ACCESS TO JUSTICE FOR PEOPLE WITH SEVERE COMMUNICATION IMPAIRMENT 2
Joan Dwyer (Senior Member, Commonwealth Administrative Appeals Tribunal)
People with a severe communication impairment, particularly those using facilitated communication, face difficulties in obtaining access to justice.
This article was first published in The Australian Journal of Administrative Law, February 1996, v.3, No. 2, pp. 73-119. DEAL is grateful to Ms Dwyer and to the Australian Journal of Administrative Law for giving permission to republish this material.
CHAPTER 2 - Anne McDonald
The first time a court accepted the validity of a communication made with facilitation was in the Supreme Court of Victoria in The Queen v The Health Commission of Victoria, George Lipton and Dennis McGinn, ex parte Anne McDonald (20) ("McDonald (1)"). Anne McDonald was born in country Victoria on 11 January 1961. She sustained brain damage at birth and, in consequence, suffered cerebral palsy with grave physical disabilities. She was placed in an institution known as St Nicholas Hospital when she was three years old. She lived there until 1979 when she was eighteen. She then wanted to leave in order to live with Rosemary Crossley who she had met in 1974 when Ms Crossley started working as a ward assistant at St Nicholas Hospital. The Health Commission refused this proposal. In Supreme Court Habeas Corpus proceedings Jenkinson J ordered that the respondents not hinder Ms McDonald's departure from St Nicholas Hospital.
Ms Crossley has described Ms McDonald from the time of their meeting, when she was aged thirteen:
"Anne [McDonald] had been living in a state institution since she was three, and was still the size of a threeyear old. She had no wheelchair and lay on the floor during the day. . . . When she was seated in a baby buggy (a larger version of a baby's stroller, and the only seating available) her head and shoulders retracted to the extent that she was at risk of suffocation. In order for her to look at anything placed in front of her it was necessary to flex her hips forcibly and bring her head forward. In order for her to point it was necessary to use my hand to internally rotate her arm and raise it from its retracted position behind her. With this support Anne pointed correctly to named objects, pictures and a few Blissymbols before going on to learn to read and spell."(21)
Ms McDonald has no speech. The issue in the proceedings before the Supreme Court was whether she had communicated her wish to leave St Nicholas Hospital and to live with Ms Crossley. The methods of communication used included facilitated communication and "Yes/No" responses. The proceedings were resisted by the Health Commission of Victoria and others. The respondents said that they declined to permit Ms Crossley to take the applicant from hospital to live with her because of a sense of moral responsibility for the welfare of Ms McDonald.
Ms Crossley claimed no authority to remove Ms McDonald from the hospital except Ms McDonald's request. She swore an affidavit explaining how she supported Ms McDonald's head and right arm to enable her to point to magnetised letters on an alphabet board thus spelling words and sentences which disclosed a normal intelligence.
His Honour summarised the respondents' case as follows:
"It was not suggested . . . that Miss Crossley had manipulated the applicant's movements to achieve the selection of letters with the conscious intention of deceiving any observer. I was invited rather to attribute the selection of the letters, which it was suggested that Miss Crossley and not the applicant had made, to the operation on Miss Crossley's mind of her strong emotional commitment to achieving communication with the applicant and a similar commitment to convincing the respondent and others that intelligent communication by the applicant is within the applicant's competence. . . . I think that I should take judicial notice that psychological mechanisms of that kind may lead a person in Miss Crossley's position into deluding herself and attempting to deceive others, without conscious recognition by that person of what she is doing."
The most significant evidence before Mr Justice Jenkinson which challenged the validity of Ms McDonald's communication, using facilitation by Ms Crossley, was that of Dr McGinn. He was a psychiatrist and paediatrician and had been Superintendent of St Nicholas Hospital throughout the fourteen years during which Ms McDonald had lived there. His evidence conflicted with that of Dr Graves, another paediatrician working at St Nicholas. They agreed that Ms McDonald suffered from athetosis, but Dr McGinn was of the opinion that she also suffered from bilateral hemiplegia. Both medical experts agreed that a person suffering from bilateral hemiplegia was very likely to be mentally retarded but that, if Ms McDonald did not suffer from that condition, the chance of her suffering mental retardation was much less. It was because Dr McGinn believed that Ms McDonald suffered bilateral hemiplegia and hence was severely mentally retarded, that he could not accept that the communication by spelling was her own. Thus it was important for Jenkinson J to consider the evidence as to whether or not Ms McDonald did suffer from bilateral hemiplegia.
Dr Graves said that in his opinion the dominant disability was athetosis, and thus it was unlikely that Ms McDonald's intellect would be severely affected. He explained that in athetosis, the damage is to the athetosis, or nuclei at the base of the cerebral hemisphere, and the usual situation is that the intellect is not impaired. He agreed with Counsel for the respondent that if a person is suffering from bilateral hemiplegia, basically from birth, "then the high probabilities are that the person is a mental defective". Dr Graves was crossexamined as to why he described Ms McDonald's problem as athetoid cerebral palsy rather than as spastic bilateral hemiplegia. He agreed that the signs of bilateral hemiplegia were bilateral impairment of the limbs, and dwarfing of the limbs and that Ms McDonald was then of a very small size. It was agreed that her size at the time of the hearing (when she was aged eighteen) was that of a child aged five but Dr Graves did not accept that she had dwarfing of the limbs.
He stated: "[S]he has the appearance of a girl of much younger age, and she is, in my opinion, quite well proportioned." (22)
It was his opinion that Ms McDonald was not suffering from dwarfing of the limbs, but simply from small stature due to malnutrition. He explained that athetosis leads to great difficulties with feeding which result in a failure to grow adequately. He acknowledged that he had not seen anybody as deficient in growth, for those reasons, as Ms McDonald.
Dr Graves has been proven by time to have been absolutely right. Now that Ms McDonald is a woman in her thirties, she is of normal size and does not suffer from dwarfing of the limbs.
Dr Graves also gave evidence that he had seen Ms McDonald giving "yes-no" signals by using her tongue and eyelids. He explained why he found those signals convincing:
"What makes it most convincing is the obvious effort that she is making to achieve control to get the message across. She obviously, when she is communicating, is trying very hard and it is her interest and awareness of what is going on that makes it convincing."(23)
Mr Justice Jenkinson preferred the evidence of Miss Crossley, supported as it was by that of Dr Graves and Mr Healey, a psychologist, to that of Dr McGinn. He said:
"While the possibility must be recognised that Miss Crossley is misleading observers into the mistaken belief that it is the mind of the applicant which finds expression in the selection of letters, either by reason of intentional deception on the part of Miss Crossley or in consequence of less reprehensible and more obscure psychological processes, that possibility cannot in my judgment be regarded as at all probable. Miss Crossley presents as an educated, intelligent woman of 33, against whose good character and mental health nothing is alleged. Her testimony is supported by the opinions of a consultant paediatrician and an experienced clinical psychologist that it is the applicant's mind which is expressed in the selection of the letters; and her testimony is supported also in several respects by the evidence of two social workers and a mathematician. On a consideration of the whole of the evidence and of the probabilities for and against a conclusion that the applicant is the person who selects the letters by which communication is made when the applicant's arm is supported by Miss Crossley, I am persuaded that it is the applicant who makes those communications." (24)
On 17 May 1979, the day on which His Honour ordered that the respondents not hinder the departure of Ms McDonald from St Nicholas Hospital, she left court with Ms Crossley and her partner, Mr Borthwick. She has lived with them ever since. From the time she left St Nicholas Hospital aged eighteen, she started to grow at an accelerated rate. She had grown to the size of a seven to eight year old by September 1979, when she was again before the Supreme Court (25), and she reached normal adult size in her mid twenties. She graduated in 1994 with the degree of Bachelor of Arts from Deakin University.
Very shortly after winning her first Supreme Court case and starting to live with Ms Crossley and Mr Borthwick, Ms McDonald had to cope with a further challenge to her capacity. Her affairs had for some time been in the control of the Public Trustee on the ground that she was an infirm person. The Public Trustee asked the Supreme Court to advise whether he should consent to Ms McDonald and Ms Crossley entering into a contract with Penguin Books as joint authors of a proposed book describing Ms McDonald's experiences in St Nicholas Hospital. The book eventually became Annie's Coming Out (26) and was made into an award winning film of that name.
Mr Justice Murphy delivered an unreported judgment in that matter on 25 September 1979 (27) ("McDonald (2)"). He had used powers under s.39(c) of the Public Trustee Act 1958 (Vic) to direct the Senior Master to personally examine Ms McDonald to satisfy himself whether she was of unsound mind or infirm, and to report back to the Court.
Senior Master Jacobs reported on 20 September 1979. He concluded:
"At the end of the inquiry I was completely satisfied that Miss McDonald is not mentally infirm."
The Senior Master reported that in the few months between May 1979 when Ms McDonald left St Nicholas Hospital and September 1979, she had grown from the size of a five year old to that of a seven to eight year old. In his reasons for concluding that Ms McDonald was not mentally infirm, Senior Master Jacobs referred first to his questioning of Ms Crossley and his observations of her. He made very positive findings about Ms Crossley, saying:
"Miss Crossley's demeanour throughout, and her answers under crossexamination, and to me, completely satisfied me that she is an honest person, with a sincere desire to help, rather than to exploit her protégée. Not only did I form that opinion of her, but also the opinion that she has a genuine dedication towards the goal of improving the lives of cerebral palsy victims in general, as well as that of Anne McDonald in particular. Her talents and abilities in that direction, are, I believe, very considerable. That is not to say that she is oblivious to the possibility that she may make a personal gain. She conceded that she may do so. But I am quite satisfied that if any such motive exists it is of a secondary nature, and that she has not set out to exploit Miss McDonald." (28)
The Senior Master reported to Murphy J that he had decided to conduct a simple experiment, namely to have Ms Crossley leave the room and to ask Ms McDonald a question in her absence. He described the procedure:
"On Miss Crossley's return, the alphabet board was set up and used with Miss Crossley supporting Miss McDonald's arm. The latter indicated her nonconcurrence with the making of the experiment by spelling out the words 'I don't like anyone suggesting that my communications are not mine', which had nothing to do with the question I had asked." (29)
On the next day the experiment was repeated with a similar result. In his reasons, Senior Master Jacobs explained that, on the third attempt he first spoke to Ms McDonald alone and advised her why it was considered necessary to make the experiment.(30) He continued:
"She indicated, by use of her tongue, that she understood what I was saying. At first, when the experiment began she was again reluctant to cooperate, and seemed in doubt as to whether she ought to do so. Eventually she slowly spelt out the first three letters of what looked likely to be a correct answer, and then would not go on. Finally, she completed the test with a sufficiently correct answer to satisfy everyone that the answer had to be her own answer and not that of Miss Crossley, who could not have known what it was." (31)
The Senior Master had asked Ms McDonald to spell two words, namely "string" and then "quince". She spelt "string" and "quit" but that was enough for the court. (32) The substitution of "quit" for "quince", it is suggested, revealed Ms McDonald's attitude to the testing and her intelligence.
Senior Master Jacobs' sensible and appropriate strategy of advising Ms McDonald, after two failed attempts, why it was necessary to make the experiment, was crucial to the success of his experiment. In so doing, he was telling Ms McDonald that he recognised her as an intelligent person, and that he recognised the emotional problems she was facing in complying with a request, which she considered demeaning. He also pointed out to her the effect her attitude had on Ms Crossley's reputation. Had he not been so persistent and perceptive, his testing would have recorded a failure to communicate and thus reinforced the misconceptions that Ms McDonald was severely retarded and that Ms Crossley was a cheat. Ms McDonald has since explained her attitude to testing around that time of her life: "It was foolish but not being sleek and fat I had only my pride to live for." (33)
On the basis of Senior Master Jacobs' report, Murphy J ordered the Public Trustee to sign and seal a certificate to the effect that Ms McDonald had ceased to be an infirm person for the purposes of the Public Trustee Act 1958. The main thrust of Dr McGinn's evidence in McDonald (1) was contrary to the interests of Ms McDonald, and was not accepted by Mr Justice Jenkinson. It has since been shown to have been based on an incorrect opinion that Ms McDonald suffered from dwarfism, which is a sign of bilateral hemiplegia. However there is one part of his evidence which is correct and should be borne in mind throughout this paper. He was asked whether the usually accepted method of ascertaining mental retardation is by psychological assessment of the individual concerned. He replied: "That depends on the degree of development that the person has. It is impossible to psychologically assess people who have no form of communication." (34) (emphasis added)
That is a very important passage and something which it is unfortunate that psychologists have subsequently often overlooked. If a person cannot reliably communicate without facilitated communication, and if communication with facilitation is not accepted in psychological assessments, then it is impossible to psychologically assess that person.