Nordisk Tidsskrift for Menneskerettigheter Vol. 24 Nr. 4:2006:

English abstracts

Retten til helse som menneskerettighet
By Asbjørn Eide

Abstract: The Right to Health as a Human Right: The article explores the content of the human right to health as set out in the United Nations Covenant on Economic, Social and Cultural Rights (CESCR) Article 12 and with regard to children in the Convention on the Rights of the Child (CRC) Article 24. It examines the obligations by State parties to implement, to the maximum of their available resources, these rights to everyone within their respective territories. The analysis of the content of the right and the corresponding obligations is based mainly on the authoritative general comments adopted by the two relevant treaty bodies of the United Nations, the Committee on Economic, Social and Cultural Rights and the Committee on the Rights of the Child. The role of these two international monitoring bodies are discussed. The article ends with a discussion of the supplementary benefit that could be obtained if the optional protocol to the CESCR now under discussion could be adopted.
Key words: Economic, social and cultural rights; right to health; state duties; obligation to respect, protect, fulfil; monitoring; complaint procedure; optional protocol

Sosiale menneskerettigheter – av betydning for norsk helse- og sosialrett?
Alice Kjellevold

Abstract: Have Social Human Rights any implications for regulation of health and social issues in Norway? The starting point of this article is the right to an adequate standard of living, as the core of the Social Human Rights, with support from the right to physical and mental health and the right to social security. The main point in the article is the right to adequate housing and the right to a justifiable economic standard of living. Official reports and statistics indicate seriously shortage of adequate housing and economic support for vulnerable and marginalized groups. The article discuss whether the Norwegian government has taken steps, with a view to achieving progressively the full realization of the rights in these areas, particularly the adoption of legislative measures.
Key words: Social human rights, Social security, Adequate standard of living, Adequate housing, State obligations.

Svangerskapsomsorg – en menneskerett også for fattige kvinner
Av Gunnar Kvåle og Henriette Sinding Aasen

Abstract: Safe Motherhood is a Human Right: Countries with a persistent high maternal mortality violate human rights. If we shall have any hope of reaching the millennium development goal of reducing maternal mortality by three quarter within 2015, health care for women must be given much higher priority in low income countries. Individual countries and the international community must contribute more, financially as well as through a human right approach. It is proposed that the Nordic countries should contribute by targeting a larger share of the development aid to health care for women and through an initiative for establishing a working group and a Special Rapporteur on maternal mortality under the UN Commission on Human Rights.
Key words: Maternal mortality, human rights, health care, reproductive rights, safe motherhood

Demens, samtykkekompetanse og rett til selvbestemmelse – utfordringer ved behandling og forskning
Av Inger Hilde Nordhus, Arvid Skjerve og Henriette Sinding Aasen

Abstract: Dementia, decisional capacity and the right to self-determination: Challenges in treatment and research: – Loss or reduction of decisional capacity is often an inevitable consequence of Alzheimer disease and other progressive dementias. This has legal as well as psychological and social implications. In this article we address loss of decisional capacity in light of the individual right to exercise self-determination as far as possible. This perspective is of particular importance to clinicians and researchers studying dementia and who need to determine whether a patient has the capacity to provide a valid informed consent to medical and psychological treatment and/or research. As the number of cognitively impaired elderly person’s increases, the need for valid and reliable assessment of their capacity to consent to treatment and research participation will grow. In terms of diagnosis, dementia implies cognitive deficits that in turn predict decisional impairment. Still, the question of whether a person has a decision-making competence is not to be decided by a diagnosis, but on the basis of an individual assessment. In the present paper, we discuss decision-making competence in terms of a multi-factorial cognitive process. In addition, we briefly review methods to ensure the validity of the consent and emphasize the need to further develop methods enhancing individual autonomy and self-determination in the process of giving consent.
Key words: Decisional capacity; informed consent; dementia.

Det menneskerettslige vernet mot frihetsberøvelse og tvang i behandlingsøyemed innenfor psykiatrien
Av Aslak Syse

Abstract: In this paper, the focus is to explore to what extent Human Rights instruments may protect patients in psychiatric hospitals against involuntary detention, forced medication and other use of forced treatment and handling by the staff members. The binding HR-conventions to protect civil and political rights seem to open for the use of a wide range of forced interventions as long as they may be justified by “therapeutic necessity”. The soft-law instruments specifically assigned for protection of the dignity and autonomy of psychiatric patients seem to be of little effect in practice.
Key words: Civil commitment, involuntary treatment, forced medication, detention, psychiatric treatment

Grunnverdiar og grunnomgrep i debatten om bruk av tvang mot utviklingshemma og demente
Av Bjørn Henning Østenstad

Abstract: In this article the author discusses the basic values and concepts in the debate concerning use of coercion against individuals with cognitive impairment caused by various forms of dementia or mentally retardation. The traditional concept of individual autonomy, which is an important aspect of human dignity, has in a problematic way excluded persons with intellectual disabilities. Therefore, the author presents arguments in favour of the denomination of the competing values as right of self-determination and paternalism. He suggests that the concept of human dignity, which is the core value to be protected through human rights, should be seen as a balancing norm for the harmonization of the involved competing interests. Thus, in some cases use of coercion is necessary to secure human dignity of individuals with cognitive impairments that lead to decisional incapacity.
Key words: Autonomy, human dignity, paternalism, integrity, mental retardation, dementia