Internationella komparativa studier av lagar om tvångsvård vid missbruk -omfattning, trender och mänskliga rättigheter

Detta är en avhandling från Östersund : Institutionen för social arbete, Mittuniversitetet

Sammanfattning: The Universal Declaration of Human Rights and Fundamental Freedoms and the International Covenant on Economic, Social and Cultural Rights state that everyone has the right to good health. According to the conventions, the states have obligations to prevent and combat disease, and if necessary, ensure that the conditions for treatment of the disease are appropriate (UDHR 1948, UNCESCR 1966). The broad wording in the conventions on the right to good health includes the right to care of substance use disorders. In the 1960ies the World Health Organization recommended, that people with such disorders should be seen as sick and that the legislation governing such care should be in accordance with special administrative legislations and not criminal legislation. The recommendation indicates WHO:s clear position that persons with substance use disorders primarily should be treated as persons suffering from disease and in need of care, and not primarily as disruptive individuals or criminals who should be disciplined or punished. This applies also to situations when treatment and care cannot be provided on a voluntary basis, but compulsorily. In Swedish context, the most commonly mentioned law in these cases is the social special legislation Law (1988: 870) on care of misusers, special provisions (LVM). Ever since the implementation of LVM in 1982, its legal position as well as application in institutional care has been subject of critical discussions within social work as well as in social science research. Such debate in the Nordic countries has until now mostly been marked by two important limitations. First, most comparisons are restricted to very few countries, e.g. four of the Nordic countries; secondly the notion of involuntary care is often limited to social legislation on compulsory care without taking criminal justice legislation or mental health legislation into account. The present dissertation studies legislations on compulsory commitment to care of persons with substance use problems (CCC), and compares these legislations from a larger number of countries, on global or European levels. This approach makes it possible to explore the great variation in CCC legislation between countries, i.e. type of law (criminal justice, mental health care and social or special legislation),  time limits (maximum duration) as well as levels of ambition, ethical grounds, criteria for admission, and adaption to human and civil rights.  In addition, the comparisons between many countries are used to investigate factors related to different national choices in legislations from country characteristics, e.g. historical and cultural background as well as economic and social conditions, including level and type of welfare distribution. Available datasets from different times permits trend analyses to investigate whether CCC or specific types of such are increasing or decreasing internationally.         Empirical materials: Article I is based on three reports from the WHO on existence of CCC legislation, before the millennium shift, in 90 countries and territories in all populated continents. Articles II and IV are based on own data collection from a survey in 38 European countries. Article III uses a combination of those data and additional information from country reports in scientific and institutional publications in three times of observation during more than 25 years, and including a total of 104 countries. Additional data for Articles I and II are information on various countries' characteristics obtained from different international databases.         Findings based on data from WHO reports at the eve of the millennium show that CCC legislation was very common in the world, since 82 per cent of the 90 countries and territories had such law. Special administrative (“civil”) legislation (mental health or social) was somewhat more prevalent (56 %), but CCC in criminal justice legislation was also frequent and present in half of the countries. The study shows that economically stronger countries in the western world and many of the former communist countries in Eastern Europe, the so-called "first and second worlds" in cold war rhetoric, more often had adapted to the recommendations made by WHO in the 1960ies, with CCC more often regulated in civil legislation. In the so-called "third world" countries, CCC in criminal justice legislation dominated. The new data collection from 38 European countries ten years later confirmed that legislation on CCC is very common, since 74 per cent of the explored countries have some type of legislation. The most common type was now CCC in criminal legislation (45%), although special administrative legislation (mental health or social) was almost equally common (37%). Special administrative legislation on CCC (both acute and rehabilitative), was more common in countries with historic experience of a strong influential temperance movement, and in countries with distribution of health and welfare more directed through the state, while countries with less direct government involvement in distribution of health and welfare and lacking former influence of a strong temperance movement more often had CCC in criminal justice legislation. During all the 25 years period from early 80ies up to 2009, it was more common for countries to have some type of law on CCC than not, although some reduction of CCC legislation is shown, especially during the last decade. But within countries having CCC, more cases are compulsorily committed and for longer time duration. This is related to a global shift from civil CCC to CCC in criminal justice legislation, directly in the opposite direction from what WHO recommended in the 60ies. Changes in CCC legislation are often preceded with national political debate on ethical considerations, and criticisms questioning the efficiency and content of the care provided. Such national debates are frequent with all types of CCC legislation, but ethical considerations seem to be far more common related to special administrative (civil) legislation. National legislations on CCC within Europe should conform to the human and civil rights stipulated in ECHR (1950). There seems, to be some limitations in the procedural rules that should protect persons with misuse or dependence problems from unlawful detentions, regardless type of law. The three types of law differ significantly in terms of criteria for CCC, i.e. the situations in which care may be ensured regardless of consent.        Conclusions: It is more common that societies have legislation on CCC, than not. This applies internationally – in all parts of the world as well as over time, for a period of 25 years, at least. Sweden’s legislative position is not internationally unique; on the contrary, it is quite common. Law on CCC tend to be introduced in times of drug epidemics or when drug-related problems are increasing in a society. Changes in CCC legislation are often preceded by national debates on ethics, content and benefits of such care. These findings here discussed may reflect different concurrent processes. A shift from welfare logic to a moral logic may be understood as more moralization, perhaps due to relative awaking of traditionalism related to religious movements in various parts of the world (Christian, Hindu, Muslim or other). But it may also be understood from more libertarianism that stresses both individual responsibility for one’s welfare and the state´s responsibility to discipline behaviours that inflict negatively on the lives of others. Possibly do these two tendencies work in conjunction to one another. At the same time, however, there is a stronger emphasis on care content within criminal justice CCC, especially in the Anglo-Saxon drug court system. Some shift within Civil CCC is also noticed, i.e. from social to mental health legislation. Thus drug abuse and dependence is increasingly more recognized and managed in the same way as other diseases, i.e. an increased normalization. Since social CCC has been more in focus of research and debates, this may also result in CCC turning into a more hidden praxis, which from ethical perspectives is problematic. The thesis shows that there are examples of focus on humanity and care in all three of the law types, but there are also examples of passive care, sometimes even inhumane and repressive, in all types. Thus, type of law cannot be said to in general correspond to a specific content of care. Although CCC can be delivered in accordance with human and civil rights, there is still a dissatisfying situation concerning the procedural rights that should ensure the misuser his/her rights to freedom from unlawful detention. The possibility to appeal to a higher instance is missing in about 20 percent of European CCC laws, although not differentiating one type of legislation from the others. A clear difference between the three law types concerns criteria that form the basis for who will be provided care according to the laws. This is of major importance for which persons of the needy who will receive care: addicted offenders, out-acting persons or the most vulnerable. The criteria for selecting these relate to the implicit ambitions of CCC – correction, protection, or for support to those in greatest need for care. The question is what ambition a society should have concerning care without consent in case of substance abuse and addiction problems. The trend that CCC according to special administrative legislation is declining and criminal legislation increases in the world should therefore be noticed.  Keywords: Alcohol, drugs, substance misuse, coercive care, compulsory commitment to care, involuntary care, mandatory care, legislation, human and civil rights, comparative analysis, prediction models, and trend analysis