Samfunnsvernets begrensninger : En kritisk analyse av lovverket for gjennomføring av dom på tvungent psykisk helsevern.

Abstract

This thesis is a critical analysis of court-ordered compulsory psychiatric care, with the main emphasis on the regulations related to the implementation of this type of legal response.

Court-ordered compulsory psychiatric care is not regarded as punishment, but as a special penal sanction with a specific purpose: to protect society against serious crimes. Nevertheless, it can be argued that criminal law sanctions against criminally insane offenders constitute a violation of the principle that such sanctions should be reserved for those who are responsible and can be blamed for their actions. The treatment of persons with severe mental illness is first and foremost a task for the health services, regardless of whether or not they have committed a crime. In light of this, special penal sanctions have been criticised. For the Norwegian legislator, however, the need to protect society against serious crime has been sufficient to prompt the adoption of court-ordered compulsory psychiatric care.

The thesis will critically examine the premise that the special penal sanction is a necessary supplement to civil law in order to safeguard the protection of society. The question is whether the special penal sanction reform (which regulates court-ordered compulsory psychiatric care) has resulted in strengthened crime prevention—which was both the purpose of the legislation and the justification for court-ordered compulsory psychiatric care. The answer is that there are problems with several aspects of the regulations, which together create strong doubts as to whether the sanction can be justified by the premise of strengthened crime prevention. The thesis will show that already at the legislative stage the sanction was characterised by compromises and an unresolved legislative will, which resulted in internal contradictions and a lack of clarity in the legislation. This in turn appears to increase uncertainty among those who will apply the legislation—the responsible physician or psychologist in the healthcare system.

This thesis is, therefore, a contribution to the discussion on the use of criminal law as a tool outside the criminal law's core prerogative related to accountability and punishment.