A/HRC/43/41/Add.3
precedence in case of conflict with other legislative provisions. This lack of incorporation
weakens the weight given to the Convention in areas of law where it conflicts with
Norwegian law, as illustrated below.
17.
While recognizing the country’s strong, comprehensive legal framework and past
efforts to bring domestic law into line with the Convention in accordance with its article 4,
it has yet to complete the process of legal harmonization. That process requires, for
example, that existing laws, regulations and practices that may discriminate against persons
with disabilities are amended or abolished. The Special Rapporteur notes instances where
laws contain provisions that are nor compliant with the Convention. For example, legal
provisions that are framed under the medical model of disability and establish restrictions to
the full enjoyment of legal capacity of persons with disabilities, including those with
intellectual and psychosocial disabilities, diverge from article 12 of the Convention, which
recognizes the full legal capacity of persons with disabilities. Examples include provisions
in the Dispute Act (for example, sections 2 and 24), the Penal Code (section 44), the
Guardianship Act (sections 4, 22 and 33), the Patients’ and Users’ Rights Act (chapter 4),
the Mental Health Care Act (sections 3 and 4). These laws also use pejorative language
when referring to disability or persons with disabilities, such as “seriously mentally ill and
mentally handicapped witnesses” (for example, the Dispute Act, section 24-11), “severely
mentally disabled” and “insanity” (the Penal Code, sections 20 and 44 and the Inheritance
Act, sections 52 and 62).
18.
The Special Rapporteur is equally concerned about legal provisions that allow for
the deprivation of liberty, compulsory treatment and/or the use of coercion on the basis of
disability, contrary to articles 14 and 17 of the Convention. Examples include the Penal
Code, the Mental Health Care Act, the Health and Care Service Act and the Patients’ and
Users’ Rights Act, which are further discussed in section III below.
19.
The Special Rapporteur is alarmed by the provisions of the Termination of
Pregnancy Act stating that women with “serious mental illness” or intellectual disabilities
can be subjected to abortion without their free and informed consent. Furthermore, the
Sterilization Act allows the next of kin or guardian of a person with severe intellectual or
psychosocial disabilities to apply for a sterilization procedure in cases where the person is
“despite support, unable to understand the nature and consequences of sterilization”. The
Sterilization Tribunal then decides “whether sterilization is the best way to prevent a future
pregnancy because the person concerned is incapable of looking after the child”.
20.
At the policy level, not all public policies, including disability-specific ones, include
a human rights-based approach to disability. For instance, the definition of disability in the
strategy “A society for all” is not framed from a human rights perspective, but rather a
medical one. Discussions on persons with disabilities are often framed in terms of care and
social assistance, and the notion of substantive equality introduced by the Convention is not
well known. In order to ensure a systemic transformation of society, the human rights-based
approach to disability needs to be strengthened, including by providing guidance and
support to counties and municipalities to strengthen capacities and skills to implement
policies that are inclusive of the rights of persons with disabilities.
III. Challenges and opportunities identified in Norway
A.
Data collection
21.
At the request of the Norwegian Directorate for Children, Youth and Family Affairs,
Statistics Norway prepares annually a set of approximately 70 indicators on living
conditions for persons with disabilities. The indicators cover various aspects of life, such as
family, health, participation, housing, education, employment and economic status, for
persons with disabilities aged between 20 and 66 living in private homes. However, there is
no official data available on children and youth with disabilities below 20 years of age, or
on persons with disabilities aged over 67. Furthermore, as domestic legislation sets strict
limits on the collection and distribution of personal data, there are challenges in the use of
existing sociodemographic data and its disaggregation by disability. These limitations
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