67. Access to all goods and services is important, and in Norway this is assured by rules on universal design and individual accommodation in the Anti-Discrimination and Accessibility Act and other legislation, and by assistive measures and welfare schemes.
Outdoor recreational activities
68. Due to Norway's location and topography, very few outdoor recreational areas are universally designed to accommodate all user groups. However, several outdoor recreational areas, particularly in local communities, have implemented measures to improve accessibility for persons with disabilities. With respect to environmental protection of outdoor recreational areas, growing attention is given to universal design and increased accessibility in applications submitted to the grant scheme for adapting these areas. The main goals behind the grant scheme are to reduce the number of physical barriers to outdoor recreational activities and to facilitate more outdoor recreational activities for everyone. As a result, the percentage of nationally protected outdoor recreational areas adapted for persons with disabilities will grow.
69. In cooperation with municipalities and outdoor recreation organisations, the Norwegian Mapping Authority has registered the accessibility of municipal centres and recreational areas. Data from 150 municipal centres and outdoor and recreational areas are available. Developments will be measured by using follow-up data.
Accessibility to cultural heritage
70. A range of activities arranged as part of the Directorate for Cultural Heritage's conservation programmes are linked to improving accessibility and universal design in the area of cultural monuments and cultural environments. The Ruin Conservation Project includes measures to improve accessibility at all current conservation and restoration projects.
Article 10 Right to life
71. Under Article 93, first paragraph of the Constitution, every human being has the right to life. Both the Constitution and Norwegian law in general protects the right to life of persons with disabilities on an equal basis with others. Norway interprets the right to life in Article 10 of the Convention to apply from birth. The regulations governing termination of pregnancy are therefore not covered by the Convention.
Article 11 Situations of risk and humanitarian emergencies
72. Norway's civil protection and emergency preparedness activities are based on the principles of responsibility, proximity, equality and cooperation. The principle of responsibility means that the authority, undertaking or agency with everyday responsibility for an area also has responsibility for necessary emergency preparedness and executive services during crises and emergencies. The principle of proximity means that management of a crisis must be organised at the lowest possible level. These principles also apply to civil protection and emergency preparedness tasks affecting persons with disabilities. The Ministry of Justice and Public Security has been assigned the role of coordinator to achieve cohesive and well coordinated emergency preparedness.
73. The basis for good municipal civil protection is awareness and knowledge of risk and vulnerability through an integrated risk and vulnerability assessment. Such an assessment should form the basis for the municipalities' efforts to reduce risk and vulnerability through preventive activities, enhanced preparedness, and improved crisis management capability. The regulations governing municipal emergency preparedness and the guidelines on integrated risk and vulnerability assessments in the municipalities place emphasis on assessing specific challenges related to critical civil society roles and loss of critical infrastructure. Following up particularly vulnerable groups is defined as a critical societal function. One group that may be particularly vulnerable is that of persons with disabilities. In 2012, a publicly appointed committee published its report, NOU 2012: 4 Trygg hjemme: Brannsikkerhet for utsatte grupper [Safe at home: Fire safety for vulnerable groups]. The report contains several proposals for how fire safety for vulnerable groups can be improved. On the basis of this study, a working group published a report in 2014 on how different municipal services could cooperate on monitoring fire safety for vulnerable groups living at home, including persons with disabilities.
74. The National Communication Strategy for Fire Safety 2013‒2020 will help strengthen and coordinate communication tasks performed by various actors. Communication and information will be particularly directed at vulnerable groups. The goal is for coordination and more targeted national efforts to help raise awareness of fire safety and reduce the number of fire deaths. Moreover, it has been decided to implement a trial scheme whereby deaf and hearing impaired persons can make emergency calls using text messaging.
Article 12 Equal recognition before the law
75. Article 98, first paragraph of the Constitution establishes that all people are equal under the law. The starting point is that all persons have legal capacity and are holders of rights, and that all persons of the age of majority possess legal capacity to act.
76. When ratifying the CRPD, Norway issued a declaration on Norway's interpretation of Article 12. The Government upholds the declaration and considers it consistent with the wording of Article 12, see Article 4, and with a broad understanding among the States Parties to the Convention. Reference is made here to the General Comment No. 1 to Article 12, third paragraph of the Committee on the Rights of Persons with Disabilities.
77. The Storting adopted a new Guardianship Act in 2010, and the Act entered into force in 2013. One of the purposes of the new Act was to bring Norwegian law in accordance with Article 12 of the Convention on the Rights of Persons with Disabilities. It was decided to give traditional terms such as "guardian" and "guardianship" new content in the Act. This decision has presented some challenges with respect to communication. We attempt here to use the term "individually tailored guardianship" to stress the fact that this is a modern form of assistance arrangement based on the integrity, will and preferences of the individual.
78. The Convention implies a paradigm shift. In our view, the paradigm shift requires a change of attitude that is reflected in legislative amendments, a need to build competence and a need for a learning organisation that can strive continuously for better solutions and better protection of the rights of persons with disabilities.
79. Norway therefore found it necessary to draw up a new regulatory framework and a new organisation in order to implement Article 12 of the Convention in practice. As part of the organisational reform, local authority for guardianship was transferred to the county governors. The Norwegian Civil Affairs Authority has been appointed the central guardianship authority, and will supervise the county governors' discharge of responsibilities pursuant to the Guardianship Act and will deal with appeals against the county governors' decisions. This means that the responsibility now lies with a government body with broad, interdisciplinary competence. Both employees and guardians also underwent extensive training in the period between the adoption of the Act in 2010 and its entry into force on 1 July 2013. The bulk of this training involved introducing them to a new act based on the will and preferences of the individual. In our view, thorough and repeated training is important for implementing the paradigm shift in practice. These measures resulted in a considerable increase in the level of expertise and provided the basis for a competent and learning organisation in this area. In the preparatory works to the Guardianship Act, it is stressed that the purpose of the arrangement is that "every individual shall have the right – according to their abilities and capacity – to shape their life according to their own wishes and ideas" (unofficial translation). It was also pointed out that "the fact that some persons have a greater need for help than others should in principle be grounds for providing them with support and assistance in shaping their own lives, not for depriving them of their legal capacity". These principles form the basis both for the drafting of the Act and for the practice of the various measures in the Act.
80. Although the goal is clear, it is not always easy to achieve good arrangements and solutions in practice. However, because of a significant investment in a competent organisation, we will be able to keep working for improved solutions. This will also be vital for a change of attitude. The awareness that it is the preferences and will of the individual that must form the starting point for the scheme must be part of a continuous process, and the Government will continue to focus on information and training of guardians and the county governors on the new law and the principles mentioned above.
81. Whereas the Convention applies to a broad range of persons and situations, the Guardianship Act applies to a relatively narrow group of persons with a particular need for support. Persons who do not fall within the scope of the Guardianship Act may have a right to other types of support and assistance under other legislation.
82. The Guardianship Act governs three different measures:
1) Provisions regarding powers of attorney. This is a private-law, user-controlled scheme and an alternative to an officially appointed guardian. The right to establish a power of attorney – and appurtenant guidelines – constitute an important support mechanism which may be appropriate as a substitute for guardianship. The person will then be able to define his or her own needs for assistance, and designate the person(s) to provide this assistance. 2) If a person has not set up a power of attorney, the Act makes provision for a special right of representation. This right of representation makes it possible for close family members to assist a family member who needs assistance in daily financial tasks, such as buying food, paying the rent, etc. The right of representation means that the need to appoint a guardian is postponed or reduced. The purpose of the right of representation is to help the person to continue the life he or she has chosen to live up to the present, according to the person's own preferences and will. If there is a need for changes in the status quo (the person needs assistance to move to another place, make an investment, sell a car or an apartment, etc.), a guardian needs to be appointed instead. 3) The third measure in the new Guardianship Act is a modernised form of guardianship: an individually tailored guardianship. Such guardianship is relevant where there are no existing powers of attorney, see above, or where the powers of attorney do not provide authorisation for sufficient assistance. The rules concern (1) the guardian's relationship with the disabled person and (2) the guardian's role in relation to external third parties – typically parties to private-law contracts and public authorities. The relationship between the person and the guardian is discussed below.
83. In an arrangement with individually tailored guardianship, it is the responsibility of the guardian to supplement the person in areas where the person is in need of assistance so that, given tailored assistance, the person is able to exercise his or her legal capacity to act on an equal basis with others. The person's integrity, will and preferences are crucial. The guardian's mandate must never be made more extensive than necessary. Finding suitable guardians and ensuring sufficient contact between the guardian and the person concerned is important. Persons appointed as guardians must have the training that is necessary to enable them to discharge their office properly, and must be provided with the necessary guidance and assistance as needed. Training must be provided by the county governor and adapted to the content and scope of the guardian's assignment. In order to be appointed guardian, the person concerned must be appropriate for the office and consent to the appointment. The county governor is responsible for finding someone who can safeguard the interests of the person requiring a guardian in a satisfactory manner, based on an individual assessment. Decisions regarding the appointment of a guardian can be appealed.
84. Four categories of guardians are currently in use. The largest and most important category of guardians consists of close relatives such as spouse/cohabitant, child, parent and sibling. A relative will often have most insight into a person's preferences and needs, and ought therefore often to be chosen as guardian if he or she is willing, suitable and in other respects the best solution for the person concerned. Next, efforts are made to find a guardian amongst those surrounding the person: more peripheral relatives or others wishing to act as guardian. There is a definite voluntary aspect to the recruitment of such guardians, but there is an incentive in the form of tax-free remuneration. As a third option, a body of regular guardians has been established. These are persons for whom being guardians is a livelihood, but who can also undergo considerable professionalisation and specialisation to enable them to provide good guardian services. The new Guardianship Act aims to restrict the use of lawyers as guardians to situations where there is a need for legal expertise; see p. 185 of Proposition no. 110 (2008–2009) to the Odelsting on the Guardianship Act.
85. The starting point for individually tailored guardianships is that persons with disabilities have full legal capacity to act on an equal basis with others, and that persons needing it should receive the help and support they need in order to exercise their legal capacity to act. The majority of guardianships pursuant to the Guardianship Act of 2010 accordingly imply no restrictions on legal capacity to act. The responsibility of the guardians is to help and support persons with an illness or disability who are in need of such assistance. A person for whom a guardian is appointed must give written consent to the establishment of the guardianship, the scope of the guardianship, and to the person selected to be the guardian, unless he or she is not in a position to understand what consent entails. The guardianship must be tailored to the person in need of assistance, and exercised in consultation with him or her.
86. The clear fundamental rule is that the guardian cannot make dispositions to which the person in need of assistance is opposed. There are exceptions to this, when the person under guardianship is subject to restrictions on his or her legal capacity to act in the area in question (see below for further discussion of this point). In such cases, too, the guardian's competence with respect to the person concerned must be interpreted in light of the principle of using the "least restrictive means" and other fundamental principles underlying the guardianship legislation.
87. Partial restrictions on a person’s legal capacity to act must only occur when it is absolutely necessary, and must be limited in scope to the areas of life where it is required. The guardian must continue to attach weight to the views of the person, and the spouse or cohabitant, if any, must be allowed to have a say. If the person disagrees with the guardian's decision, he or she may bring the issue before the county governor.
88. Persons who are incapable of taking care of their financial interests, and who act in a manner that is severely detrimental to their financial situation, may be subject to restrictions on their legal capacity to act in financial matters. A person can be subject to restrictions on his or her legal capacity to act in personal matters in particular areas if there is significant risk that he or she will act in a manner that may be materially detrimental to his or her interests. Nobody can be deprived of legal capacity per se; restrictions on legal capacity to act must always be limited in scope to what is necessary in each individual case.
89. Although partial restrictions on a person’s legal capacity to act is a serious intervention that must only occur in exceptional cases, there are nonetheless cases where this is necessary in order to protect the person's other rights. The right of self-determination must be balanced against other fundamental rights such as the right to life, the right to necessary medical care and the right to an adequate standard of living. If the possibility of partial restrictions on legal capacity to act is not allowed in cases where it is strictly necessary to prevent a person from inflicting serious harm on him- or herself, there is a risk that the person's other rights will suffer. Achieving a balance in the individual case between party autonomy on the one hand and other rights on the other can, however, be very challenging.
90. In cases where partial restrictions on legal capacity to act is necessary, it is essential to have mechanisms that ensure that this power is not abused. In Norway, partial restrictions on legal capacity to act must be decided by the district court. A person who has been subject to restrictions on legal capacity to act in certain areas, and who disagrees on a decision taken on his or her account, may bring the issue before the county governor and/or the court. The county governor also supervises the dispositions made by guardians.
91. Figures received from the guardianship organisation indicate that as of January 2015 there were less than 250 registered guardianships involving full or partial restrictions on legal capacity to act. This accounted for less than 0.7 per cent of a total of 36,200 registered guardianships for adults. These 36,200 apply only to adults; minors cannot be subject to restrictions on legal capacity to act. There are about 21,000 guardianships for minors. The statistics include decisions on legal incapacitation pursuant to the former Act of 28 November 1898 relating to the Declaring of a Person as Incapable of Managing his own Affairs. Such decisions are regarded as guardianships with full restriction of legal capacity to act for a transitional period of three years after the entry into force of the new Guardianship Act; see section 101 no. 3. These guardianships will be reviewed in the light of the new rules by 1 July 2016. At the end of the transitional period, the statistics will provide a better picture of the scope of guardianships with restrictions on legal capacity to act pursuant to the new Guardianship Act. It should also be noted that the data processing systems used in the guardianship organisations are undergoing development. Further work is necessary to ensure the quality of the statistics, and this will be a part of the continuing reform process.
92. Adapted use of powers of attorney may be an appropriate means of avoiding a situation where restriction on legal capacity to act emerges as the best solution viewed in the context of the person’s overall rights and needs. Guidelines on the establishment of such powers of attorney may therefore be important. We welcome information about other successful measures to establish support mechanisms.
93. The implementation in practice of the new Guardianship Act and the above principles is an ongoing process, and we will continue to focus on information and training for guardians and in the guardianship organisation in order to ensure that the preferences and will of the person in question remain in focus.
Exemption from accountability in criminal cases. Transfer to mental health care
94. A person who is exempt from criminal responsibility (does not have the capacity to be held criminally responsible for his or her actions) on grounds of insanity, unconsciousness or severe intellectual disabilities pursuant to section 44 of the General Civil Penal Code cannot be sentenced to ordinary punishment. If a person has committed specific serious breaches of the law, he or she may nonetheless on specific conditions be sentenced to a special sanction under criminal law. Under current law, there are two special sanctions for persons who are not accountable for their actions: a person who was psychotic or unconscious at the time of committing the act, see section 44, first paragraph, can be sentenced to the special sanction transfer to compulsory mental health care if the conditions in section 39 are fulfilled. A person who had severe intellectual disabilities at the time of committing the act, see section 44 second paragraph, can be sentenced to the special sanction compulsory care (section 39 a; see section 39).
95. Two basic conditions must be fulfilled before a person can be sentenced to compulsory mental health care or compulsory care; see section 39 of the General Civil Penal Code. First, the person concerned must be not liable to a penalty pursuant to section 44 of the General Civil Penal Code. Second, the special sanction must be necessary to protect society from repeated crimes of a serious nature. In addition, requirements are set for the nature of the contravention: only when the offender has committed or attempted to commit a serious violent felony, sexual felony, unlawful deprivation of liberty, arson or other serious felony impairing the life, health or liberty of other persons, can a special sanction be justified. A fourth condition is that there must be a specific risk of repetition.
96. The special sanction transfer to compulsory mental health care is implemented in the health service and follows broadly the same rules as compulsory mental health care issued pursuant to the Mental Health Care Act; see the description in Article 15. The first three weeks of compulsory mental health care must be taken on an inpatient basis in an institution; see section 5-3, first paragraph of the Mental Health Care Act. The responsible health care professional will then decide the level at which the order of compulsory mental health care is to be enforced. The person transferred by court order will be placed in the institution at an appropriate level in the health service. The practical point of departure is that follow-up of the person concerned is the same as the supervision of ordinary patients in the mental health care system. Pursuant to the Mental Health Care Act, in selecting the treatment level, "special consideration must be given to the treatment of the person transferred by court order, and in particular to the need to protect society against the risk of further serious breaches of the law." The responsible health care professional must place emphasis on the efficacy of the various types of treatment for the person sentenced to special sanctions, but this consideration must cede precedence to the need to protect society against the risk of new serious breaches of the law.
97. Persons transferred on special sanction serve their sentence at the same treatment institutions as ordinary patients. This means, in practice, that the persons concerned will be found at all levels, i.e. regional security department, local security department, other hospital departments, as inpatients or outpatients at district psychiatric centres.
98. A court order for transfer to compulsory care is enforced at a special unit for compulsory care. Compulsory care can take place either in a ward within the special unit or outside the special unit in the person's own home municipality. The special unit determines whether the special sanction will be applied in or outside the special unit in the individual case. The special unit has ultimate responsibility, also when the special sanction is applied outside the special unit. Section 39 a of the General Civil Penal Code stipulates further that convicted persons may be restrained against their will and returned in the event of escape, if necessary by force and with the aid of public authorities. This also applies when the judgment is enforced outside the special unit. Neither of these special sanctions is limited to a specific term, and they can last as long as there is a risk of repetition. In principle, these special sanctions can be lifelong. Convicted persons have the right to apply for remission of the sanction a year after the transfer order or a judgment denying remission is legally enforceable. Such applications must be brought before the court and determined by judgment.
99. The majority of persons assumed to be exempt from criminal liability will not be subjected to a special criminal sanction. Between 2002 and 2006, a total of 17 judgments of compulsory care and 84 judgments of transfer to compulsory mental health care were pronounced. By way of comparison, 13,081 breaches of the law (all categories) were dismissed in the same period due to doubt concerning the perpetrator’s capacity to be held criminally responsible pursuant to section 44 of the General Civil Penal Code.
100. In January 2013, a committee on accountability was appointed and assigned to conduct a broad-based review of the General Civil Penal Code's provisions on the lack of personal capacity as a ground for excluding criminal responsibility (including which conditions this ground of exclusion from criminal responsibility should be based upon) and the role of forensic psychiatry in criminal cases. The committee has submitted its report; see NOU 2014: 10 Skyldevne, sakkyndighet og samfunnsvern. [Capacity to be held accountable, expertise and protection of society]. The committee finds that the lack of personal capacity should be considered as a ground for excluding criminal responsibility and proposes extending a modified version of the medical principle as a ground for excluding criminal responsibility on the basis of a lack of mental capacity. In the rule proposed by the committee, it is made clear that only an offender who is psychotic with a pronounced degree of psychotic symptoms can be excluded from being held criminally responsible. Furthermore, only the court, and not the expert witnesses, must make statements and reach conclusions on the question of whether the perpetrator was "psychotic" under the law. The committee further proposes some changes in the rules on special criminal sanctions. Amongst other things, it is proposed that the scope be broadened, such that also minor violations of integrity form a basis for a special sanction. The committee also proposes a new rule in the chapter in the Mental Health Care Act on persons sentenced to special sanctions to the effect that they must not be subjected to restrictions on liberty and interventions other than those necessary for the treatment and safety of the convicted person, fellow patients and the community outside the institution. Moreover, arrangements must be made within these limits for the convicted person’s self-realisation.