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      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.


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’.  


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 ARE  here 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 TWO BASIC QUESTIONS we have to ask inn relation to laws that support different forms of use of physical force are:

  1. 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?
  2. 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.


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.


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. 






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