Accessibility
‘Accessibility’ is a term that is commonly used in everyday speech – eg the term ‘accessible toilets’. It is often associated with a physical environment that can be accessed by people with physical disabilities. However, it reaches beyond the physical environment and also applies to other areas of life. For instance, it applies to equipment and ICT, to written materials (which will not be accessible to blind people if they are in print or to people with intellectual disabilities if they are written in complex language) and to communications (which will eg not be accessible to deaf people if they are in spoken format).
Basis in Human Rights Standards
(a) Relevant Provisions of the UN Convention on the Rights of Persons with Disabilities.
Accessibility is a general principle which underpins the UN Convention on the Rights of Persons with Disabilities. It is set out in Article 3.
In addition, the right to accessibility was recognised, for the first time in a human rights treaty, in Article 9 of the UN Convention on the Rights of Persons with Disabilities (CRPD). This is a lengthy Article, which opens with the following words:
“to enable persons with disabilities to live independently and participate fully in all aspects
of life, States parties shall take appropriate measures to ensure to persons with disabilities access, on an equal basis with others, to the physical environment, to transportation, to information and communication, including information and communication technologies and systems, and to other facilities and services open or provided to the public, both in urban and in rural areas”.
Guidance on this innovative Article is provided by the UN Committee on the Rights of Persons with Disabilities in its General Comment No 2 (2014).
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(b) General Comment No 2
According to paragraph 13 of this document,
“Accessibility should be provided to all persons with disabilities, regardless of the type of impairment, without distinction of any kind, such as race, colour, sex, language, religion, … gender or age” and should “should especially take into account the gender and age perspectives for persons with disabilities.”
General Comment No 2 makes it clear that different considerations apply to the accessibility of existing goods and infrastructure from those applying to the accessibility of new goods and infrastructure. According to paragraph 14:
“Barriers to access to existing objects, facilities, goods and services aimed at or open to the public shall be removed gradually in a systematic and, more importantly, continuously monitored manner, with the aim of achieving full accessibility.”
By contrast, steps must be taken to ensure that new ones are accessible from the outset.
There is an overlap between the obligation not to discriminate and the obligation to ensure accessibility. Lack of accessibility will sometimes, but not always, constitute discrimination contrary to Article 5 of the CRPD.
There is a tendency to conflate ‘reasonable accommodation’ and ‘accessibility’. In fact, however, they are different obligations. Reasonable accommodation is a duty to make adjustments in order to remove the disadvantage experienced by one particular individual whereas accessibility is a duty to ensure that communication, information, the built environment etc are designed in such a way as to make them accessible to disabled people more generally.
Relevance to Children with Mental Disabilities in Judicial Proceedings
Accessibility has more obvious relevance to people with intellectual disabilities (including children and young people) than to people with psychosocial disabilities. In particular, it is relevant to information and communication – both of which are extremely important issues in the context of the justice system. The following extracts from General Comment No 2 acknowledge this:
“Without access to information and communication, enjoyment of freedom of thought and expression and many other basic rights and freedoms for persons with disabilities may be seriously undermined and restricted. Article 9, paragraph 2 (f) to (g), of the Convention therefore provide that States parties should promote live assistance and intermediaries, …, promote other appropriate forms of assistance and support to persons with disabilities to ensure their access to information, and promote access for persons with disabilities to new information and communications technologies and systems, including the Internet, through the application of mandatory accessibility standards. Information and communication should be available in easy-to-read formats and augmentative and alternative modes and methods to persons with disabilities who use such formats, modes and methods.” (para 21)
“There can be no effective access to justice if … the services, information and communication they provide are not accessible to persons with disabilities (art. 13). Safe houses, support services and procedures must all be accessible in order to provide effective and meaningful protection from violence, abuse and exploitation to persons with disabilities, especially women and children.” (art. 16)
Skills
Accessible information and communication for children with intellectual disabilities will entail providing information in easy-read format and the use of aids – such as pictures and models. Justice organisations should plan in advance and ensure that relevant materials are available so that they can be readily used by staff.
In addition, professionals working in the justice system who might be expected to have to communicate with or provide information to children with mental disabilities must be familiar with the assistive devices and alternative formats and know how and when to use them. This requires training.