vinne med å innføre en slik nemnd. Målsetningen om å begrense tvangsbruken finnes allerede i dagens lovverk. Det er vanskelig å se at den tilfører noe mer enn det som allerede ligger i fylkesmannskontroll, kontrollkomisjoner, fylkesnemdene og tilsyn i regi av Helsetilsynet. Noen særlige begrunnelser for at en slik nemnd skal fungere bedre enn dagens ordninger, kan en heller ikke finne i utredningen.

Bruken av antpsykotika vil, i det minste på papiret, underlegges strengere krav. En kan reservere seg mot slik behandling ved forhåndserklæringer, men det forutsetter at en er samtykkekompetent og tidligere har vært psykotisk. Få om noen med utviklingshemming vil oppfylle betingelsene for reservasjon. Da står en igjen med dagens krav som aldri har vært spesielt begrensende.

Teksten i lovforslaget inneholder flere restriksjoner på medikamentell behandling. Felles for dem, er at de neppe vil virke spesielt begrensende på bruken av antipsykotika, antidepressiva eller andre legemidler som brukes i håp om å regulere oppførselen til mennesker med utviklingshemming.

Tvangslovutvalgets forslag, inneholder en tilsynelatende innstramming i forhold til helse- og omsorgstjenestelovens kapittel 9. Mens dagens lovverk sier at tvang kan benyttes for å unngå vesentlig skade på seg selv eller andre, så er forslaget fra Tvangslovutvalget at tvang kan benyttes for å unngå vesentlig helseskade. Om en kan ha personskader som ikke kvalifiserer som helseskade, har jeg vanskelig for å se. Med tanke på helse- og omsorgstjenestelovens kapittel 9, så synes overgangen fra skade til helseskade å være rent språklig.

Tvangsbegrensningsloven ignorer CRPD

Jeg finner ikke spor av CRPD i forslaget til ny tvangslov. Riktig nok er omtale lovforslaget bare unntaksvis diagnoser, men CRPD sier lite om diagnoser. Derimot fastslår konvensjonen klart at funksjonsnedsettelse ikke er et argument for å frata folk rettslig handleevne (artikkel 12). Artikkel 14 slår fast at "nedsatt funksjonsevne ikke i noe tilfelle skal rettferdiggjøre frihetsberøvelse". Forslaget til ny tvangsbegrensningslov gjelder kun dem som mangler samtykkekompetanse, dvs. personer med permanent eller midlertidig nedsatt kognitivt funksjonsnivå. Når lovens utgangspunkt er i strid med CRPD og det heller ikke er noe i lovens innhold som bygger på CRPD, så er det vanskelig å forstå de som hevder at lovforslaget går i retning av CRPD.

Den 7. mai kom CRPD-komiteen med sine anbefalinger til Norge. Blant anbefalingene finner vi f.eks:

  • Ikke underkjenn, men bidra til å bygge opp samtykkekompetansen til mennesker med kognitive eller psykososiale funksjonsnedsettelser.
  • Fjern alle lover som tillater tvangsbehandling med bakgrunn i nedsatt funksjonsevne.
  • Avskaff tvangsmetoder som restriksjoner, isolasjon, segregering, ufrivillig behandling og andre inngripende metoder overfor personer med kognitive eller psykososiale funksjonshemminger.
  • Forby elektrosjokk og andre inngripende og ikkereversible tiltak som gis med tvang.
  • Etabler en deinstitusjonaliseringsplan.

Tvangsreduksjonsloven går i stikk motsatt retning av CRPD-komiteens anbefalinger.

Problemet med forslaget til ny lov, er at der er mer å betrakte som en sammenstilling av eksisterende lovverk enn et nytt lovverk. Lovforslaget drar med seg de samme grunnleggende problemene som en sliter med i eksisterende lovverk. Fra mitt ståsted, er det vanskelig å se at utredningen verken tar opp eller løser noen av de alvorlige forholden knyttet til dagens tvangslovverk. Selv grunnleggende spørsmål om hvilken grad loven regulerer dagens praksisen eller praksisen regulerer lovens innhold, kan en ikke finne vurderinger av i noen av utredningens 813 sider.

Jens Petter Gitlesen

8 juli 2019

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