Foto av Torill Vagstad

Straffesak mot NFU-leder

NFUs fylkesleder i Hedmark, Torill Vagstad, skal mandag den 15. august møte i retten, anklaget for brudd på straffelovens § 390 a. Saken er av stor betydning i lys av selvbestemmelse og reiser spørsmål om forskjellen på behandling og frihetsberøvelse.

Bakgrunn

For vår fylkesleder, startet saken da hun lot ei ung kvinne bo hos seg på ettersommeren 2015. Myndighetene godtok ikke at kvinnen selv kunne bestemme hvor hun skulle bo og om hun skulle tilbake til bofellesskapet eller ikke. Etter mye frem og tilbake, ble kvinnen hentet tilbake til bofellesskapet. NFUs fylkesleder ble ilagt besøksforbud, et besøksforbud som tingretten opphevet fordi det var utarbeidet et forslag til tvangsvedtak overfor kvinnen. Tvangsvedtaket ville gjøre besøksforbudet overflødig. NFUs fylkesleder ble «anmeldt for kidnapping av barn». I politiets behandling av saken, fikk NFUs fylkesleder påtaleunnlatelse for å ha brutt straffelovens overtredelse av straffelovens paragraf §390a:

«Den som ved skremmende eller plagsom opptreden eller annen hensynsløs atferd krenker en annens fred eller som medvirker hertil straffes med bøter eller fengsel inntil 2 år.»

 

Fra den 15. til og med den 18. august føres straffesaken for Sør-Østerdal Tingrett. Uavhengig av utfallet i denne saken, er det liten grunn til å tro at forholdene roer seg etter rettsbehandlingen. En kan regne med ankesaker. Det er også flere andre klagesaker og rettsbehandlinger på gang, blant annet knyttet til tvangsvedtaket overfor kvinnen med utviklingshemning.

 

 

Selvbestemmelse

En vesentlig årsak til konflikten, er spørsmålet om hvem som har rett til å bestemme over kvinnen med lett utviklingshemning. Fylkesmannen i Hedmark er av den oppfatningen at kvinnen ikke selv kan bestemme hvor hun skal bo. De hevder, med hjelp av fagfolk i habiliteringstjenesten at kvinnen ikke har samtykkekompetanse. I praksis er det verge (som er utnevnt av fylkesmannen) som foretar kvinnens valg.

 

Den som leser vergemålsutvalgets mandat, innstilling eller prater med utvalgsmedlemmene, vil oppdage at det nettopp var å forhindre «snikumyndiggjøring» som var siktemålet med den nye vergemålsloven (Se NOU 2004: 16 og Ot.prp. nr. 110 (2008-2009)). Det ble gitt en viss mulighet for å delvis umyndiggjøring gjennom det å frata den enkelte deres rettslige handleevne, men fratakelse av rettslig handleevne er en omfattende sak hvor domstolen er første ledd i behandlingen. Når en i Hedmark umyndiggjør personer med en legeerklæring og psykologuttalelse, så er en tilbake til situasjonen som den nye vergemålsloven skulle få en slutt på.

 

Fylkesmannens vergemålsavdeling handler også stikk i strid med FN-konvensjonen om rettighetene til mennesker med nedsatt funksjonsevne hvor artikkel 12 blant annet fastslår:

1. Partene bekrefter at mennesker med nedsatt funksjonsevne har rett til overalt å anerkjennes som en person i rettslig henseende.

2. Partene skal erkjenne at mennesker med nedsatt funksjonsevne har rettslig handleevne på lik linje med andre, på alle livets områder.

3. Partene skal treffe hensiktsmessige tiltak for å gi mennesker med nedsatt funksjonsevne tilgang til den støtte de kan trenge for å kunne utøve sin rettslige handleevne.

Behandling eller skadelig frihetsberøvelse

Kvinnen med lettere utviklingshemning er underlagt et tvangsvedtaket etter kapittel 9 i helse- og omsorgstjenesteloven. Vedtaket er iverksatt selv kvinnens mor har påklaget vedtaket. Helse- og omsorgstjenestelovens § 9-7 slår fast at «Dersom vedtaket er påklaget etter § 9-11 andre ledd, kan vedtaket ikke iverksettes før fylkesnemnda for barnevern og sosiale saker har godkjent vedtaket». Til tross for at Fylkesnemnda for barnevern- og sosialsaker sier at mor er nærmeste pårørende, så ignorerer fylkesmannen i Hedmark klagens betydning for iverksettelsen.

 

Tvangstiltaket medfører at den unge kvinnen følges tett av personell hele døgnet. Hun skal skjermes fra familien og alle andre som kan tenkes å være kritiske mot «behandlingsopplegget» som habiliteringstjenesten har anbefalt for kvinnen. Hun skal følges på alle aktiviteter utenfor bofellesskapet. Mobiltelefon- og internettbruk er underlagt restriksjoner og kan bare benyttes under overvåkning.

Få vil tro at tiltakene som habiliteringstjenesten ved sykehuset innlandet anbefaler har noe som helst helsebringende effekt. Lang tids frihetsberøvelse bidrar ikke til å bedre folks psyke.

 

Paradigmeskifte

Saken fra Elverum er ikke unik. Det finnes lignende saker i Hedmark og i andre fylker, men posisjonen til habiliteringstjenesten og fylkesmannen, er nok noe mer ekstrem i Hedmark enn de fleste andre steder.

Uavhengig av utfallet i straffesaken mot NFUs fylkesleder, kan vi forvente at saken i Elverum vil versere i rettsapparatet en stund. Lærde har alltid hatt problemer med å lære nytt grunnsyn. Paradigmeskiftene har en tendens til å realiseres gradvis, i takt med at nye fagfolk overtar for dem som har kjørt seg fast på forhistoriske spor. Før eller siden vil grunnleggende menneskerettigheter, selvbestemmelse og rettsikkerhet også få innpass overfor mennesker med utviklingshemning i Hedmark.

Tidligere omtaler angående saken:

 

 

Jens Petter Gitlesen

2 august 2016

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