For a long time, the legal framework of open involuntary mental treatment inSweden has been criticized as being contradictory and unpredictable. It iscrucial that the legislation concerning the restrictions of individual integrityand freedom should comply with the high standards of legal certainty (aSwedish term "rättssäkerhet"). It is of utmost importance that the involuntarymental treatment legislation is clear and predictable for both law practitionersand patients.In this thesis, the legal framework for open involuntary mental treatmentis investigated and critically assessed from a legal certainty perspective. Thisis done using the legal dogmatic method. The legal framework pertaining toopen involuntary mental treatment is given interpretation and systematisationwith the help of the traditional sources of law, such as legislation, case lawand preparatory works, as well as legal dogmatic literature.Open involuntary mental treatment may be provided to the patient outsideof the health care facility. This is possible if special conditions are met.Such conditions may require that the patient agree to receive medication orthat his or her whereabouts be restricted to a certain place. One of the legalprerequisites for open involuntary mental treatment is that the patient opposesthe treatment in question. At the same time, the medical providers are notallowed to use coercion to implement the treatment conditions, nor may theyimpose any sanctions if the patient does not comply with the prescribed conditionsof the care. Whilst the term open involuntary mental treatment (öppentvångsvård in Swedish, which can be translated literally as "open enforcedcare") signals the possibility of resorting to coercion, no coercive measuresare permitted within this form of care.However, it seems inconsistent to forbid the use of coercive measures ininvoluntary treatment, i.e. treatment which is given without a patient's consent.The way open involuntary mental treatment conditions are formally setforth in the Swedish legal system assumes that the patient opposes the treatment- whilst at the same time requiring that he or she must voluntarilycooperate during the aforesaid treatment. This appears to be contradictory.It can be argued that the patient's compliance with the special conditionsis based on the lack of knowledge of the rules that regulate open involuntarytreatment or on fear of being readmitted to inpatient care. It can also be discussedwhether such compliant behavior indicates the presence of an underlyingthreat or that the patient has been misguided or misinformed regardingthe regulation of open psychiatric care, which can be seen as manipulation. Thus, lack of consent on the one hand and lack of authority to resort tocoercion on the other hand appear to be two conflicting requirements preventingthe application of open involuntary care from complying with the legalrequirements. The study demonstrates that there are significant shortcomingsin the current regulation regarding open involuntary mental treatment, especiallyin terms of predictability. The analysis concludes that there is a need toreview the current legal framework for open involuntary mental treatment.4
| Identifer | oai:union.ndltd.org:UPSALLA1/oai:DiVA.org:su-199447 |
| Date | January 2021 |
| Creators | Osmuk, Kateryna |
| Publisher | Stockholms universitet, Juridiska institutionen |
| Source Sets | DiVA Archive at Upsalla University |
| Language | Swedish |
| Detected Language | English |
| Type | Student thesis, info:eu-repo/semantics/bachelorThesis, text |
| Format | application/pdf |
| Rights | info:eu-repo/semantics/openAccess |
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