110. Article 94 of the Constitution states that no-one may be taken into custody or otherwise deprived of their liberty except in cases determined by law and in a manner prescribed by law. It goes on to state that deprivation of liberty must be necessary and must not constitute a disproportionate infringement. A person deprived of their liberty is entitled to bring their case before a court without undue delay. Deprivation of liberty must be exercised in a non-discriminatory manner; see Article 98, second paragraph, of the Constitution. It follows from this that no-one may be deprived of their liberty solely because of their disability, and that persons with disabilities are entitled to constitutional rights on an equal basis with others.
111. Persons with disabilities have a right to liberty and security of the person on an equal basis with everyone else in Norway. They must not be subjected to arbitrary treatment. Norway's interpretation of Article 14 of the Convention (see also Article 25) is that the Convention does not lay down a prohibition against necessary compulsory admission or treatment or persons with mental illness as long as any deprivation of liberty and treatment is justified by objective criteria that go beyond the existence of a mental illness. Therefore, in its interpretative declaration made upon ratification of the Convention, Norway declared: "[...] the Convention allows for compulsory care or treatment of persons, including measures to treat mental illnesses, when circumstances render treatment of this kind necessary as a last resort, and the treatment is subject to due process protection." The Government maintains this interpretative declaration and deems it to be in line with the wording in Article 14 and in accordance with the prevalent understanding of the Convention among the States Parties. The fact that the declaration accords with the prevalent understanding of the Convention among the States Parties is reflected in the States Parties' reports to the Committee on the Rights of Persons with Disabilities and with the Committee's concluding remarks to these reports.
112. The UN Committee on the Rights of Persons with Disabilities has made general comments on Article 12 of the Convention. These comments also concern Articles 14 and 25. Norway submitted its response to these comments, in which it gives further justification for why the Government maintains its interpretative declarations regarding Articles 12, 14 and 25. Regarding Article 14, Norway has stated: “Article 14 no. 1 b) affirms that “the existence of a disability shall in no case justify a deprivation of liberty”, and Norway fully agrees with this. However, this provision may not be read as signifying that the existence of a mental disorder may not be one of several criteria for the use of non-consentual institutionalisation and treatment. Article 14 prohibits legislation and practices where the existence of a disability alone justifies the deprivation of liberty or compulsory treatment. This interpretation of the Convention is also supported by state practice of the State Parties to the Convention.
113. While agreeing that mental health services should as far as possible be based on voluntary consent, and that it should be a goal for the national health care services to minimize the use of compulsory care and treatment to the extent which is absolutely necessary, Norway is of the opinion that the Convention allows for legal provisions that enable compulsory care or treatment of mentally ill persons, given that these provisions meet a number of strict criteria.
114. As already mentioned, the existence of a mental illness or disability is not in itself sufficient to allow deprivation of liberty or compulsory treatment. However, compulsory care and treatment may be appropriate when this is necessary in the individual case, for instance when persons are incapable of making decisions about their treatment and/or present a serious risk of harm to themselves or other people, and when no less intrusive means are likely to be effective. The treatment given should be in accordance with generally acknowledged medical standards. The decision to submit a person to compulsory care or treatment should be subject to strict legal safeguards, and the patient should have access to review of the decision by an impartial body. Compulsory care and treatment which meets these criteria cannot be considered unlawful or arbitrary deprivation of liberty under Article 14 of the Convention.”
115. The Mental Health Care Act prescribes that provision of voluntary mental health care must be attempted before the decision to implement involuntary mental health care is made. The use of coercion must be a subsidiary solution. The patients must suffer from a "severe mental disorder" before compulsory mental health care may be implemented, and the Act prescribes “stringent supplementary conditions,” one governing treatment and one governing risk. The condition governing treatment comprises two alternatives, one for improvement and one for deterioration. The alternative for improvement implies that the patient’s prospects of restored or significantly improved health will be significantly reduced without compulsory mental health care. The alternative for deterioration implies that there is a strong probability that the condition of the patient will deteriorate significantly in the very near future unless compulsory mental health care is implemented. The condition governing risk implies that compulsory mental health care is necessary to prevent the patient from "constituting an obvious and serious risk to his or her own life or health or that of others." Satisfaction of one of the supplementary conditions is sufficient. Nonetheless, the Act prescribes that a discretionary overall assessment be made, and that compulsory mental health care must clearly appear to be the best solution for the patient.
116. Regarding compulsory treatment itself, the Act prescribes, among other things, that it must be "clearly in accordance with professionally recognized psychiatric methods and sound clinical practice." The Act also prescribes that treatment measures may only be initiated and implemented "when there is a great likelihood of their leading to the cure or significant improvement of the patient’s condition, or of the patient avoiding a significant deterioration of the illness." Electroconvulsive therapy (ECT) may only be carried out on the basis of the principle of necessity or valid patient consent.
117. Under the provisions governing compulsory admission in the Mental Health Care Act, the patient must be examined by two physicians. The patient and next of kin may lodge an appeal with the supervisory commission against a decision to apply coercion. Appeals against decisions to implement compulsory admission generally do not have suspensive effect. Compulsory treatment is contingent on an administrative decision made by the responsible mental health professional. Appeals against decisions to perform compulsory treatment with medication lodged within 48 hours after the patient is informed of the decision have suspensive effect until such appeals are decided. However, this does not apply if the patient will suffer serious adverse health consequences if treatment is delayed. The supervisory commissions serve as the appeal bodies in connection with the establishment and performing of compulsory mental health care in general, including the use of coercive means, while the county governors handle appeals against decisions to use forced medication.
118. If no appeal is lodged against the use of compulsory mental health care, the supervisory commission must nevertheless, on its own initiative, assess the need to continue compulsory mental health care three months after the decision was made. Furthermore, the responsible mental health professional must continually assess whether or not the conditions for compulsory mental health care still prevail. Judicial review of the use of coercion may be sought.