Selected topics from 2019
The Ombudsman was critical of the fact that
inadequate research meant that it remained unclear
whether ECT is necessary to save lives, or whether
other measures could prove just as effective.
In more general terms, the Ombudsman also called
for the proposed draft legislation to clarify that any
person deprived of their liberty still has fundamental
rights. The Ombudsman also pointed out that the
law is construed in a complex manner, making it
difficult to understand both for the individual patient
or user and for medical and care personnel. There
is therefore a need to ensure that the legislation is
written in a more accessible language.
The Ombudsman expressed concern over the
Committee’s proposal that measures are only
to be considered coercive if the patient shows
resistance. The background for this concern
is that many patients do not show resistance due
to trauma, or because an unequal balance of power
makes resistance seem futile. The Ombudsman
was furthermore critical of the Committee’s
proposal to make a lack of decision-making
competence a key requirement for the use of
coercion. This is problematic for reasons such as
it being unclear how such assessments should be
done and which criteria it should be based on.
The Committee also proposed rules on the
use of force in emergency situations, including
legally establishing health law rules for grounds of
necessity and self-defence, and strengthening the
rules on particularly intrusive measures to prevent
injury in emergency situations. The Committee’s
proposal to phase out mechanical restraints within
three years will, in the Ombudsman’s view, help to
reduce the risk of inhuman or degrading treatment.
Even so, the Ombudsman recommended that
immediate measures be considered to ensure
that the use of mechanical constraints on children
ceased as quickly as possible.
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The Ombudsman also called for special legal
safeguards to prevent long-term use of mechanical
restraints. We also pointed out that it was doubtful
whether the Committee's proposal to allow
segregation to prevent injury (isolation) in order to
prevent damage to property is in accordance with
human rights standards. The Ombudsman was
also critical of the Committee’s proposal to limit
the list of particularly intrusive measures to include
only the act of being held to the ground by force,
and not other intrusive forms of manual coercion.
With respect to segregation, we noted that several
of the Committee’s proposals reflected findings
from the Ombudsman’s visits. The Ombudsman
noted that more stringent rules applied to the
option of using segregation as a treatment measure,
but that the proposal to lower the threshold
for use of segregation out of consideration
to others constituted a risk of more widespread
use. Furthermore, the Ombudsman called for
clearer guidelines on the practice of segregation,
including setting limits for the use of force or for
maintaining segregation. The Ombudsman also
called for assessments of special legal safeguards
to prevent prolonged segregation, including limiting
the allowed duration of segregation decisions.
The Ombudsman also made several other
comments on topics such as, the proposal
to introduce a duty to prevent the use of coercion,
the right to limit visits and telephone use, use of
house rules and procedural rules.
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