Gro Hillestad Thune is human rights
legal adviser with 15 years of work experience as a member (judge) of the Strasbourg
Commission.
IN
NORWAY LATELY, there has been a lot of discussion about the use of
force and
power on different groups that are in one way or the other bothersome.
The last
group that some argue has to be institutionalised are problematic
children,
“the worst ones”. Otherwise the discussion has been
focusing on the use of
force within the public care giving and health institutions. The groups
this
refers to are drug addicts, mentally challenged, psychiatric patients
and
elderly senile.
‘ACTION LIGHT’
I
WILL RESTRAIN MYSELF from saying much about this debate. But it is not
impressive at all, either with reference to the making the case or
being
conscious of these difficult ethical problems connected to allowing the
use of
force on single individuals in the public system. This is a form of
violation
and it is dangerous when suggestions are made to allow the use of
physical
force in a panic attempt to solve a difficult problem. “It is
good to be
allowed to use force.” Yes, of course it can be in acute
situations. But the
use of force can lead us in dangerous directions. The use of physical
force and
the power of society have been rendered ‘innocent’.
Unfortunately,
I think that this is exactly what happens when politicians who wish to
present
themselves as tough, light and nice suggest more use of force. It is
very obvious
how loosely the word ‘force’ is used. It is oversimplifying
the debate we are
witnessing.
THE
NEWS IS full of non-reflected remarks about stricter punishments and
more
effective control measures. Recently we also heard that there is a
problem that
trial witnesses are terrified after being exposed to serious threats.
Suggestion for medicine: New Law. The ones who actually take the time
to think
through all this understand that this is not going to solve any
problems. In my
opinion many have exaggerated ideas of what belief in what lawyers can
manage.
As soon as we make up a new law, everything is going to be fine.
Unfortunately
it is never that easy to sort out conflicting reality.
THIS OF COURSE DOES NOT MEAN that that there is no need for rules, but
we have
to be realistic about what can be achieved and we have to be aware of
the
dangers that are always connected to a rule that allows the use of
force.
This
also goes for the health and social sector, where a lot of the newer
legislations are made in this way: Psychiatry law – Ot.prp. nr 11
for 98/99.
The Social Ministry also warned ahead of time that the suggestion of
law for
the use of force on elderly in institutions patterned alike the rules
for
mentally challenged.
THESE LEGAL REFORMS had raised a lot of difficult questions, also in
relation
to Human Rights.
Before
I say anything about this, let me clarify that: Sometimes it is
necessary to
use force with people that in some way or the other are of danger to
themselves
or others. This is not about only the right of the ones who are around
them,
but also a moral and legal duty. We are therefore in an area of
‘acute
right’.
FORCE AS
TREATMENT
THE
PROBLEM WE ARE facing in Norway today is that actually considerable
force is
applied in ‘acute right’. The use of force is seen as part
of treatment and
care for psychiatric patients, mentally challenged and for elderly who
are
senile. We hear that Norway is on the top of the European list of
countries
that use forced admission of psychiatric patients. There is a general
worry
about the size of force both in psychiatry, in nursing homes and what
was
earlier called HVPU. We say that the use of force has to be reduced.
When we
take a closer look at use of force legislations that have been
introduced
lately, it is a very good question of how seriously this is meant.
WHY ISN’T THERE a bigger effort from the different supervision and
control
instances whose task is to watch out? Aren’t they doing their
job? Or is it
that one thinks that the use of force is not all that bad after all,
under the
condition that it is done in ordered forms so that the necessary authority
is regained?
FROM
DOCTORS, nurses, psychologists, etc. – there are outcries for
legislating
the use of force so that they would know where to draw the line. This
is of
course presented as a contribution to ensure the patients and clients
the
necessary insurance.
It
sounds undeniably trustworthy: Of course it is important to have better
security. Those that have these difficult and demanding jobs have of
course the
right to get clear instructions about what they do and do not have the
right to
do. It is according to this that the legislator works on creating laws
that
will realise such goals- pull up the necessary limits and in that way
create
the necessary security.
EVEN THOUGHT THE GOAL in itself might be good, it is not as certain
that the
results of these attempts are necessarily coordinated according to
Human Rights
or the very basic legislative principles that we otherwise have.
In
this connection it is important to stress that it is not always easy to
decide
whether a law is in conflict with Human rights or not. This does not
only
depend on the legal text itself, but how it is practiced. The media and
the
politicians desire a quick answer. Is the law in collision with Human
Rights?
The question about violation and infringement has to be decided
correctly: How
a law is applied in relation to human experiences in concrete
situations. An
irresponsible form of use of force does not always lead to
infringement, if it
is applied carefully in practice. The fact that is ‘a form of
it’ is a problem,
because the legislator cannot be sure that the use of force will not be
taken
advantage of or even misused. In the area we are discussing now –
laws that welcome
and regulate different forms of use of force – the legislator,
the Ministry and
Stortinget (The Norwegian parliament)
have a clear responsibility to evaluate whether the frameworks for
which these
are suggested are as narrow as Human Rights demand. It is not enough to
just
see the good intentions. Neither is it satisfying to fill out the
paragraphs
and remarks with opinions and promises about the protection of the
individual
value of human life. The legislator has to go much further in amongst
other things
their basic analyses of how the law is expected to work in practice, in
different kind of situations. The fact that we get a new law is not in
itself a
guarantee for better legal protection or that the care staffs get an
easier job
either.
I REMIND YOU THAT WE AREhere talking
about establishing use of force, and at the same time extension the
right of
the staff within the health care and social care to force people to do
something they otherwise wouldn’t do voluntarily.
In
human rights this is in itself problematic because these are
permanently deeply
rooted in the basic principal that all the people: A president of USA
as much
as a helpless autistic person has a right for his body, integrity and
human
value to be respected. This concerns everyone and it is always valid.
AND IT IS VALID whether we like the person or not, if they act stupid
and
create intentional irritation, and even if they create serious problems
for
people around them. We have to accept the fact that we cannot do what
we want
with the societies “problem children” without colliding
with the values that we
otherwise cherish.
From
such a perspective Norwegian legislators have to be particularly
careful not to
go too far when giving the employees of the public help and care system
the
permission to do something that actually contains physical abuse with
some of
us. It is important for the legislator to understand that such
permissions will
always have a potential for misuse. This is why one has to make sure to
reduce,
if not prevent, the danger of misuse and that the cases of going to far
will be
heavily penalised.
THE STRASBOURG COURT has in number of
court decisions during the last couple of
years placed concrete quality demands to the legislations that allow
the use of
force, and to the quality of law. This means that a law that allows the
use of
force has to at the same time establish the necessary security net,
which
prevents that the use of force is misused. This means that there are an
effective care and control, possibilities for complaint and reactions
towards
the ones who cross the line.
THE
POSITIONS AND PROPOSITIONS that deal with and legalise different forms
of
forced treatment do not demonstrate enough these types of reflections.
Norway
is an expert on human rights, especially outside the country’s border,
but we
are not sufficiently aware of the need for ensuring the practice of
human
rights at home in Norway. I do not know whether this is a problem of
lack of
will or lack of capability, probably it is both. The documents where
the
suggestions are presented contain references both to human rights
decisions and
an overview over lawgiving in other countries. One claims that one
knows which
concrete human rights decisions are relevant. On the other hand one is
not able
to take the next step, to see to what degree the individual decisions
suggested
satisfy these frameworks. What I want is a more basic inquiry, at least
an
attempt of inquiring into whatever the law in reality shall regulate.
This of
course can be very difficult, but we have at least to try. It is not
enough to
state the need for respect for the individual human value in paragraphs
and
remarks. The deciding factor is that one takes the consequences which
are to
follow into consideration when creating the legislations – or at
least in a
procedural rules, control and possibilities for making a complaint.
TODAY, WHAT THE NORWEGIAN legislators are
trying to achieve is to establish
special laws for use of force on particular groups. This is in
collision with
the general development, which is moving towards normalising and
equality of
status. This is also in collision with what is suggested in Denmark,
common
rules for use of force in particular forms of destructive and dangerous
behaviour, independent of which “group” the individual
belongs to: Mentally
challenged, brain damaged, senile-dements or manic depressive.
THE CONTROL OF
USE OF PHYSICAL FORCE
THE
TWO BASIC QUESTIONS we have to ask inn relation to laws that support
different
forms of use of physical force are:
Is the
support of use of physical force strict enough, or is one going too far
in accepting arguments for the fact that the use of physical force is
necessary?
Is there a
good enough complain, care, control instance connected to the use of
physical force so that it will be possible to stop in advance those who
are willing to go further than what is allowed?
Let
us connect these questions to the following: The law for mentally
challenged
and the law for psychiatry:
ARE
PERMISSIONS TOO LOOSE? In my opinion the answer is YES! In relation to
the
mentally challenged Stortinget had gone too far, by for the first time
in
history to make behaviour therapy mixed with the use of physical force
(the so
called negative reinforcement) into an acceptable method of treatment.
This is
done against the clear advice from a big group of experts who think
that this
method is neither justifiable nor necessary. Stortinget did not dare to
take
into proper discussion the traditional attitudes within HVPU-care.
There is no
immediate reason to blame all this on the fact that: if the Social
Ministry’s
and the Social Commission’s intentions with this law are followed
up, then
there will not be much treatment with the use of physical force to
apply.There
are also those who argue that the
permission for the use of force had become so narrow that one has to
count on
bigger evasion of the law. The need for more effective supervision is
clearly
reaching forward. Anyway, the debate about the relationship between the
law
that supports the use of physical force and human rights had given some
positive developments. Someone had woke up, others had received the
support for
what they always thought: That power and use of physical force should
not have
a place in supervision and care giving of people who were born with a
bit
(less?) more hand luggage then the rest of us.
ANYHOW,
IT IS VERY IMPORTANT to notice that Norway in this case is going
against the
tendencies in Europe otherwise, where an effort has been made to put an
effective end to this form for brutal and inhuman treatment of
patients. In
Norway one first has to ask the Regional Commissioner for permission,
but both
the preceding evaluations and the follow up has to be conducted by
experts that
have been aware of the fact that they lack the basic understanding and
respect
for value of human life. The brutal misuse of physical force has been
documented a number of times, and these facts have been recognised by
the
experts. The research shows that such treatment has an almost
non-existent
positive effect, and that it can only have the opposite effect such as
humiliation and damaging to the total life quality.
ALSO THE SECOND QUESTION, whether the security is good enough, has to
be
answered with: NO! How is one suppose to be able to watch out for
treatment by
use of physical force that is going on in private apartments, conducted
by the
Communal and Care Ministry-apparatus, through the hands of many
uneducated care
givers, when earlier one could not even handle the control of treatment
in a
limited number of institutions?
WITHIN THE LAW THE Regional Commissioner had been given different and
sometimes
conflicting roles. The Regional Commissionaire shall first give on
beforehand
permissions and after that conduct control. In this way one had given
the
execution and controlling responsibility to one and the same instance,
which is
in contradiction with basic rules of power division, which are being
applied in
this part of society.
When
certain Regional Commissionaires wrote to Stortinget to warn that one
cannot
have both functions at the same time, politicians just shrug their
shoulders
and argued back that this is just another one of the sneaky attempts of
trying
to get more budget allowances.
THE PSYCHIATRY
LAW WARNS INCREASED USE OF PHYSICAL FORCE
IT
IS VERY SHOCKING to see that the right to use physical force is
extending.
Persons can also be taken from their private homes by the use of
physical force
and placed into psychiatric care. Luckily the earlier suggestion that
treatment
with the use of physical force should be also realisable within private
homes,
but there are still possibilities to by use of physical force people
are
removed from their own private homes. The scope of the alternative
forms for
treatment by use of physical force includes also conversations and
group
therapies.
THE CONTROL COMMISSION, which in many contexts is shown as
dysfunctional, is
meant to secure patients legal protection. The Health Ministry secures
the
independence of the Control Commission in paragraph 6.3 in the proposed
legislation, it says: “The Control commission is independent in
its function”.
By claiming so the Ministry had refused to see that the independence
actually
is about persons and role-conflicts and nevertheless whether the
particular organ
has the necessary trustworthiness. Such trustworthiness is never
achieved by
such legal decisions alone.
THE RECOMMENDATIONS FROM the European Board that the admissions by use
of
physical force can only take place as result of a court decision,
Norway
decided to overlook. Here the responsibility and the power are still in
the
hands of doctors. Communal doctors shall, due to suggestion §5-3
and also on
their own initiative, or the initiative of the relatives, be able to
apply the
permission make the inquiry by the use of physical force. This
permission shall
be in written form, but it says precisely that the decision will not be
open to
any form for complaint. Almost all the communal doctors are of course
responsible and reasonable. This is NOT the case. Legal protection is
about
understanding that some of them are not, and demanding that patients
shall have
an actual and practical possibility to defend themselves against
exactly those
doctors. It is not easy to see how this decision can fit well with the
conditions from the example of the court of appeal in the European
Human Rights
Convention, article 13.
It
is amazing the that Norwegian authorities keep going in the old tracks,
while
the legislators for example in Holland and Denmark to a higher degree
are
trying to think anew, and thus increase the pressure on experts to
accept as
high a degree of voluntariness as possible.
VOLUNTARY
USE OF PHYSICAL FORCE
OR USE OF PHYSICAL FORCE – VOLUNTARY
THE
USE OF PHYSICAL FORCE and power can be both effective and cheap, but it
always
has to remain the absolutely necessary solution. It does not help that
the goal
is care and treatment. That kind of treatment is probably even more
dangerous.
The good purposes make it in a way more protected from critique.
Anyhow, we
have to keep repeating that it is still a form of violation. To put it
a more
frankly, it just does something to both the violator and its victim.
The fact
that the one and the same person is supposed to care and use physical
force
influences the attitude and disturbs the balanced relationship of
equality, and
the mutual respect that has to be there in the relationship between the
professional carer and the person in need of care.
IN SUCH PERSPECTIVE it is completely unacceptable, as the situation is
in many
places today, that entrance to psychiatric institutions is so narrow
that
voluntary requests for help is met with an offer of the three-week
admission
with the use of physical force as the only alternative. Think about the
shock
when for example a person after a long time of hesitation has accepted
the fact
that he needs help with its psychological problems. What happens to his
trust
in the health care-system – a trust that maybe is an absolute
condition for the
treatment to work at all…? The main cause of this is to be found
in a major
downsizing of psychiatric care.
To
reverse this and create enough treatment places for those who really
need them
would probably be the best contribution to a reduction of the amount of
admission by the use of physical force in this country. But this does
not mean
that it is not interesting to see how legislations are formed.
THE PROPOSAL THAT Stortinget accepted gave further framework for the
use of
physical force, by giving this opportunity, at least theoretically, to
many
others within the public and communal care-system. This is in itself
doubtful,
at least due to legal protection. Very simply, there will be more of
those one
will have to control and more of those who can get tempted to go too
far.
As
mentioned earlier, it is not possible to formulate the rules in such
detail as
to eliminate the need for the use of reason. Thereby the law is not of
much
help to those who are in practice forced to take such difficult
decisions.
ONE GETS THE IMPRESSION that for the time being one is so busy creating
ordered
allowance relations that one forgets how dangerous allowance for the
use of
physical force is because they always implicitly invite also to
over-use.
Simple, and cheap in times of saving the money, but this is a very
dangerous
short cut to take. Allowing the use of physical force moves the
boundaries and
influences the attitudes of the persons who need the least to have
their
self-esteem reduced and value diminished. Most of us just shrugging our
shoulders: “They are so difficult that a bit of use of physical
force is
probably necessary, and then it is just fine that this can be regulated
through
the law.” I hope that I managed to demonstrate how dangerous this
over-simplification is. We all have the indirect responsibility and
obligation
to protest against an oversimplified treatment of public use of power
as a
solution to difficult and complicated problems.
