and harvesting the landscape of compulsory mental healthcare
3.1 The frame of compulsory mental healthcare in Norway
Let us now take a brief look at the framework of compulsory mental healthcare in Norway. This includes the jurisdictional outline for executing compulsory treatment, and the current trends within the political landscape. In addition, I will shortly describe Tvangsforsk15, a research network that is a result of a specific political action plan for reducing coercion in Norwegian mental healthcare.
3.1.1 The legislation of compulsory treatment in Norwegian mental healthcare
The use of coercion within Norwegian mental healthcare is regulated by the ‘Act on provision and implementation of mental healthcare’ (Law Library, 1999a; Psykisk helse-vernloven, 1999; Norwegian Directorate of Health, 2016a), hereby referred to as the Mental Healthcare Act. According to the legal text, the purpose of the Mental Healthcare Act is to maintain a satisfactory application and implementation of mental healthcare services (§1-1). Also, the Act aims to ‘ensure that the measures described in the Act are grounded on the needs of the patient and respect for human dignity’ (§1-1) (Law Library, 1999a; Psykisk helsevernloven, 1999). The latter segment strongly emphasizes that mental healthcare is meant to serve the needs of each person.
Below I will briefly describe extracts from the Mental Healthcare Act, with an emphasis on the articles that concern compulsory mental healthcare, namely §3) Application and termination of compulsory mental healthcare, §4) Implementation of mental healthcare, and §5) Court order for transfer to compulsory mental healthcare.
15 The name Tvangsforsk is short for tvangsforskning, and could be translated directly as ‘coercion research’.
§3 Application and termination of compulsory mental healthcare
Compulsory mental healthcare can only be applied after a physician has personally examined the concerned part, and has found that the legal conditions for compulsory mental healthcare are fulfilled (§ 3-1). If a medical examination is required and the person concerned refuses to be examined, compulsory observation may be used (§1-2; §3-1).
In order to be transferred to compulsory observation, the responsible mental health professional will decide whether certain conditions are met (§3-2) (Law Library, 1999a, pp. 4-5); if voluntary mental healthcare has been tried out (unless a voluntary approach is deemed to be pointless); and two physicians have examined the concerned part, one of them independent from the responsible institution; and the person is judged to lack competence to consent16; and it is highly probable that the person will meet the criteria for further compulsory mental healthcare; and the given institution is capable of offering a satisfactory treatment and care for the person; and the concerned person has been given the opportunity to state his or her opinion. In addition, an overall assessment needs to conclude that compulsory observation clearly appears to be the best solution for the concerned person, unless the person ‘constitutes an obvious and serious risk to the life and health of others’ (Law Library, 1999a, p. 5). Also, when making a total assessment of the given case, special attention must be given to: ‘how great a strain the compulsory intervention will entail for the person concerned’ (Law Library, 1999a, pp.
4-5). Within a short time17 the person under compulsory observation must be released from the legal status or transferred to further compulsory mental healthcare (§3-3).
The criteria for being referred to compulsory mental healthcare (§3-3) are similar to the conditions for being transferred to compulsory observation as mentioned above, except for one additional requirement: the person needs to be suffering from a serious mental disorder. And the disorder needs to potentially culminate in either of the two:
1) constituting an obvious and serious risk to his or her own life and health or those of others, or 2) the magnitude of the disorder makes the prospects of a significantly improved health to be judged as considerably reduced, or that ‘it is highly probable that the condition of the person concerned will significantly detoriate in the very near future […]’ (Law Library, 1999a, p. 5).
16 The criterion of the competence to consent was recently added in the revision of the Mental Healthcare Act that was applied the 1st of September 2017 (Lov om endringer i psykisk helsevernloven mv. (økt selvbe-stemmelse og rettssikkerhet), 2017). Hence, only a small amount of the cited research literature in this dissertation takes into consideration this revision (Norwegian Directorate of Health, 2017a).
17 According to §3-2 in the Mental Health Care Act, compulsory observation cannot exceed 10 days without the consent of the concerned part. However, if absolutely necessary, and by the consent of the head of the supervisory commission, the observation period may be prolonged for an additional 10 days (Law Library, 1999a, p. 5).
It is also possible to follow up compulsory mental healthcare as an outpatient (§3-5), and to attend appointments for examination and treatment while otherwise living at home or in other adapted institutions. The people that do not meet for their appointments, however, may be committed involuntarily, using force and police assistance if necessary (Law Library, 1999a, p. 6). Some of the research participants that were interviewed for this study belong in this category.
§4 Implementation of mental healthcare
In article four of the Mental Healthcare Act, we find regulations for the implementation of mental healthcare. The act stresses that: ‘Restrictions and coercion shall be limited to what is absolutely necessary’, and the viewpoint of the involved person ought to be taken into account as far as possible (§4-2) (Law Library, 1999a, p. 9). And coercive measures may only be used in the cases wherein the favourable effects clearly outweigh the disadvantages of such measures. When committed involuntarily to a hospital, the legislation is meant to safeguard the person concerned gets to make decisions for him or herself, as far as possible. The institution is supposed to make an effort so that the people may take part in shaping their daily life, have the opportunity to cultivate their private interests and hobbies, have access to the activities offered, and have the possi-bility to engage in daily outdoor activities.
The core of §4 is that people within compulsory mental healthcare may be treated, without their consent, according to professionally recognized psychiatric methods, including forced medication, and forced nutrition regarding the most severe cases of eating disorders (§4-4). Such compulsory treatment may only be given after a profound examination of a person, and may not be applied at the stage of compulsory examina-tion (§3-2).
When absolutely necessary, coercive means may be used in order to prevent harm or to avert significant damage to physical things such as buildings, furniture and clothing (§4-8) (Law Library, 1999a, p. 12). Coercive means that can be used are mechanical restraints meant to reduce the person’s freedom of movement, such as belts, short periods of detention/isolation without the presence of any staff, small doses of medicines with short-term effects for calming the person, and briefly holding the person with bare hands (Law Library, 1999a, p. 12). Coercive means are not necessarily bound to people treated compulsorily; they may also be applied for voluntarily admitted service users when regarded absolutely necessary (Norwegian Directorate of Health, 2016a). Coercive means cannot be applied to people below the age of 16 (Psykisk helsevernloven, 1999).
Seclusion18 is regulated by article §4-3, and may be used to separate the service user from fellow service users or staff, for therapeutic reasons, or for the matter of safety for other service users (Psykisk helsevernloven, 1999). This measure is not viewed as a coercive mean such as short periods of detention or mechanical restraints (§4-8).
Many people still describe experiences of coercion and powerlessness when exposed to seclusion (Norwegian Directorate of Health, 2016a). Decisions of seclusion can be made for two weeks at a time (Psykisk helsevernloven, 1999).
According to the Norwegian health Directorate, there has lately been a change in the use of coercive means. Since 2009, the reported use of mechanical restraints and forced medication has declined, whereas the reported use of detention and seclusion has increased (Norwegian Directorate of Health, 2016a).
§5 Court order for transfer to compulsory mental healthcare
According to chapter 8 in the General civil penal code (§62-65) a person may be trans-ferred to compulsory mental healthcare by a court of law, if the violation of the law occurred due to mental illness (Psykisk helsevernloven, 1999). If so, the case will be regulated by the Mental Healthcare Act, but with some exceptions (§5).
Generally, people within compulsory mental healthcare, or their next of kin, may normally request that the treatment or observation is terminated. If so, the health professional responsible needs to make a new decision on the matter (§3-7). When regulated by §5, however, such requests are only valid 6-12 months after the transfer to compulsory mental healthcare, depending on the degree of violation and risk of repeated violations.
Neither the responsible health professional may request an end of treatment within this time period. The prosecutors, however, may terminate the verdict at any time (the General civil penal code, §65). The verdict should normally to be terminated within three years, but for severe violations the court of law may decide to extend the treatment period (Psykisk helsevernloven, 1999).
As we can see, the legislation regarding both compulsory observation and further com-pulsory mental healthcare are rather strict ones. When looking at the legal text on its own, there should be little room for unnecessary use of compulsory hospitalisations and coercive treatment. As we will se later on in this chapter, however, there is a vast amount of examples from the literature in which compulsory alternatives should have been avoided. As an anticipating example we will for instance learn that, more than half of the service users within compulsory observation have their legal status changed
18 In the English translation of the Mental Healthcare Act that I use, the word segregation is used instead of seclusion (Law Library, 1999a, p. 9). I choose to make use of the word seclusion, as this is the term used in the research literature (e.g. Norvoll, Ruud & Hynnekleiv, 2015).
from involuntary to voluntary within 24 hours (Norwegian Directorate of Health, 2019b; Tørrissen, 2007) whereas the legal text for compulsory observation explicitly requests that it needs to be ‘highly probable that the patient satisfies the conditions for compulsory mental health care’ (Law Library, 1999a, p. 4). Hence, there seem to be a mismatch between the protective features of the legal text, and the applied practices of mental healthcare in reality.
When interviewing the respondents in this study I did not ask about diagnoses or legal status. I contacted music therapists that helped to recruit research participants that participated music therapy as part of compulsory mental healthcare. Still, I learned a lot about their situations through the interview conversations, and it turns out that the empirical material includes stories from compulsory treatment for both inpatients (§3-3) and outpatients (§3-5), and from compulsory treatment referred by a court of law (§5). Most of the participants seem to have received compulsory treatment, such as medication (§4-4), and there is a good chance that several of the participants are familiar with coercive means such as mechanical restraints or forced medication with short-term effects (§4-8).
3.1.2 Governmental policies on compulsory mental healthcare
There seem to exist a common understanding in society that compulsory treatment should be held at a minimum level, and the Norwegian Directorate of Health (2016a) states that it is both a political and a professional wish that mental healthcare is exe-cuted voluntarily as far as possible. A national strategic Escalation Plan for mental health19, in the period of 2012-2015, was quite explicit regarding the safeguarding of the individual person:
The mental healthcare services shall support the individual service user’s autonomy, dignity and mastery of his or her own life, of the individual service user (Norwegian Directorate of Health, 2016a, p. 4)20.
In this strategic plan, municipal health services in particular were enhanced, with the purpose of helping people in the communities where they live (Prime minister’s office, 2009).
19 In Norwegian: Opptrappingsplanen for psykisk helse.
20 My own translation. The Norwegian text is as follows: ‘De psykiske helsetjenestene skal understøtte den enkelte brukers autonomi, verdighet og mestring av eget liv, og være basert på frivillighet og respekt for den enkeltes ønsker og behov’ (Norwegian Directorate of Health, 2016a, p. 4).
In Norway, the national health system is divided and organized into four health-regions;
in 2014 one of these four regions launched an action plan with seven strategic points, in order to reduce coercion in mental healthcare (my translation):
1) As far as it is possible and justifiable, every patient shall be given the opportunity to choose between different treatment options, non-pharma-ceutical treatment.
2) Medication regarding normal life challenges should be avoided.
3) Psychotropic drugs shall only be prescribed when there are good indica-tions of effects, and shall be discontinued if there is no effect.
4) If the dosage exceeds the recommendations from the WHO, this needs to be reasoned.
5) Side effects shall be monitored systematically.
6) Doctors are obliged to keep themselves updated on the psychopharmaco-logies.
7) Usage of psychotropic drugs should be registered and compared to the practices at other hospitals. (Helmikstøl, 2014, p. 1018)
Every mental healthcare unit in the region were given instructions to follow this action plan (Helmikstøl, 2014).
In late 2015 all four of the health regions in Norway were requested to establish non-pharmaceutical treatment practices within the 1st of June 2016 (Ministry of Health and Care Services, 2015). In addition, service users should also be offered a supervised de-escalating of the medications. During 2017 some new wards have been established in the different health regions, where people are offered non-pharmaceutical treatments.
How these wards will develop, and what role they will have in the future in mental healthcare, is not yet certain.
Seemingly, there have been some attempts to reduce the use of compulsory mental health treatment, through top-down regulations and political action plans. The last attempt in this chain is the revision of the Mental Healthcare Act that was applied on the 1st of September 2017. Again, the purpose is to reduce the total use of compulsory treatment, and to safeguard the human rights and dignity of the persons within mental healthcare as far as possible. In June 2019, an appointed group of experts launched their proposal for even new legislations regarding limitations for using compulsory treatment (NOU 2019, p. 14).
Since the recent changes in the Mental Heathcare Act, it seems that even health profes-sionals struggle to understand the legal framework in Norway, and apparently there
are variations in how different professional groups interpret the legislations (Aasland, Husum, Førde & Pedersen, 2018). Interpretations of legal practices rely, among other things, on the interpretation of terms such as ‘severe mental illness’ and ‘competence to consent’. One court case will soon be taken to the highest level of the national court, in which the person’s competence to consent is one of the deciding variables for the outcome (Tvangsforsk, 2019).