NORWEGIAN PARLIAMENTARY OMBUDSMAN
National Preventive Mechanism
ANNUAL REPORT 2019
50
We found that the hospitals had very different
practices for using ECT based on the principle
of necessity. We also found some examples
of use that were clearly not in line with the principle
of necessity.
A balcony for patients in a psychiatric hospital ward.
Following the amendments to the law, DIPS
– the largest supplier of electronic patient records
in the specialist health service – introduced new
templates for administrative decisions for e.g.
treatment without the consent of the patient and
segregation. The specifications in the regulations
and changes in the templates are in line with the
observations made by the Ombudsman concerning
the conditions at several hospitals and are
important for the patients’ legal safeguards.
More rigorous oversight of electroconvulsive
therapy (ECT) used on grounds of necessity
During all visits to hospitals in 2017 and 2018,
we examined the use of electroconvulsive therapy
(ECT) on the basis of necessity. As ECT therapy is
considered to be a serious intervention, it is illegal
to administer it without the patient’s informed
consent.5 In some hospitals, ECT is nonetheless
sometimes administered without the patient's
consent, with reference to the provision on the
principle of necessity of the Penal Code. This
entails that there must be a danger to the life
and health of the patient that cannot be averted
in 'any other reasonable manner’.6
The Norwegian Directorate of Health subsequently
implemented several measures to strengthen legal
safeguards and supervision of the use of ECT
based on the principle of necessity. There is a high
threshold for situations that could warrant the use
of ECT based on the principle of necessity, which
was specified in the new guidelines published
in 2017.7 In addition, in 2018 the oversight
commissions (called Control Commissions) were
tasked with supervising the institutions’ decisions
on initiating ECT on grounds of necessity.8
Although the principle of necessity would still be
very problematic as a basis for such an intrusive
treatment against the patient’s will, these measures have contributed to improving
the possibilities of oversight.
The difference between means of restraint
and segregation
It has been necessary to point out in several of
the visit reports that segregation9 is not a restraint
measure, and that the threshold and conditions
for using restraint measures and segregation are
different. During our visits, we have seen manual
restraints being used on several occasions
– without a separate administrative decision being
made – as a means of initiating and maintaining
the segregation of a patient. For instance, several
hospitals have employed a practice where patients
are taken by force or carried to the segregation unit
or their room, as part of a segregation decision.
5
The Patient and User Rights Act Section 4-1 and the Mental Health Care Act Section 4-4 second paragraph.
6
The General Civil Penal Code Section 7. See also the ministry's preparatory works to the Mental Health Act regarding use of ECT
warranted by the principle of necessity, Proposition No 11 (1998–1999) to the Odelsting page 108–109.
7
The Directorate of Health (June 2017): National guidelines for the use of electroconvulsive therapy (ECT), page 26–28.
8
The Directorate of Health’s letter to the supervisory commissions in mental healthcare, ‘Behov for styrket kontroll med bruk av
elektrokonvulsiv behandling (ECT) uten samtykke’ (The need to improve control measures regarding the use of electro-convulsive
treatment (ECT) without consent), 17 April 2018. See also the Directorate of Health’s comments to the Mental Health Care Act S.
4-4 second paragraph, where our findings and assessments are highlighted.
9
Segregration in this context describes a particular form of open area seclusion used in Norway, where patients are segregated
from other patients but have healthcare personnel present in the area. The measure is referred to as 'shielding' in Norwegian
legislation and may be imposed for up to 14 days at a time.
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