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Silent Witnesses: AAC and legal capacity

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Court cases involving people actually using communication aids are rare, and protocols to govern their use are generally absent. While many jurisdictions have a standard protocol for the employment of sign language interpreters, there is no such standard for the use of AAC -- partly because the discipline is relatively new, and partly because AAC takes many forms.
This lack of standards leaves far too much depending on the opinions of individual judges, who are unlikely to have any understanding of the field and may share common and longstanding societal prejudices against people without speech.
Within the past few years, for example, two judges in two criminal jury trials in two different jurisdictions made diametrically opposite findings about the use of low-tech eye-gaze for people with minimal speech.
In each case the potential witness was an adult male diagnosed as having cerebral palsy with athetoid movements. In the first case the witness was permitted to use an E-tran eyepointing board with word completion protocols; in the second the court refused to entertain any use of eye-gaze, on the ground that it was subjective.
Expert witnesses can be called to explicate AAC methods, but contested hearings are unlikely to clarify any existing confusion in the minds of the officials concerned. Hard cases make bad law, and lawyers are not the obvious choice to lay down what is best practice in AAC.
ISAAC should lend its resources to the development of a legal best practice position statement.

Author(s):

Rosemary Crossley    
Anne McDonald Centre
Australia

Chris Borthwick    
Anne McDonald Centre
Australia

 

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