Assistive technology as support for the exercise of legal capacity

Abstract

Exercising legal capacity refers to engaging in legal transactions and relationships and is essential for the full inclusion of people with disabilities in society. The United Nations Convention on the Rights of Persons with Disabilities has enumerated the right to legal capacity on an equal basis and has created a state obligation to provide access to support for the exercise of legal capacity. This article examines the use of assistive devices as support for decision-making in exercising legal capacity for individuals with physical and cognitive impairments; for example, the use of voice recognition programmes, screen readers, and screen enlargement applications to support people with mobility and sensory impairments to use online portals essential for legal actions such as banking. It also discusses the experimental use of cognitive assistance, including computer or electrical assistive devices, to facilitate communication for people with cognitive impairments including those with no external signs of consciousness. It highlights the diversity of options for ‘support for the exercise of legal capacity’ showing how they can assist people with various disabilities. Finally, the article examines the boundaries of the state obligation to provide such support, including issues of practical implementation and resource allocation.

Keywords:

• legal capacity
• assistive technology
• supported decision-making
• United Nations Convention on the Rights of Persons with Disabilities

Conflict of interest disclosure

No potential conflict of interest was reported by the authors.

Notes

1. United Nations Convention on the Rights of Persons with Disabilities (UNCRPD), Article 12, 2515 UNTS. 3 (13 December 2006).

2. See for example, United Nations Economic and Social Council, Commission on Human Rights, Drafting Committee on an International Bill of Human Rights, First Session Report, UN Doc. E/CN.4/21, p. 43 (1 July 1947). See also United Nations Economic and Social Council, Commission on Human Rights, Draft of a Resolution for the General Assembly Submitted by the Representative of India, UN Doc. E/CN.4/11 (31 January 1947).

3. See for example, Report of the Commission on Human Rights, Sixth session, held from 27 March to 19 May 1950 (E/1681 and Corr. 1 and Add. 1, 29 May 1950).

4. Convention on the Elimination of All Forms of Discrimination Against Women, G.A. Res. 34/180, UN Doc. A/34/46 (Dec. 18, 1979) (entered into force 3 September 1981), Article 15.

5. Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987). Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990). International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, Adopted by G.A. res. 45/158 (entered into force 18 December 199).

6. See UN Econ. & Soc. Council [ECOSOC]. (2005).

7. Asia Pacific Regional EGM (n.d.).

8. For a theoretical discussion of the power of human rights instruments, see Appiah (2001).

9. Anna Arstein-Kerslake and Eilinóir Flynn provided the UNCRPD Committee with support for the drafting of the general comment on Article 12.

10. See for example Dragon Naturally Speaking 2.5 (software). http://www.nuance.com/support/dragon-naturallyspeaking/index.htm (accessed 15 April 2015).

11. Ibid.

12. See http://espeak.sourceforge.net/ (accessed 15 April 2015) and http://www.cstr.ed.ac.uk/projects/festival/ (accessed 15 April 2015).

13. The NVDA screen reader for example, is a widely used open source software platform for screen reading. See http://www.nvaccess.org/ (accessed 15 April 2015).

14. See http://www.humanware.com/ (accessed 15 April 2015).

15. See http://www.kapsys.com/modules/movie/scenes/content/index.php?fuseAction=learnuse&rubric=learnuse&article=products_kapten&FUSEBOX_LANG=2 (accessed 2September 2014).

16. See http://www.accessamed.com (accessed 15 April 2015).

17. Http://www.assistiveware.com/product/proloquo2go (accessed 15 April 2015).

18. http://autismxpress.com (accessed 15 April 2015).

19. Ibid.

20. See http://www.advocacyforinclusion.org/index.php/blog/entry/supported-decision-making-app-crowdfunding-campaign (accessed 15 April 2015)

21. Communication from the Commission to the European Parliament, the Council, the European Economic Social Committee and the Committee of the Regions, ‘European Disability Strategy 2010–2020: A Renewed Commitment to a Barrier-Free Europe’. Brussels, of 15 November 2010. COM(2010) 636 final.

22. See http://safesurfing.eu/ (accessed 15 April 2015).

23. In Finland, for example, the Judicial Procedure Act Chapter 17 Section 34a sets out the potential to use a video conference or other appropriate technical means of communication to assist people with intellectual disabilities (and others) to provide direct testimony. Judicial Procedure Act Chapter 17 Section 34a (Finland).

24. For example, in Australia, there has been a focus on the wishes of the individual, even under ‘best interest’ decision-making regimes. They have successfully completed a number of pilot projects on supported decision-making. For information on the pilot project in South Australia, see Wallace (November 2012).

25. For example, the United States Department of Justice has a mandate to ensure the fair and impartial administration of justice for all Americans. It does so through the active use of litigation. See the Act to Establish the Department of Justice, ch. 150, 16 Stat. 162 (1870).

26. For example, see Wilkinson and Marmot (2003).