Norges lover

Vergemålsloven må skrotes

I kjølvannet av Tolgasaken bør de fleste ha sett at vergemålsloven er en alvorlig trussel mot selvbestemmelsesretten. Spesielt stor er trusselen overfor dem som har størst problemer med å utnytte sin selvbestemmelsesrett.

Den nye vergemålsloven er ikke ny

Vergemålsutvalget overleverte sin innstilling til tidligere justisminister Odd Einar Dørum i 2004. I 2006 ble FN-konvensjonen om rettighetene til mennesker med nedsatt funksjonsevne fremforhandlet. Dette er grunnen til at vergemålsloven ikke er i samsvar med konvensjonen.

FN-konvensjonens artikkel 12, slår fast at mennesker med nedsatt funksjonsevne har rettslig handleevne på lik linje med andre. Vergemålsloven åpner for fratakelse av rettslig handleevne samt fratakelse av samtykkekompetanse, slik som Tolga-brødrene ble utsatt for.

Både vergemålsloven og konvensjonen bygger på erkjennelsen at alle ikke evner å bestemme selv. I slike tilfeller kan vergen eller fylkesmannens vergemålsavdeling bestemme over personen. Slik sett er vergemålsloven vår mest anvendte tvangslov, utenom straffeloven. FN-konvensjonen går den motsatte veien. Evner en ikke å bestemme selv, så skal en få hjelp til å bestemme, såkalt beslutningsstøtte. Vergemålsloven sier ikke noe om beslutningsstøtte.

En historisk forståelse av vergemål

Vi fikk en ny vergemålslov for å unngå den utbredte "snikumyndiggjøringen" som en mente fant sted under den forrige vergemålsloven som var fra 1927. Siden innføringen av den nye vergemålsloven i 2013, har NFU forsøkt å varsle fylkesmannens vergemålsavdeling, Statens sivilrettsforvaltning og Justisdepartementet om en praksis som er blitt verre: Flere blir i praksis umyndiggjort og færre får den hjelpen som de har rett på. Lite skjedde før Riksrevisjonen startet arbeidet med sin rapport om vergemålsreformen. Da kom Justisdepartementet men en lovtolkning som i større grad vekta den vergetrengendes selvbestemmelse og Statens sivilrettsforvaltning fulgte opp med noe mer forståelige presiseringer.

Nylig kom Peru med et lovverk som skal sikre beslutningsstøtte til dem som trenger hjelp for å utøve sin selvbestemmelse. Costa Rica har allerede kommet med en lignende lov og lignende lovarbeid er startet i rundt 30 andre land. Norge har ikke begynt arbeidet med å sikre en vergemålslov som er i samsvar med FN-konvensjonen om rettighetene til mennesker med nedsatt funksjonsevne.

Fylkesmannen i Hedmark har topper NFUs verstingliste når det gjelder umyndiggjøring av mennesker med utviklingshemming. I så godt som samtlige saker hvor NFU har vært involvert, er umyndiggjøringen velsignet av Statens sivilrettsforvaltning. Men domstolene synes å henge enda lenger etter.

"Vurdering av samtykkekompetanse har vert gjennomført flere ganger etter anmodning av vergemålsmyndigheten, senest sommeren 2015, alle med samme resultat KVINNEN har ikke samtykkekompetanse. Spørsmålet om samtykkekompetanse er ikke gjenstand for klage. Retten legger til grunn at KVINNEN ikke er samtykkekompetent", kan en lese i dom fra Sør-Østerdal tingrett. Retten tar for gitt at kvinnen er umyndiggjort på all områder, uten at kvinnen kan påklage umyndiggjøringen. Det hører med til historien at kvinnen har full rettslig handleevne.

Nylig gikk en kvinne til sak mot fylkesmannen i Oslo fordi hun ikke ønsket sin oppnevnte verge som bestemte over henne. Kvinnen vant ikke frem i tingretten. Tingretten stadfestet at kvinnen hadde full rettslig handleevne, men fant det greit at hun, mot sin vilje, ble underlagt en verge som kunne bestemme over henne. NFU ønsket å bistå kvinnen i lagmannsrettens behandling som partshjelper, noe Fylkesmannen i Oslo og Akershus protesterte mot. Lagmannsretten godtok fylkesmannens protest. Avgjørelsen ble anket til Høyesteretts ankeutvalg som opprettholdt lagmannsrettens begrunnelse. Fra begrunnelsen kan en lese:

"Lagmannsretten antar at de regler som gjelder for behandling av saker om vergemål, naturlig må forstås slik at partshjelp ikke er tillatt. Retten finner støtte for et slikt syn blant annet i Rt. 1983 side 998 U med videre henvisning til forarbeidene til den tidligere umyndiggjørelsesloven og i juridisk teori, jf. op. cit. side 480. Det må legges til grunn at en rett for en interesseorganisasjon, som her, til å erklære partshjelp i vergemålssaker, med påfølgende krav på å være til stede i rettsmøter, komme til orde og ellers foreta prosesshandlinger til klargjøring av de rettslige spørsmål som begrunner intervensjonen, jf. tvisteloven § 15-7 fjerde ledd første punktum, ville stride mot vergemålslovens system. Etter lagmannsrettens syn taler ikke reelle hensyn eller hensynet til sakens opplysning med tyngde for en annen forståelse."

Når til og med Høyesterett forstår dagens vergemålsordning i lys av forarbeidene til umyndiggjøringsloven av 1898 og andre historiske kilder, så bør både Regjering og Storting forstå at dagens lovverk ikke er dekkende for vår tid.

Umyndiggjøring uten rettsikkerhet

Vergemålsloven inneholder to muligheter for umyndiggjøring. En kan fratas rettslig handleevne til å utøve visse handlinger. Alternativt kan en fratas samtykkekompetansen. Begge mulighetene er av tvilsom natur, men rettsikkerheten er svært forskjellig. Tingretten er førsteinstans som behandler saker om fratakelse av rettslig handleevne. Det er rettshjelpsordninger i slike saker. Den rettslige handleevnen kan kun fratas på spesifikke områder. Samtykkekompetansen fratas med bakgrunn i en legeerklæring. Rettsikkerheten er fraværende og det er ingen rettshjelpsordninger. I praksis er det umulig for den umyndiggjorte å gjenvinne sin myndighet, med mindre en er så heldig å treffe en advokat som fører saken gratis.

Mens fratakelse av rettslig handleevne skjer etter en konkret vurdering, så fratas mennesker med utviklingshemming samtykkekompetansen flatt, på alle områder og som regel uten noen som helst vurdering utover legeerklæringen. Samtykkekompetanse er et begrep som må ut av lovverket. 

En lov om beslutningsstøtte

Norge har forplitet seg til å etterleve FN-konvensjonen om rettighetene til mennesker med nedsatt funksjonsevne. Det er på høy tid at vi begynner arbeidet med å etterleve konvensjonens artikkel 12. Funksjonsnedsettelse i seg selv er ingen begrunnelse for å umyndiggjøre folk. Verken Tolga-brødrene eller andre skal miste sin selvbestemmelse med bakgrunn i en diagnose, uavhengig av om diagnosen er gitt med rette eller urette.

Samtykkekompetanse må fjernes både fra vergemålsloven og alle andre tvangslover. Begrepet et metafysisk og såpass uklart at det rammer mer enn det hjelper. Pasienthistoriene fra psykiatrien er mange. Så lenge en godtar psykiaterens behandling, har en samtykkekompetanse. Godtar en ikke behandlingen, så mangler en sykdomsinnsikt og samtykkekompetanse.

Norge bør lære av Peru. Med unntak av dem som er i koma, så uttrykker alle vilje og holdninger. Noen trenger hjelp for å uttrykke og foreta beslutninger som realiserer deres vilje og preferanser. Slik beslutningsstøtte bør være vergens viktigste oppgave.

Jens Petter Gitlesen

20 oktober 2018

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