Rättsäkerhet i den psykiatriska tvångsvården
Lagstiftning och tillämpning
This study examines whether or not there are inherit flaws in Swedish legislation concerning psychiatric institutional care, or in the application of the act, which might lead to the failure of rule of law for the private citizen. Law (1991:1128) concerning psychiatric institutional care in certain instances (LPIC) aims to establish rules which will ensure rule of law for the mentally ill in case of psychiatric institutional care. Despite this, there are legal cases which indicate that these rules, and their implications, are not always considered at the psychiatric wards.The questions at issues which this study aims to answer are thus: Are there any deficiencies concerning rule of law in LPIC 2?3 §§, 4?6 §§, 7?10 §§,15?25 §§ and 32?33 §§ ? This section focuses on LPIC and its design. Whether or not the act adheres to rule of law is examined through a definition which has evolved through discussions of concept based in Peczeniks definition of rule of law. The second question at issue is: Does The National Board of Health and Welfare activity supervision and the National Psychiatric Coordination inquiry point to any deficiencies in the application of the regulation that might negatively impact rule of law? This section is based on the parts concerned with compulsory commitment in The National Board of Health and Welfare activity supervision and the National Psychiatric Coordination?s inquiry. The considerations of rule of law in the application of the rules are based on the definition of rule of law derived from Annika Staaf?s viewpoints. This definition deals with the application of the rules concerning compulsory commitment. The third question at issue takes the form of a discussion dealing with the first two questions. The answer is thus based on the answers to the two opening questions and includes an extra focus placed on the historical heritage and the future psychiatric institutional care.To answer the questions at issue a traditional legal method will be used. This means that the law is determined by studying texts of law and preparatory work. Doctrine concerning compulsory psychiatric commitment is also used. To achieve a deeper understanding of the questions at issue concerning rule of law that might arise in the usage of compulsory psychiatric commitment, a historical retrospect spanning the legislative development will be presented.The result produced by the analysis indicates that the legislation in accordance with the definition of rule of law based on Peczeniks definition in most cases can be considered to adhere to rule of law. On the other hand, the demand for necessity , which rules the assessment of compulsory psychiatric commitment, is found to be indeterminable. According to the inquiry this will in some cases lead to arbitrary and routine-like admissions, and in other cases lead to the patient being in bad condition at the time of admission. The patient will thereby find it difficult to gain any usefulness from the care given. The inquiry here points to local variation which leads to a non-existing predictability. The second question at issue, where Staaf?s definition of rule of law is used, finds a somewhat higher number of deficiencies. I can in my paper thus determine that most of the deficiencies can be found in the application of the act. The gravest deficiency from a rule of law standpoint found by The National Board of Health and Welfare is the lack of local instructions regarding the monitoring of time limits during compulsory commitment. Based on these conclusions the paper?s question at issue is discussed in the last chapter. Like the National Psychiatric Coordination finds in its inquiry, this paper finds the answer to the question at issue to be that a reformation of the act is needed. In light of the historical exposition I find that new forms of care and methods of treatment have arisen since the conception of the act, which provides new possibilities for the compulsory psychiatric commitment.