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Selected topics from 2017
Criticism on human rights grounds and the health
authorities’ measures
ECT administered on the basis of the principle of
necessity provision in the General Civil Penal Code
has incurred criticism from international human rights
bodies. In its Concluding Observations to Norway in
2013, the UN Committee on Economic, Social and
Cultural Rights advised Norway to stop administering
ECT without consent.5 Following a country visit to
Norway in 2015, the Council of Europe Commissioner
for Human Rights questioned whether administering
ECT on the basis of the legal principle of necessity
was in keeping with human rights standards.6 The
Commissioner also highlighted the importance of
obtaining an accurate overview of the scope of ECT
therapy, and making it publicly available.
In a letter to the Ministry of Health and Care Services
of June 2016, the Directorate of Health questioned
whether the principle of necessity is a sufficient
legal basis, pointing out that repeated treatments
are required for ECT to be effective.7 The directorate
recommended that the use of ECT on grounds of
necessity be considered further by the committee
appointed by the government to conduct an overview
of the regulation of coercion in Norwegian legislation
(Tvangslovutvalget). The committee will submit its
recommendations in September 2018.8
The Norwegian Directorate of Health published
national guidelines on the use of ECT in June 2017. It
was emphasised that it is only relevant to consider administering ECT on grounds of necessity in situations
where a patient with a serious mental disorder is in an
acute situation, and there is an immediate and serious
risk to the patient’s life, or a serious risk of harm to their
health if they do not receive adequate health care.9
According to the directorate, ECT must be seen as the
only satisfactory treatment option available to avert
acute risk, and no other less invasive treatments are
considered to be options, and the intervention must be
in accordance with proportionality requirements. The
directorate has also set out documentation requirements for each case in which ECT is administered
without consent. Patients who believe that ECT was
administered unlawfully on grounds of necessity, can
submit a complaint to the County Governor pursuant
to the Patient and User Rights Act Section 7-2.
In the Ombudsman’s opinion, the current application of
the principle of necessity as an independent legal basis
for intervention/competence base for administering
ECT without the consent of the patient is problematic
in relation to the Norwegian Constitution’s requirement
that infringement of the authorities against the individual must be founded on the law.10 The legal authority
requirement is stricter for very invasive measures.11
5 UN Committee on Economic, Social and Cultural Rights, Concluding Observations – Norway, 13 December 2013, E/C.12/NOR/CO/5.
6 Report by Nils Muiznieks, Commissioner for Human Rights of the Council of Europe, following his visit to Norway, 19 to 23 January
2015, CommDH (2015) 9.
7 The Directorate of Health, Concerning use of ECT in grounds of necessity, letter of 4 July 2017 to the Ministry of Health and Care
Services.
8 On 17 June 2016, the Government appointed a legislative committee to conduct an overall review of the regulation of coercion in
the health and care services sector. The committee is chaired by professor Bjørn Henning Østenstad.
9 The Directorate of Health (June 2017): National guidelines for the use of electroconvulsive therapy (ECT), page 26–28.
10 Article 113 of the Norwegian Constitution.
11 See, inter alia, Norwegian Supreme Court Reports Rt. 1995 p. 530 and Rt. 2001 p. 382.
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