Innspill: Psykiatrisk tvangsbehandling dvs. diskriminering basert på psykososial funksjonsnedsettelse er bannlyst av FNs torturtilsyn
Sat, 17 Dec 2016 07:54:51 +0100
FNs komité mot tortur 2012: Norge bør sørge for at politiet og relevant helsepersonell får opplæring i Torturkonvensjonen. http://www.fn.no/Tema/Menneskerettigheter/Norge-og-menneskerettighetene/Tortur
Justis- og beredskapsdepartementet
Postboks 8005 Dep,
Kopi: NIM, Menneskerettsorganisasjoner, Pasientorganisasjoner, FFO leverte en rapport
Åpent brev: ref.2016/1265
Innspill FNs konvensjon om sivile og politiske rettigheter:
Psykiatrisk tvangsbehandling dvs. diskriminering basert på
psykososial funksjonsnedsettelse er bannlyst av FNs torturtilsyn
Jeg referer til at Norge skal innen 1. august 2017 levere sin sjuende rapport om gjennomføringen av FNs konvensjon om sivile og politiske rettigheter til FNs menneskerettskomité og inviterer sivilsamfunnet til innspill. Her er mitt innspill, med kopi til sivilt samfunn:
Ifølge Grunnloven § 92 skal «Statens myndigheter (...) respektere og sikre menneskerettighetene slik de er nedfelt i denne grunnlov og i for Norge bindende traktater om menneskerettigheter.»
Norsk rett og praksis må være innenfor rammene av rettslig bindende konvensjoner for Norge. Dersom Norge ikke gjennomfører rettighetene, foreligger det et folkerettsbrudd. (NOU 2016: 17. På lik linje. Kapitel 12-7)
Den velmenende formynderstat legitimerer psykiatrisk tvang som ansees gjort med gode intensjoner og medisinsk nødvendig. De folkerettslige forpliktelsene formulerer FN slik (vedlegg 1):
Side 5 av talen av Special Rapporteur on Torture Juan E Méndez 22. møte i "Human Rights Council" 4. Mars 2013: "States should impose an absolute ban on all forced and non-consensual medical interventions against persons with disabilities, including the non-consensual administration of psychosurgery, electroshock and mind-altering drugs, for both long- and short- term application. The obligation to end forced psychiatric interventions based on grounds of disability is of immediate application and scarce financial resources cannot justify postponement of its implementation."
Report A/HRC/22/53 of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment of 1. February 2013, Section 32: "For example, the mandate has held that the discriminatory character of forced psychiatric interventions, when committed against persons with psychosocial disabilities, satisfies both intent and purpose required under the article 1 of the Convention against Torture, notwithstanding claims of “good intentions” by medical professionals (ibid., paras. 47, 48)". Section 82.: "The prohibition of torture is one of the few absolute and non-derogable human rights, a matter of jus cogens, a peremptory norm of customary international law."
“Dignity must prevail” – An appeal to do away with non-consensual psychiatric treatment World Mental Health Day – Saturday 10 October 2015 «The concept of ‘medical necessity’ behind non-consensual placement and treatment falls short of scientific evidence and sound criteria.»
Sivilombudsmanenns forebyggingsenhet mot tortur tar FN komiteenes tilbakemeldinger på alvor og henviser til FN komiteene. I besøksrapporten av Sivilombudsmannens forebyggingsenhet mot tortur i Sørlandet sykehus, Kristiansand 7.-9. september 2015 står det: “Pasienter som var tvangsmedisinert hadde imidlertid stort sett negative opplevelser som blant annet ble beskrevet som «forferdelig», «grusomt», og «tortur».” VGs har avslørelt at psykiatri er et «rettssikkergetsmessig katastrofeområde».
Pressen har i mange år skrevet at Norge har den høyeste bruk av tvang i psykiatrien i Europa. Allikevel har antall tvangsinnlagte økt med en tredjedel i tiden 2001 til 2015 på tross av tverrpolitisk enighet om reduksjon.
var i forarbeidene til loven om psykisk helsevern Ot.
Prp. Nr. 11 (1998-1999) kapittel 8.4.6. av den oppfatning at
et strengt faglig forsvarlighetskriterium, og et krav om «stor
sannsynlighet» for at tvangsbehandlingen ville ha en positiv effekt,
ville sikre mot overtredelse av menneskerettskonvensjon EMK
Artikkel 3 (Forbud mot tortur). Kjetil
Lund har vist til at kravet om stor sannsynlighet ikke blir
møtt og foreslått å bringe psykiatrien på den riktige siden av
loven med å lytte til FN og fjerne
hjemmel for tvangsmedisinering (vedlegg
Erfaringene fra andre land viser («Martin Zinkler. Germany without Coercive Treatment in Psychiatry—A 15 Month Real World Experience») at det er mulig å forby tvangsbehandling med at hjemmel for det fjernes. Etter «forbudstiden» ble bare 0.5 % av innlagte tvangsmedisinert ca. en tiendel sammenliknet med tallet før. I Norge utgjør tvangsmedisinerte ca. 10 prosent av personene som ble behandlet i det psykiske helsevernet (SINTEF 2012). Det betyr at det blir ca. 20 ganger så mye tvangsmedisinering i Norge av innlagte sammenliknet med Tyskland. Selv om tvangsmedisinering blant innlagte psykiatriske pasienter er bare ca. 5 % av norsk nivå rapporterer pasientorganisasjoner (organisert bl. a. i «Forbund mot tortur i psykiatrien») Tyskland til FN som kriminell stat pga. at tvang i psykiatrien og tvangsmedisinering er fremdeles mulig (The Bundesverband Psychiatrie-BPE-Germany 19.2.2015: «Please condemn Germany as a human rights criminal.»). FNs CRPD komite svarte 17/04/2015: “The Committee is deeply concerned that the State party does not recognize the use of physical and chemical restraints, solitary confinement and other harmful practices as acts of torture.”
Opprop: Avskaff tortur i psykiatrien: http://avskaff-tortur.tk/
Psykiatri: Uhyggelig klokkertro på tvangsmedisinering: http://www.aftenposten.no/meninger/debatt/Psykiatri-Uhyggelig-klokkertro-pa-tvangsmedisinering--Ketil-Lund-580997b.html
Martin Zinkler. Germany without Coercive Treatment in Psychiatry—A 15 Month Real World Experience: http://www.mdpi.com/2075-471X/5/1/15/htm
Urgent Appeal to Norway to discontinue forced treatment and hospitalization by the UN Working Group on Arbitrary Detention, the UN Special Rapporteur on the Rights of Persons with Disabilities and the UN Special Rapporteur on the right to Health datet 30. January 2017 (ref. UA Norway 1/2017).
En mann klaget "tvungen psykisk
helsevern" inn til kontrollkommisjonen, Oslo tingrett, Borgating
lagmannsrett og Høyesterett (2. januar 2015) men fikk ikke medhold.
Fylkesmannen avviste en klage mot medisinsk tvangsbehandling.
FNs appell i saken er basert på den internasjonale konvensjonen om sivile og politiske rettigheter (CCPR), konvensjonen mot tortur (CAT), den internasjonale konvensjonen om økonomiske, sosiale og kulturelle rettigheter (CESCR) og konvensjonen om rettigheter til funksjonshemmede (CRPD). Disse bestemmelsene pålegger en øyeblikkelig forpliktelse til statene om straks å avslutte denne praksis og reformere lover som tillater frihetsberøvelse og tvungen behandling på grunnlag av funksjonshemminger, ved å erstatte disse rutinene med tjenester som møter behovet og som er uttrykt av funksjonshemmedes ønsker og respektere selvstendigheten, valg, verdighet og privatliv.
Mens vi venter på et svar, oppfordrer vi at alle nødvendige foreløpige tiltak treffes for å stoppe de påståtte bruddene og forhindre gjentakelse...
Som en overlevende fra psykiatrien kommer jeg med følgende innspill. Dessverre har staten så langt vært døv for disse folkerettslige forpliktelser, derfor ville det være bortkastet tid å oversette følgende forslag til Norsk :
[CRPD report in Norwegian]
Draft: (sorry for spelling)
Proposal: Parallel Report to the 7th Periodic Report of Norway
to the UN HUMAN RIGHTS COMMITTEE (CCPR)
for the 122. Session (12 Mar 2018 to 06 Apr 2018)
Forced psychiatric interventions as disability-based discrimination
Walter Keim, Survivor of Psychiatry
This submission provides information on the rights of persons with psychosocial disabilities in Norway, with a focus on principal areas of concern; forced psychiatric interventions as disability-based discrimination and a breach of the right to health.
We welcome this opportunity to address these human rights issues and hope the Committee will take up the questions presented with the Norwegian delegation. We will have representatives from WSO/ENUSP attending the examination. Please do not hesitate to contact us for any further information or questions.
Questions regarding this submission may be directed to Walter.Keim@gmail.com
Grimstad, 17. December 2016.
We Shall Overcome (WSO) is a Norwegian NGO/DPO1, run by and for users and survivors2 of psychiatry, established in 1968. WSO advocates for the human rights of users and survivors of psychiatry, the implementation of the UN Convention on the Rights of Persons with Disabilities (CRPD), and bringing forced psychiatric practices and other infringements in the mental health system to an end. The organisation is a member of the European Network of (ex-) Users and Survivors of Psychiatry (ENSUP) and World Network of Users and Survivors of Psychiatry (WNUSP), an international organisation of users and survivors of psychiatry.
Relation to other reports and conventions
The State Report was due 2. November 2016 but is delayd to 1.August 3017. Previous parallel reports of civil society to the Human Rights Committee (CCPR), Committee on Economic, Social and Cultural Rights (CESCR), Committee against Torture (CAT) and Universal Periodic Revieware (UPR) are unfortunately still actual and some will therefore be included here, i.e.:
Joint submission by We Shall Overcome (WSO), World Network of Users and Survivors of Psychiatry (WNUSP) and the International Disability Alliance (IDA) for the examination of Norway (review of Norway’s 6th Periodic ICCPR report), Human Rights Committee, 103rd Session (17 October – 4 November 2011).3
The Norwegian NGO/DPO We Shall Overcome (WSO) has prepared the Parallel Report to the 5th Periodic Report of Norway to give input to the UN Committee on Economic, Social and Cultural Rights in advance of the examination of Norway in November 2013.4
Norwegian organisation of users and survivors of psychiatry, We Shall Overcome (WSO), the World Network of Users and Survivors of Psychiatry (WNUSP), the European Network of users and survivors of psychiatry (ENUSP) and the International Disability Alliance (IDA) have also prepared Joint submission on Norway for the 49th Session of the Committee against Torture (29 October – 23 November 2012).5
Norway has ratified the CRPD Convention 2013 as 130. state. 2 declarations have been made. The declarations restrict legal capacity for people with disabilities, and to permit forced care and treatment of persons, among these measures carried out to treat mental disorders. A reservation/declaration on Article 12 no doubt runs counter to the object and purpose of the CRPD, not to mention CAT and other human rights instruments, and the government should be strongly dissuaded from this course of action. 2013 the Mental Disability Advocacy Center called on Norway to withdraw reservations6 and Norwegian Equality and Anti-discrimination Ombudsman 19. December 2013 concludes that Norway violates human rights.7
In addition the Human Rights Commissioner of the Council of Europe criticised Norway and demanded to reduce drastically coercion in psychiatry.8 The Prime minister was informed that “this situation is unacceptable for a country such as Norway, which has a global reputation promoting and protecting human rights.”9
So far the Human Rights Committee (CCPR), Committee on Economic, Social and Cultural Rights (CESCR), Committee against Torture (CAT) and Universal Periodic Review have criticised Norway because of coercion in psychiatry.10
However Norways response has not been constructive:
“Compared with other European countries, Norway ranks the highest when it comes to the use of compulsory” treatment according to Mental Health Act11. «The truth is that Norway has a long tradition of extensive use of compulsory admissions and has been a world leader in use of this kind of force in ‘psychiatry’.»12
The result of the dialogue between Norway and 4 FN Committes was that the Committee against Torture asked 2015 (LoIPR: CAT/C/NOR/QPR/8 Article 2, 12.) :
(a) “Whether the use of restraints and the enforced administration of intrusive and irreversible treatments such as neuroleptic drugs and electroconvulsive therapy has been abolished in law...
(b) Ensuring that every competent patient, whether voluntary or involuntary, is fully informed about the treatment to be prescribed and given the opportunity to refuse treatment or any other medical intervention,...”
FN komite mot tortur og annen umenneskelig, grusom og nedverdigende behandling anbefaler i CAT/C/NOR/CO/8
22. The Committee reiterates its recommendation (see CAT/C/NOR/CO/6-7, para. 14) that the State party:
that every competent patient, whether admitted voluntarily or
involuntarily, is fully informed about the treatment to be
prescribed, including shielding,
and given the opportunity to refuse shielding, treatment or any other medical
interventions, such as the administration of neuroleptic drugs and electroconvulsive treatment;
Introduction & information on submitting organisation………………………….. 2
Relation to other conventions……………………………………………………….. 3
Equal recognition before the law. Discrimination of persons
with psychosocial disabilities in medical settings………………………………….. 4
Forced psychiatric interventions as disability-based discrimination ……........ 4
Discriminatory domestic legislation…………………………………………... 6
Recommendation & Question…………………………………………………. 8
Freedom from torture and Liberty and security of the person: ...…...…………… 9
The scope of compulsory psychiatric interventions - national reporting……… 9
Complaint mechanisms – Norway’s reply to recommendation; paragraph 42... 10
Failure of national strategies to combat forced psychiatric interventions……… 10
Forced psychiatric drugging – a violation of the right to health……………….. 11
Recommendation & Question…………………………………………………... 16
Equal recognition before the law. Discrimination of persons with psychosocial disabilities in medical settings
Forced psychiatric interventions as disability-based discrimination
1. The State Report was due 2. November 2016. Persons with psychosocial disabilities are facing discrimination regarding their right to the enjoyment of the highest attainable standard of physical and mental health guaranteed under Article 12 of the CRPD Covenant. Violent medical practices like forced electroshock, forced drugging, restraint and solitary confinement continue to be practiced against our members, causing trauma that is unacknowledged as such since the interventions are done in the name of medical treatment. The right to control our own bodies and minds is an aspect of the right to respect for physical and mental integrity, as well as the right to health. Forced psychiatric interventions infringe upon these, and other, rights and constitute systemic disability-based discrimination. The discrimination is being upheld by legal rules, policies, practices and cultural attitudes. This is the case in Norway, as well as around the world.
2. Norway is obliged under CRPD and other binding human rights treaties not to discriminate based on disability and to ensure that the law prohibits such discrimination. To exercise the right to health without discrimination of any kind is an immediate obligation for the State party.
3. As set forth in the Committee’s General Comment No 1, the right to health contains both freedoms and entitlements. The freedoms include the right to control one’s health and body, and the right to be free from interference, such as the right to be free from torture, non-consensual medical treatment and experimentation13. The entitlements include the right to a system of health protection which provides equality of opportunity for people to enjoy the highest attainable level of health.
4. The right to health, like all human rights, imposes three types of obligations on States parties: the obligations to respect, protect and fulfil14. The long held view that the State’s obligation to respect, including to refrain from applying coercive medical interventions, could be set aside “on an exceptional basis for the treatment of mental illness”, must be seen as outdated, now superseded by the latest human rights standards set by the UN Convention on the Rights of Persons with Disabilities (CRPD). Norway ratified the CRPD June 3rd 2013.
5. Both the UN Special Rapporteur on Torture and the Office of the High Commissioner for Human Rights (OHCHR) have come to the conclusion that, unlike earlier non-binding standards (such as the “Mental Illness”-principles of 1991), the CRPD does not accept involuntary confinement of persons with disabilities in psychiatric or social care institutions or non-consensual psychiatric treatment as a lawful practice.15
6. CRPD Article 12 recognises that persons with disabilities enjoy the right to legal capacity on an equal basis with others in all aspects of life, such as the right to make decisions about mental health treatment. CRPD Article 25 d) set forth the right to health care based on free and informed consent, and must be seen in conjunction with Article 12. The State party’s obligation to protect the right to free and informed consent, and to ensure that persons with disabilities enjoy this right on an equal basis with others, is an immediate obligation, indispensable for the realisation of the right to health.
7. The CRPD Committee has repeatedly, in their nine issued Concluding Observations so far, urged States parties to ensure that all mental health services are provided based on the free and informed consent of the person concerned.16
8. In their Concluding Observations on China, the Committee advises the State Party to adopt measures to ensure that;
“all mental health care and services is based on the free and informed consent of the individual concerned, and that laws permitting involuntary treatment and confinement, including upon authorisation of third party decision-makers such as family members or guardians, are repealed.”17
9. In their recent Concluding Observations on Austria, the Committee urges the State Party to ensure that:
“no one is detained against their will in any kind of mental health facility”.18
10. The CRPD Committee has recommended the repeal of legislative provisions which allow for the deprivation of liberty on the basis of disability, including psychosocial or intellectual disability, and recommended to incorporate into the law the abolition of treatment without full and informed consent.19
11. Also the CRPD Committee has recognised the discriminatory nature of deprivation of liberty, forced treatment and use of restraint practiced against persons with disabilities in the medical setting;
““As has been stated by the Committee in several concluding observations, forced treatment by psychiatric and other health and medical professionals is a violation of the right to equal recognition before the law and an infringement of the rights to personal integrity (art. 17); freedom from torture (art. 15); and freedom from violence, exploitation and abuse (art. 16).””.20
12. UN Special Rapporteurs on Torture Manfred Nowak and Juan E. Méndez has recognized that mental health detention, as well as non-consensual treatment, meets the criteria for inhuman and degrading treatment or torture;21
“Both this mandate and United Nations treaty bodies have established that involuntary treatment and other psychiatric interventions in health-care facilities are forms of torture and ill-treatment.”22
13. Thus, forced psychiatric interventions and the laws that authorises such interventions must be seen as discriminatory and unlawful.
Discriminatory domestic legislation
14. Contrary to this, the Norwegian mental health legislation authorises administrative deprivation of liberty based on psychosocial disabilities (“serious mental disorder”) combined with the additional alternative requirements “need for care and treatment” or “danger to self or others”.23 According to Norwegian law, “Compulsory mental health care”, including psychiatric incarceration, can be carried out when:
“The patient is suffering from a serious mental disorder and application of compulsory mental health care is necessary to prevent the person concerned from either
a. having the prospects of his or her health being restored or significantly improved considerably reduced, or it is highly probable that the condition of the person concerned will significantly deteriorate in the very near future, or
b. constituting an obvious and serious risk to his or her own life or health or those of others on account of his or her mental disorder.”24
15. Regardless of due process guarantees and legal safeguards, deprivation of liberty based on such criteria constitutes disability-based discrimination. It has the effect of impairing the recognition and enjoyment of liberty on an equal basis with others and runs counter to the CRPD (art. 5 and 14).
16. The Norwegian Mental Health Act also authorises non-consensual psychiatric treatment,25 both inpatient and outpatient, including forced drugging (which is specifically contravened by CRPD art. 12, 15, 17 and 25d).
17. Norwegian legislation does not permit the administration of electroshock (ECT) without informed consent, yet such practice is nevertheless accepted by the authorities; it is being carried out and is purportedly justified by the "principle of necessity". There are no official statistics on the extent of forced ECT (nor ECT administered with informed consent).
18. As a result of these laws and practices, persons with psychosocial disabilities are deprived of the right to free and informed consent in healthcare on an equal basis with others. In conjunction with Article 12, the forced psychiatric interventions and the laws facilitating them, constitutes a breach of Article 2 of the CRPD Covenant.
19. In their policies and national strategy plans, the Norwegian Government focuses on the “correct use of psychiatric force” (National Strategy on Reduced and Correct Use of Coercion)26, as if such a standard exists. As described above, forced psychiatric interventions are discriminatory practises, amounting to ill-treatment, and there could therefore be no “correct use”. Instead Norway should focus on ensuring elimination of such unjustified coercive practises.
19a. Despite expressed intentions to reduce the use of force in psychiatry, the implemented or proposed legislative amendments are actually expanding recourse to coercive means.
In fact, an amendment of the Mental Health Act was passed and entered into force on 1 July 2012. This amendment expands recourse to coercive means in regional security units and establishes a new hospital-unit with especially high security level. With a short deadline for public response, this legislative amendment was rushed through with little public debate, apparently because of the situation that could occur if the perpetrator of the terror-attack of 22 July 2011 was to be deemed of unsound mind and sentenced to confinement under the Mental Health Act. The amendment means extended access to highly restrictive security measures in the Regional Security Units that includes examination of room and individual without founded suspicions, body cavity searches of patients, body search of visitors, communications restrictions / control of mail and visit limitation.
19b. The Health Directorate rapported in July 2015 that a reduction of coercive practices was not seen during the period 2010 to 2014 of National Strategy for reduced and correct use of force in mental health services. Therefore a law revision was suggested.27 In addition longtime medication should be examined.
19c. Upon the release of the state budget on 18. september 2015, the government provided information stating that there is no intention to move forward with the revision of the mental health legislation aiming at reduction of the use of force, the report delivered in June 2014. 28
19d. Compulsory Mental Health Care in Norway: A Study of the Interface between the Law and Psychiatry. Rigmor Randi Diseth cand.jur. (2013) gives the following information:
"We had a ( Supreme Court-)decision in 2011 about procedural rules and the Human Rights Convention. The Court rejected the case and concluded that it was the State which was the legal person in cases concerning the Human Rights Convention. "
"After Paper IV was written, a new case was brought before the Supreme Court in December 2011 (Norsk Retstidende 2011, Rt. 2004 s. 583, Premiss nr. 29 og Rt. 2011 s. 1666). The question was if a “helseforetak” (hospital owner) had broken the procedural rules in the Mental Health Care Act in connection with a decision about compulsory observation, and if this commitment constitutes a breach on the Human Rights Convention article 5 no. 1. The Court found that the procedural rules had not been complied with, and the case was then rejected by the Court because the “helseforetak” was not the right legal person. "29
The result is, that the psychiatric pasient does not enjoy the protection of the Human Rights Convention.
19e. In June 2016, after newspaper reports about false reports of hospitals to authorities, the Government presented a bill to the Storting on a number of amendments in the Mental Health Care Act (Prop. 147 L (2015-16)) which is based on a committe from 2011 (Paulsrud-utvalg) still allowing forced treatment disability-based discrimination. Norway retified CRPD later in 2013 as 130. state.
19f. The «National Strategy for reduced and correct use of force in mental health services» (2012-2015) failed to reduce forced treatment. Therefore the the Government appointed an official legislative committee, chaired by Professor Bjørn Henning Østenstad (Faculty of Law, University of Bergen) to conduct an overall review of the regulation of coercion in health and care services with deadline 1. September 2008.
The Committee urges the State party to incorporate into the law the abolition of violent and discriminatory practices against children and adults with disabilities in the medical setting, including deprivation of liberty, the use of restraint and the enforced administration of intrusive and irreversible interventions such as neuroleptic drugs and electroshock.
The Committee urges the State party to undertake legislative reform and repeal legislation that authorises deprivation of liberty linked in legislation to “mental disorder”, psychosocial or intellectual disability, or in other ways being based on disability. Notably, the Mental Health Act authorises deprivation of liberty and compulsory treatment based on psychosocial disabilities in contravention of the CRPD, and ICESCR art. 2 and 12, and needs to be abolished.
The Committee urges the State party to ensure effective legal remedies for people with disabilities to obtain release from mental health facilities where they may be held against their will.
What measures are being taken to ensure that persons with disabilities, in the medical setting, are not subjected to discriminatory and coercive practices, including the forced and non-consensual administration of neuroleptic drugs and electroshock, recognised as forms of torture or ill-treatment?
Liberty and security of the person and Freedom from torture:
20. Persons with psychosocial disabilities, users and survivors of psychiatry, are, in Norway, as in other countries around the world, experiencing violent and discriminatory practises in the medical setting, including enforced administration of intrusive and irreversible interventions such as neuroleptic drugs and electroshock. The right to control one’s health and body, and the right to be free from non-consensual medical treatment, is far from realised for the members of our organisation and for other members of the psychosocial disability community. Thousands are detained in mental health facilities each year. Exactly how many remains unknown.
The scope of compulsory psychiatric interventions - national reporting
21. As recognized by Norway during earlier reviews, the quality of national reporting on compulsory interventions is not satisfactory.30 Complete and reliable data and statistics on involuntary admission, non-consensual treatment and use of coercive means do not exist. Statistics indicate however that Norway has a high incidence of involuntary admissions (estimated to about 215 per 100 000 adult inhabitants) compared to other countries against which it is reasonable to compare. There are also major and unexplainable regional variations in the use of involuntary admissions in Norway.31
22. A 2012 report from the Norwegian Directorate of Health (Helsedirektoratet)32 estimates, in the absence of adequate data, that there were about 8300 compulsory admissions among adults in Norway in 2011, slightly higher than the estimated number for 2010.33
23. However, underreporting of involuntary confinements have been revealed, and earlier reports have shown that, in addition to incidents not being reported, possibly as many as one fourth of the known incidents of deprivation of liberty could be registered as voluntary admissions and/or not registered as compulsory admissions.34
24. The 2012-report further concludes that the reporting of forced treatment, decisions regarding seclusion (“shielding”) and use of coercive means is presumed to be incomplete and so the extent of such coercive interventions in Norway could not be calculated. Regarding decisions on forced treatment there is no reliable source for the national level.
Complaint mechanisms – Norway’s reply
25. In the response to suggestions and recommendations raised in paragraph 42 of the concluding observations of the UN Committee on Economic, Social and Cultural Rights on Norway’s 4th periodic report (2005),35 Norway highlight how a decision to detain a person for compulsory psychiatric treatment (misleadingly referred to as “care”) may be appealed to the supervisory commission. However, what is not mentioned, is that 93 % of the appeals are withdrawn or rejected36, and that once an appeal has been rejected no similar appeal may be lodged until at least six months have elapsed (these numbers are from 2011, and 54 % of all decisions about compulsory “mental health care” was appealed to the supervisory commission this year).
26. Decisions regarding forced treatment may be appealed to the county governor, which operates with the same level of rejections. Many users and survivors of psychiatry deem the possibility of a successful appeal illusory and have the experience that their credibility is in general denigrated, and therefore refrain from lodging appeals. There is no appeal against the decision of the county governor about forced drugging. When a person in detention makes a formal complaint, he/she still has to remain in the custody of the medical staff/hospital that they have forwarded the complaint about. WSO receive testimonies from people that do not dare to lodge formal complaints in fear of retribution and punishment from the personnel responsible.
Failure of national strategies to combat forced psychiatric interventions
27. Ensuring elimination of the use of unjustified coercive force against persons with disabilities begins with correctly identifying applicable norms of international law as described above. Norway has not taken this first crucial step, and we regret that Norway is clinging to outdated, discriminatory legislation and practices, instead of taking necessary action to develop laws and policies to replace regimes of forced and non-consensual psychiatric interventions with services that fully respect the autonomy, will and equal rights of persons with psychosocial disabilities.
28. Despite numerous attempts for more than a decade, the Norwegian authorities have not succeeded to reduce the use of force in psychiatry. The action taken to reduce force has not been proven effective, and does not address the severe consequences and trauma to which the individual subjected to coercion experiences, nor does it address the discriminatory nature of such practises and the breach of the non-derogable right to be free from ill-treatment.
29. The New National Strategy on Reduced and Correct Use of Force takes steps to register and collect data of incidents, but fails to put in place effective action towards the elimination of the use of force. And, as mentioned earlier, the view that there could be a “correct use” of forced psychiatric interventions stands in the way for such necessary actions to be taken, and shows a failure to implement the standards set forth in the CRPD.
Forced psychiatric drugging – a violation of the right to health
30. In the following we will focus mostly on forced and non-consensual psychiatric drugging, as this is a matter of particular concern, and a grave violation of the right to health, including the right to not be subjected to interventions that are harmful to your health, to forced interventions, and to degrading or inhuman treatment or torture.
31. Forced medication is administered in hospitals and on an out-patient basis. As described above, there are no reliable statistics on either. The lack of data on formalized decisions regarding forced medication is only part of the problem to record the scope of coerced medication. Research and personal testimonies has shown that the line between forced medication and voluntary medication is blurred. People report the threat of force, pressure, fear of additional punishment (seclusion and/or physical restraints) and lack of known options as reasons for “complying” with taking medication. Such occurrences would not be registered as forced or non-consensual drugging even if the authorities were able to produce good statistics on formal decisions.
32. One of WSO’s members explained it like this;
”I found out that when the decision concerning outpatient commitment was up for evaluation, there existed no decision subjecting me to forced medication. For two years I attended the District Psychiatric Centre to be given injections, and I was threatened with the police if I did not show up, and NOW they tell me that this was not coercion.”
33. In a master's thesis from 2011 that describes nursing intervention towards voluntarily admitted patients at a psychiatric acute ward it is stated:
“The majority of respondents said that forced medication is the most commonly used coercive measure. The patient has no choice regarding medication even though he is voluntary admitted. A nurse explains that patients are forcibly medicated if he does not follow the nurse's guidelines and recommendations in relation to medication. He says nurses encourage patients to take medication but gives them really no choice even though it may sound like they do.” 37
34. When the use of force is not legally recognized, but the individual experiences to have no choice and de facto does not, the infringement on human rights is just as grave as if the decisions had been formalized. Furthermore, no free consent could be given under detention, and so all administration of drugs occurring when a person is incarcerated should be viewed and registered as non-consensual drugging.
35. There is no indication that the overall occurrence of forced medication in Norway is decreasing. Even though some local reports suggest a decrease in formal decisions on involuntary treatment because of outreach-activity, it does not necessarily mean that the use of coercion in practice has declined. The ACT (Assertive Community Treatment) teams follow the patient closely in their own home, where compliance to medication is one of the main objectives, thus leaving a high risk of informal coercion.
36. WSO is informed of numerous cases regarding forced medication, causing severe suffering for the persons affected. One of these persons is H.L, who is currently subject to out-patient commitment and forced medication.
37. She has been subjected to psychiatric interventions over a period of 8 years, and has invasive side effects caused by the medication, including excessive weight gain from 55 kg to 97 kg. H.L shared her testimony with WSO of how she experienced psychiatric coercion:
“The consequences of the use of coercion are large and overwhelming. You are deprived of all rights pertaining to your life. You lose your freedom, which is the bedrock of everything with the capacity to grow. You lose the opportunity to stay in your home, which is the basis from which you can work and which can be your sanctuary for safety, rest and peace. You can only eat and get fresh air when others allow you to. You cannot sleep without others coming into your room up to three times every night. You feel invaded in all possible ways and develop an intense need to be left alone. You cannot cry even when it is quiet, because then they come to you with their medicine. Subsequently they send you home with more afflictions than you suffered from initially. (..) The medication works in such a way that they add to your disability. They cut short your nerve impulses, causing motor and sensory disorders like those of an old man, making you extremely tired/dulled, or robbing you of the ability to speak.”
37a. Anne Grethe Teien gave a testimoy: Sundag 13. March 2016. - We are not violating the human rights. - Yes, you are! 38
The medication took away my vitality, my sensitivity. My emotions were numbed. My personality faded away. Then a severe depression set in - just a complete state of hopelessness - and for the first time in my life I became suicidal. Again and again I said to the staff, psychologists, doctors: - I can not be on meds. I tried to have them understand that the neuroleptics were destroying me and my life.
38. In the case of H.L, all the national legal remedies have been exhausted. On 4 July 2012, H.L brought her case to Hålogaland Court of Appeal, the court ruled in favour of the state39. The Supreme Court rejected the appeal on 20 September 2012 on the grounds that the case would not have principal implications beyond this case.40
39. Norun.P.H shared her experiences with coercion on the national news in June 2012.41 She was committed to a psychiatric hospital when she was 17 years, and medicated by force. She had severe side-effects from medication, including dullness of mind and extreme weight gain, but the hospital continued to increase and add to her medication instead of looking at other treatment options. She was submitted to coercion for two years before she was able to escape. Today Norun is an active student at the university who is not on medication and not experiencing mental health problems. However, she still suffers from the trauma caused by the forced treatment she was subjected to.
40. HL’s and Norun’s experiences are only two of a huge amount of similar and equally grave stories, used here to illustrate the abuse persons with psychosocial disabilities face on a daily basis in the mental health system. Numerous other stories about suffering, pain, fear, trauma, and the serious infliction of injuries have been told by persons who have experienced forced psychiatric interventions. In a newly published study by sociologist Ragnfrid Kogstad, 335 Norwegian user/survivor narratives were analysed. The study concludes that;
“mental health clients experience infringements that cannot be explained without reference to their status as clients in a system which, based on judgments from medical experts, has a legitimate right to ignore clients' voices as well as their fundamental human rights. (..)”.42
41. Norwegian authorities have, during recent years, been made aware of a number of human rights issues of concern in the mental health system. One of the persons who have been trying to bring attention to ill-treatment in psychiatry is human rights lawyer, Gro Hillestad Thune, who in 2008 published a book on 70 stories of infringements in psychiatry.43 Users and survivors of psychiatry, their organisations, relatives, and human rights advocates have been speaking out about human rights violations in psychiatry in the media, in letters to the authorities, in conferences, in books etc. Many are telling stories of not being heard, not being taken seriously when they complain to the authorities, and allege human rights violations, including ill-treatment, in the mental health system.
“What is tragic, is that something that begins as care and should ensure the patient the right to treatment and follow-up, allows for the use of police transportation, forced drugging, restraints and solitary cells (…). Conducts that in other houses is called torture, infringement and punishment, is given other names when it is carried out by medical doctors (..). Patients in psychiatry have to relate to a health system where the same hand that comforts you and says it wants to help, is also the one that put you into restraints. To deal with such a situation is inhuman and leads to chaos in a human mind. When the trauma is a fact, you have nowhere to turn, other than back to the place where they inflicted the injury on you, but refuse to give it legitimacy.”44
42. One of the conclusions from a recent Norwegian study45, that compiled 100 scientific articles on the use of coercion in psychiatry, was that patients and health-personnel view coercive measures very differently. Researchers found consistently that staff often underestimate how stressful and demeaning it can be to be subjected to coercion. Harmful effects that are caused by infringements were also underestimated by clinicians.
43. Psychotropic drugs, particularly neuroleptics, can cause serious long-term effects, such as drastic weight gains, metabolic syndromes, diabetes, heart disease, neurological damage, brain shrinkage, etc.46 Common effects reported are that thoughts, feelings, experiences, and the ability to initiate change is affected, neuroleptics act as a “universal brake” on mental function. Many patients describesuch medication as a “chemical straitjacket”. The harmful effects include an increase in sudden death and total mortality rate, and shortened lifespan.47
44. As has been recognized by the UN Special Rapporteur on Torture:
“the administration in detention and psychiatric institutions of drugs, including neuroleptics that cause trembling, shivering and contractions and make the subject apathetic and dull his or her intelligence, has been recognized as a form of torture.”48
45. Two Norwegian cases concerning forced psychiatric interventions have so far been reported to the UN Special Rapporteur on Torture.49
46. Effective humane alternatives to forced treatment exist and have yielded positive results confirmed by personal testimony and evaluative studies.50 The state has an obligation to make these alternatives readily available and to eliminate practices which violate the rights of individuals and may constitute torture or other ill-treatment.
47. The CRPD Committee has strongly recommended the adoption of:
“measures to ensure that all health care and services provided to persons with disabilities, including all mental health care and services, is based on the free and informed consent of the individual concerned, and that laws permitting involuntary treatment and confinement, including upon the authorisation of third party decision-makers such as family members or guardians, are repealed. It recommends the state party to develop a wide range of community-based services and supports that respond to needs expressed by persons with disabilities, and respect the person’s autonomy, choices, dignity and privacy, including peer support and other alternatives to the medical model of mental health.”51
47a. «Germany without Coercive Treatment in Psychiatry—A 15 Month Real World Experience»52 shows that considerable improvements are possible. The rate of inpasients under coersive medication fall under 0.5 %. In Norway approx. 10% of inpasients where under coercive medication (SINTEF A26086)53
47b. The survivers of psychiatry “Bundesverband Psychiatrie-BPE-Germany” asked the UN CRPD commitee 19. February 2015: «Please condemn Germany as a human rights criminal 54
Norway is a much bigger (ca. 20 times) «human rights criminal» compared to Germany. UN CRPD Committee gave concluding observations about the Federal Republic of Germany. Quotes from the States Report of the UN CRPD Committee on 17/04/2015: 55
«30. The Committee recommends that the State party take all the immediate necessary legislative, administrative and judicial measures to:
(a) Amend legislation to prohibit involuntary placement and promote alternative measures that are in keeping with articles 14, 19 and 22 of the Convention;»
The Committee is deeply concerned that the State party does not
recognize the use
of physical and chemical restraints, solitary confinement and other harmful practices as acts of torture.”
47c. The Norwegian High Court considers the governments reservations and views 16. June 2016 the information about CRPD «fragmentaric, ambigious and contraditory» and disregards the convention in its verdict HR-2016-1286-A: (I HR-2016-1286-A, «Helserett. Tvungent psykisk helsevern. Forverringsalternativet.» uttaler Høyesterett):
(27) Jeg nevner
at denne konvensjonen (FNs konvensjon om rettighetene til personer
med nedsatt funksjonsevne) er fra 13. desember 2006. Den trådte i
kraft for Norge 3. juli 2013. Etterlevelsen overvåkes av
CRPD-komiteen, i første rekke med utgangspunkt i statsrapporter.
Etter artikkel 1 andre ledd omfatter konvensjonen «those who have
long-term physical, mental, intellectual or sensory impairments».
Formålet med konvensjonen er «to promote, protect and ensure the
full an equal enjoyment of all human rights and fundamental freedoms
to all persons with disabilities, and to promote respect for their
inherent dignity», jf. artikkel 1 første ledd.
(29) Det materialet som er fremlagt for Høyesterett med hensyn til hvilke føringer og begrensninger konvensjonen om personer med nedsatt funksjonsevne gir for tvangsinnleggelse og tvangsbehandling av psykisk syke, er fragmentarisk, flertydig og i noen grad også motstridende. Ikke minst er rekkevidden av den sentrale bestemmelsen i artikkel 14 nr. 1 b usikker, når den sier at «the existence of a disability shall in no case justify deprivation of liberty», jf. nærmere Syse, Psykisk helsevernloven med kommentarer (2016) side 460-469.
The Committee urges the State party to ensure that allegations of torture or other ill-treatment provoke a prompt and impartial investigation by competent authorities, and ensure that ill-treatment and other abuses in the mental health system are remedied and prevented, and that such abuses do not take place undocumented and with impunity, under the pretext of “health care”.
The Committee urges the State party to recognize the immediate obligation to stop ill-treatment from being carried out through forced psychiatric interventions.
The Committee urges the State party to ensure that all medical services are provided to persons with disabilities on the basis of the free and informed consent of the individual concerned.
The Committee recommends the State party to develop a wide range of community-based services and supports that respond to needs expressed by persons with disabilities, and respect the person’s autonomy, choices, dignity and privacy, including peer support and other alternatives to the medical model of mental health, and to ensure that humane and non-medication based treatment alternatives are made readily available.
What is being done to collect, document and learn from the stories of abuse and infringement in the mental health system?
What measures are being taken to ensure that all medical services are provided to persons with disabilities on the basis of the free and informed consent of the individual concerned?
What specific measures are being taken when the State party receives allegations of ill-treatment or other human rights violations; to ensure proper investigation, and to ensure that ill-treatment in the mental health system is remedied and do not take place with impunity?
What measures are being taken to ensure victims of ill-treatment in the mental health setting redress and compensation, and to implement guarantees of non-repetition?
3DPO - Disabled People’s Organisations; are representative organizations or groups of persons with disabilities, where persons with disabilities constitute a majority of the overall staff and board, and are well-represented in all levels of the organization.
4“Users and survivors of psychiatry” are self-defined as people who have experienced mental health problems, or who have used or survived mental health services, including survivors of forced psychiatric interventions.
11Compulsory Mental Health Care in Norway: A Study of the Interface between the Law and Psychiatry. Rigmor Randi Diseth cand.jur. (2013) https://www.duo.uio.no/bitstream/handle/10852/35828/dravhandling-diseth.pdf
12Arnulf Kolstad, Haldis Hjort, Einar Kringlen. Letters to the Editor on Norwegian psychiatry. History of Psychiatry, SAGE Publications (UK and US), 2005, 16 (2), pp.247-256. <10.1177/0957154X05054860>. <hal-00570827> https://hal.archives-ouvertes.fr/hal-00570827
13ICESCR Committee’s GC 14 para 8.
14FICESCR Committee’s GC 14 para 33.
15Interim Report of the UN Special Rapporteur on Torture and other cruel, inhuman and degrading treatment or punishment, A/63/175, July 28, 2008, paragraph 44; Report of the UN Special Rapporteur on Torture, A/HRC/22/53, February 1, 2013; Statement by UN Special Rapporteur on Torture, Mr. Juan E Méndez, 22nd session of the Human Rights Council, 4 March 2013; Thematic Study by the Office of the United Nations High Commissioner for Human Rights on enhancing awareness and understanding of the Convention on the Rights of Persons with Disabilities, U.N. Doc. A/HRC/10/48, January 26, 2009, see especially paragraphs 48-49; Dignity and Justice for Detainees Week Information Note No. 4: Persons with Disabilities (OHCHR Information Note).
16See the CRPD Committee Concluding Observations on Tunisia, Spain, Peru, Hungary, China, Argentina, Paraguay, Austria and El Salvador.
17Concluding observations of the Committee on the Rights of Persons with Disabilities on the initial report of China (CRPD/C/CHN/CO/1), adopted September 2012, para 38.
18Concluding observations of the Committee on the Rights of Persons with Disabilities on the initial report of Austria (CRPD/C/AUT/CO/1), adopted September 2013, para 30.
19Concluding observations of the Committee on the Rights of Persons with Disabilities on the initial report of Tunisia (CRPD/C/TUN/1), adopted April 2011, paras 25 and 29.
20CRPD Committee General Comment 1 premiss 42.
21UN Special Rapporteur on Torture, interim report, Protecting Persons with Disabilities from Torture, A/63/175, July 2008, paras 38, 40, 41, 47, 61-65; UN Special Rapporteur report, Applying the torture and ill-treatment protection framework in health-care settings, A/HRC/22/53, February 1, 2013, paras 81 and 89.
22UN Special Rapporteur on Torture, A/HRC/22/53, 2013, para 64. See also ; UN Special Rapporteur on Torture, A/63/175, paras. 44, 47, 61, 63; Human Rights Committee, communication No. 110/1981, Viana Acosta v. Uruguay, paras. 2.7, 14, 15.
23Mental Health Act of 2 July 1999 No. 62, § 3-3 first section no. 3
24These are the central criteria for deprivation of liberty through the Norwegian Mental Health Act, see additional conditions in the unofficial translation of the Norwegian Mental Health Act; http://www.ub.uio.no/ujur/ulovdata/lov-19990702-062-eng.pdf
25Treatment can by Norwegian law, on specific terms, be carried out without free and informed consent when a person is under involuntary confinement, see chapter 4 of the Mental Health Act.
26National Strategy for reduced and correct use of force in mental health services, Ministry of Health and Care Services, 19 March.2010 (Nasjonal strategi for redusert og riktig bruk av tvang i psykiske helsetjenester. Oppdragsbrev av 19. mars 2010 fra Helse- og omsorgsdepartementet til de regionale helseforetak); se State report, section IV paragraph 417.
27Report National Strategy for reduced and correct use of force in mental health services, page 22: http://wkeim.bplaced.net/files/12-9562-61_Vedlegg_HOD-rapportering-juli-2015_12880570_8_1-1.pdf
29Compulsory Mental Health Care in Norway: A Study of the Interface between the Law and Psychiatry. Rigmor Randi Diseth cand.jur. (2013): https://www.duo.uio.no/bitstream/handle/10852/35828/dravhandling-diseth.pdf
30See i.e. Norway’s replay to List of Issues, issue No 4, under the review of Norway’s 6th Periodic ICCPR report, Human Rights Committee, 103rd Session, 17 October – 4 November 2011.
31SINTEF* Health. Husum, T., Pedersen, P.B.Ø. and Hatling, T. Analysis of compulsion in the mental health system. Report, 2005. (* SINTEF is the largest independent research organisation in Scandinavia).
32The Directorate of Health is an executive agency and competent authority subordinate to the Norwegian Ministry of Health and Care Services.
33Helsedirektoratet, 2012. Bruk av tvang i psykisk helsevern for voksne 2011. IS-2035. http://www.helsedirektoratet.no/publikasjoner/bruk-av-tvang-i-psykisk-helsevern-for-voksne-2011/Documents/IS-2035.pdf
34SINTEF Health. Bjørngaard, J.H. and Hatling, T. Involuntary placement in the mental health system in the period 2001-2003. Report STF78 A055001, 2005.
35State report, section III, paragraph 82-85.
36Helsedirektoratet, 2012. Bruk av tvang i psykisk helsevern for voksne 2011. IS-2035.
37Bäckström,H. The ambiguity of care given during the use of seclusion. 2011
39Hålogaland Court of Appeal, 04.07.2012.
40Supreme Court Appeals Committee HR-2012-01804-U.
41NRK 27.06.2012 «Coercion in psychiatry» http://tv.nrk.no/serie/dagsrevyen/nnfa19062712/27-06-2012#t=3m53s , additional information given in a presentation 20.8.2012.
42Kogstad,R. Stories from other positions. With user experience from the mental health field and a valid voice in politics and formation of knowledge. 2011.
43Thune, G.H. Infringements – searchlight on psychiatry, 2008. Abstrakt forlag, Oslo.
44Extract of personal testimony about experienced of forced psychiatry, published in the magazine Balanse, nr. 3/2001.
45Norvoll, R and Husum, T,L. Like night and day? About differences in understanding between dissatisfied users and staff on the use of coercion. 2011.
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