Saturday, 30 January 2016

On "Smykkeloven": The Danish Policy to Seize Personal Valuables and Money from Asylum Seekers

I suppose no one has missed the fast and radical transformation of European refugee and migration policy, following both the vast increase of refugees wishing to seek asylum in European countries during 2015, and the ongoing tragedy of people being killed while attempting to cross the the borders into the European fortress. In my earlier post on this, the focus has been on what occurs around the EU external borders and the inability of the EU to decide and enact a joint policy of sharing asylum seekers to defuse the problem. However, the transformations during the last year includes some rather drastic measures also inside EU itself. Not least by my own government, which has re-installed internal border controls between Sweden and Denmark, Germany, Poland, and so on, and the issuing of a transporter accountability legislation, leading to ID-controls akin those already routine at airports also at ports, train stations, etc. in Denmark and Germany. The Swedish turn-around rather quickly gave rise to a domino effect southwards within the EU, and quick changes of policy have occurred in Denmark, and are being announced in Germany as well. I predict that very soon we will be back at square one were we where when the horrific news of the mass deaths in the Mediterranean started to gain attention a few years back.

One of these changes, that have attracted a lot of negative attention, is the Danish so-called smykkelov; a statute prescribing Danish border police to seize and secure money and valuable assets (such as electronic equipment or jewelry), of asylum seekers, moving many people's minds to the well known Nazi-german organised robbery of Jewish assets, including the bending out of dental gold from people's teeth post slaughtering in the death camps. Thus, following the adoption of the law by parliament, The Guardian, published a satirical cartoon depicting the Danish PM, Lars Løkke Rasmussen, shown to the left. And another cartoon comment, published by The Independent, depicts the famous Havsfruen statue in the Copenhagen harbour thus:

As a tragicomical aside, these two pieces enraged the former leader of the Danish foremost anti-immigration party, now speaker of the parliament, Pia Kjeaersgaard – otherwise known as one the most fierce defenders of freedom of expression related to debates around the so-called Mohammed cartoons of Jyllandsposten – so that she publicly said they are "not fair" and that the newspapers would "have to withdraw them". And Swedish television aired a report on this, where also "ordinary danes" on the streets of Copenhagen exhibited similar crocodile tears when faced with the bitter taste of their own medicine.

Leaving such pathetic expressions of Danish nationalist hypocricy, however, a more serious accusation of possible hypocritical or double standard thinking has been wielded against those who criticise the Danish law. This since, first, apparently, most countries have various sorts of policies meaning that asylum seekers can be made to pay for things like housing, food, schooling of children, etc. during the trial of their application for asylum. This includes, for instance, Switzerland and, indeed, Sweden. Second, Danish politicians have argued that the Smykkelov is merely a case of applying a principle of equal treatment, as Danish residents (as the residents of most countries) are as a rule required to see to their own financial needs, and may only receive public welfare support when these have run out. I found these arguments interesting, as they basically rest on one sound idea: that there is no principal difference between residents and non-residents of a country. So let's have a closer look at how this way of looking at the issue relates to the Danish law.

1. Let's for starters leave out the option of challenging the principle that people should not receive public welfare support until their private assets have run out. Not because it cannot be challenged, it can for instance be argued that it is pragmatically stupid and inefficient, as it tends to lock people into dependency on public welfare. But only for the sake of the argument, let's leave that discussion to a side for now.

2. Let's also leave out the discussion whether or not it is OK for public agencies to demand payment for the processing of a request for what is a legal right (say applying for a tax subsidy, or requesting help by the police)). I would personally like to quarrel with that notion, but for the sake of argument, let's leave also this issue uncontested.

3. Let's then compare the policies of the mentioned examples, Denmark, Switzerland and Sweden.

  • In the Swedish case, the policy in question regards the daily welfare allowance that an asylum seeker may receive while waiting for a decision on asylum and is described here. In short, it means that in order to receive allowance, you have to demonstrate need, and that includes declaring your assets of economic value. If these are found to be sufficient, no allowance will be granted and the person in question will have to pay their own way. Included in this assessment is also an assessment regarding the need to provide housing, whether or not that should be covered by the allowance, etc. There is in this case also a right to appeal the decision. Of course, if someone lies or cheats in this process, this person acts illegally and can be penalised accordingly.  This makes the conditions of asylum seekers almost exactly on a par with Swedish residents applying for public welfare support, and thus in full compliance with the principle of equal treatment referred to in the Danish discussion.
  • In Switzerland, as reported in the news (here, here, here), the procedure is rather different. In this case, the system is that asylum seekers are required to "hand over" all money exceeding 1000 Swiss francs to the authorities, as a sort of security for the costs of the Swiss state for assessing their application for asylum and providing upkeep, and that these money are repaid to any asylum seeker deciding to abolish the process within 7 months. Thus, there is no active "search and seizure" by police, but a legal obligation (and I assume the asylum seeker can be penalised for breeches of it) where the individual is left to decide how to take this responsibility, and – in addition – the valuables are not necessarily lost, but within the 7 month window function more as a deposition. At the same time, the level of viewing asylum seekers as responsible people just like anybody else is slightly less than in the Swedish case, as the handover is obligatory and the valuables then managed by the state. Thus, asylum seekers are not treated as anyone else, as I doubt that Swiss policy for residents is that these have a legal obligation to give almost all their money to the state, so that the state can then pay their bills. Or, if that is preferred, it is handed over to be kept by the landlord, the telephone company, the electricty provider, the supermarket on the corner, and so on.
  • The Danish case, as I have understood the now decided policy (see links above), moves rather more far away from the idea of asylum seekers as actual people, even remotely on a par with residents of the country. Here the idea is exactly "search and seizure" – as I understand at the discretion of individual police officers and with no legally secured opportunity to get anything back, legal appeal, etc. Basically, the border policy is to take from you what you have if you apply for asylum, and then its gone; what we otherwise like to call robbery. I'm quite sure that this is not how residents' need to pay their way in various instances of Danish life is handled by the Danish state – if that were so, knowing quite a bit of Danish people, I think I'd heard about it by now. My impression is that this civic duty (which we accept for the sake of argument) is handled in Denmark as everywhere else: you receive a notification of payment, that can be challenged and for which you may apply for public support to handle, which you then are left to take responsibility for yourself, and if you don't take it you suffer the consequences. This basically also applies to taxes, although it's a bit of a complex process that proceeds via revenue, appeals, applications for subsidies, etc. The Danish resident is viewed as a person capable of taking responsibility for his or her own actions, with a basic right to dispose of his or her assets as she pleases (within what is lawful) and accountable for the ensuing upshots of his or her decisions. That is, the argument from equal treatment seems very far from supporting anything even remotely resembling the Smykkelov.

So how would the treatment of Danish residents have to look like for the Smykkelov to be supported by the appeal to equal treatment? I suppose something like this:

  • At the end of every month, the police scans you bank account and transfers all of the money there to a state account, used to pay for your rent, your food, your clothes, etc.
  • In this period, the police also breaks into your home and seizes all valuable assets for the same purpose.
  • In addition, there is the regularly seizure of tax for public services, but now at the discretion of individual police officers and no legal room for appeal, etc. 
So now, we all wait for this apparently generally desired reformation of danish civic life. As the title of the danish national anthem goes:

Der er et yndigt land!

Saturday, 16 January 2016

Conscientious refusal / objection in health care: new article draft online, and an upcoming symposium

A while back, I made a post with a number of critical remarks on the idea of a legal right of health care professionals to so-called conscientious refusal/objection. That is the idea that such professionals should enjoy a guaranteed exemption from the standard labour law rule, that employee's are obliged to carry out legal instructions of their employer, in cases when they object to the practice they are instructed to carry out, or its legal status. I made the post mainly to get some opinions of particular relevance to current health care policy off my chest, but as it turned out, these ideas have attracted attention within the international community of more systematic research undertaken in this area.

First, the post lead to an invitation to contribute to a coming special issue of the journal Cambridge Quarterly of Health Care Ethics, guest edited by Alberto Giubilini and Julian Savulescu, on the very subject of the ethics of conscientious objection/refusal in health care.

Second, I was invited to contribute to a symposium on the same topic at the Brocher Foundation in Geneva in  June this year, organised once again by Julian, now in collaboration with Sharyn Milnes. My contribution to the symposium is entitled "All or nothing: The legal, ethical and jurisprudential basis of legal rights to conscientious objection of voluntarily employed professionals", and the contribution to the special issue also focus on the combination of ethical and legal reasons in this area.

The work on this article has been undertaken in collaboration with my Danish colleague Morten Ebbe Juul Nielsen, who made contact almost immediately when the blog post was online to suggest that we collaborate, as he had been thinking along the lines of some of the central points of the post already, and had started to scan the relevant literature in more detail. Said and done, the first result of our efforts, the submitted draft manuscript to the mentioned special issue, entitled "The Legal Ethical Backbone of Conscientious Refusal",  can now be viewed online here and here. As this submitted manuscript is undergoing review and will almost certainly be subject to revision, me and Morten are happy to receive any sort of constructive comments.

Friday, 15 January 2016

New article published: The counseling, self-care, adherence approach to person-centered care and shared decision making: Moral psychology, executive autonomy, and ethics in multi-dimensional care decisions

A few days ago, an article by myself and three colleagues from philosophy, psychological safety research and pediatrics that's been accepted for a long time finally came online at the journal Health Communication's website. The article explores how standard accounts of how models for increased interaction and collaboration between patients and health care professionals – often termed patient or person centred care, and shared decision-making – fit badly to a broad group of patients; namely those whose care are mostly self-administered, who suffer vulnerable decision capacities and who exhibit a weakening adherence to decided care plans. In the article we illustrate the point with a study of adolescent diabetes care, based on video-taped consultation meetings between patients and health care professionals, and develop a general argument based on broadly recognised research in decision-making and moral psychology to revise the standard approach to person centredness and shared decision-making for this group of patients, focusing less on making shared rational autonomous decisions in health care meetings, and more on emotionally empowering patients and help them to develop virtues necessary to take responsibility for the self-care they agree on in collaboration with health professionals. Here is the abstract:

This article argues that standard models of person-centred care (PCC) and shared decision making (SDM) rely on simplistic, often unrealistic assumptions of patient capacities that entail that PCC/SDM might have detrimental effects in many applications. We suggest a complementary PCC/SDM approach to ensure that patients are able to execute rational decisions taken jointly with care professionals when performing self-care. Illustrated by concrete examples from a study of adolescent diabetes care, we suggest a combination of moral and psychological considerations to support the claim that standard PCC/SDM threatens to systematically undermine its own goals. This threat is due to a tension between the ethical requirements of SDM in ideal circumstances and more long-term needs actualized by the context of self-care handled by patients with limited capacities for taking responsibility and adhere to their own rational decisions. To improve this situation, we suggest a counseling, self-care, adherence approach to PCC/SDM, where more attention is given to how treatment goals are internalized by patients, how patients perceive choice situations, and what emotional feedback patients are given. This focus may involve less of a concentration on autonomous and rational clinical decision making otherwise stressed in standard PCC/SDM advocacy.

The article itself can be found here. For those who lack access to university libraries or subscriptions, a so-called postprint of the article – i.e. the author's finally submitted manuscript after peer review, but before editorial and type setting changes, pagination and so on – can be found here. Or you can contact me, to request a pdf of the published version.