ACCESS TO JUSTICE FOR PEOPLE WITH SEVERE COMMUNICATION IMPAIRMENT

Joan Dwyer (Senior Member, Commonwealth Administrative Appeals Tribunal)

Abstract

People with a severe communication impairment, particularly those using facilitated communication, face difficulties in obtaining access to justice. Those difficulties are accentuated by the inexperience of courts and tribunals in conducting a hearing involving a person with a major communication impairment. The author explains the technique of facilitated communication and studies in detail all the Australian instances, and some international cases, where its use has been in issue before a court or tribunal. The article points to instances where a failure to disclose important relevant evidence or an inappropriate method of testing has led a court, tribunal or public office holder to find that a communication made by an individual using facilitation was not a valid communication. The author argues that those decisions were wrong and have deprived individuals of their basic rights. In contrast, the article considers one research project in Australia and two cases, one from the United States and the other from New Zealand, where the validity of communication first made with facilitation was supported by later corroborating evidence and was accepted by the courts. In conclusion the article suggests various measures to ensure that in Australia access to justice becomes a reality for persons with severe communication impairment.

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 1 - Introduction

The focus of this paper (1) is on people with a particular disability, severe communication impairment, and the difficulty they face in having their voices heard by the courts. Their severe communication impairment often results in them being wrongly diagnosed as having severe intellectual disabilities; this compounds their problems in being recognised as competent witnesses and may mean that they are denied access to justice. The difficulties which face people with intellectual disabilities were referred to by Mason CJ, Dawson, Toohey and Gaudron JJ of the High Court of Australia in Secretary, Department of Health and Community Services v JWB and SMB (1991-2) 175 CLR 218 at pp238-9:

"It may also be said, in this context, that not only are there widely varying kinds and consequences of intellectual disability but such handicaps, possibly more so than other forms of disability, are often surrounded by misconceptions on the part of others in society, misconceptions often involving an underestimation of a person's ability."

It is those misconceptions which can be so frustrating for people with severe communication impairment and which have led to a great deal of controversy. The aim of this paper is to clarify the problems and remove some of the misconceptions. After all, as those with communication impairment would have us remember: "Not being able to speak is not the same thing as not having anything to say."

The experience of being unable to speak independently was described with humour by the writer and cartoonist Les Tanner in the "The Age" of 27 April 1995:

"It was like a scene from Woody Allen's Bullets Over Broadway. There I was, coffee cup in one hand, apple slice in the other, when she slid up alongside me. 'Do you take milk or sugar?' she beamed. With both hands full, I couldn't reach the speaking aid dangling around my neck. 'Don't try to speak,' she begged, 'just nod your head.' I can't speak without my speech aid, having lost my larynx to cancer, but I need a free hand to activate it - make it buzz, so I can mouth the words when it's pressed against my throat - so I nodded and she poured the milk. 'Say when! Oh, I forgot, you can't speak. Just nod again when it's enough.' I nodded again, feeling like Roy Rogers's wonder horse Trigger - you know, 'paw your hoof once for yes, twice for no . . .' The apple slice was beginning to ooze sideways. Sticky bits of diced canned apple plopped down my sleeve in gummy gobbets. 'One sugar or two? No. No, don't speak, just nod!' How in the name of God can you nod a number, I wondered, there being no room to use my hoof."

All too often the first time a Judge thinks about the problems of conducting a hearing, where the applicant or an important witness has a major communication disability, is when that case comes on in a court or tribunal. This inexperience and lack of forethought is often quite obvious and may in fact prejudice the hearing from the very early stages.(2) Some courts and authors are beginning to recognise how flexibility must be introduced in some of our established legal procedures if we are to meet the needs of the young or the mentally disabled.(3) It is the contention of this paper that unless similar adjustments are made for those with severe communication disabilities, our legal system will in effect continue to deny such people access to justice. Fortunately we do have some examples of successful adjustments. (4)

It is rare to have a court case in which a deaf person uses sign language to communicate, but such a means of communication is certainly recognised by the courts. (5) Similarly, courts are beginning to be aware of steps which can be taken to assist people with less severe hearing impairments, for instance, the installation of a hearing loop in a hearing room. But the legal system is only just beginning to grapple with the task of developing new judicial processes for those who require novel techniques to enable them to communicate at all, and in particular in a court or during a legal hearing.

These people present great challenges to the legal process and also to health professionals with whom they come in contact. Many of them have been diagnosed and treated as if they were intellectually impaired and yet, with the use of facilitated communication, some can demonstrate that their intellectual functioning is not impaired, even though their physical ability to demonstrate their intellectual functioning is very limited. Even if that possibility is accepted by an openminded judge or doctor, further problems arise before it will be accepted that the communication being facilitated is in fact the communication of the disabled person. Sometimes a judge, such as Mr Justice Jenkinson in the Supreme Court matter of The Queen and the Health Commission of Victoria, George Lipton and Dennis McGinn, ex parte Anne McDonald (6), is prepared to decide the matter, as courts and judges usually do, on common sense and the credibility of the witnesses giving evidence before him. On other occasions, as in the second McDonald case, in the testing by Senior Master Jacobs (7), and in Luz P (8) and Warden (9), a decisionmaker, if he or she can obtain the confidence of a person with severe communication impairment, may be able to devise a test which proves the authenticity of some communication by facilitated communication. The decisionmaker, being satisfied as to the integrity of the method, can then accept the person's further communication by that method.

On other occasions further hurdles are placed in the path of the person with a severe communication impairment. Maybe complicated tests are devised and the person refuses or is unable to cooperate. Sometimes comments are made such as "Why won't they cooperate? Can't they understand how important it is for their own case?" (10) Unfortunately many people with severe disabilities cannot process their body to cooperate even if they want to and have the physical ability to do so.(11)

This paper considers the major cases where the validity of has been an issue in hearings or inquiries. It shows that facilitated communication is a genuine method of communication and must be recognised. It explains that the decision in Wallace v Health Commission of Victoria (12) was the result of a failure by the respondent to disclose crucial evidence which severely undermined its case. The Intellectual Disability Review Panel Report (13) is widely regarded as showing that facilitated communication is not a genuine method of communication. A study of the data set out in the report demonstrates that four out of six subjects validated their communication and that the results in the other two cases were ambiguous because of technological defects with the test design. The reasons why such "controlled experiment" testing is usually inappropriate for use with the people whose abilities it is designed to test are discussed. The decision of the Guardianship and Administration Board in In the Matter of "Carla" (14) and two reports of the Ombudsman (15) are analysed and shown to be flawed and unreliable.

The Queensland Report on Facilitated Communication (16) is very significant. It shows a high rate of validated responses. Some clients passed important messages concerning their own welfare. On the international scene two recent cases - one in New Zealand (17) and an Appellate Court decision in the United States of America (18) have recognised the validity of facilitated communication. In both cases a client conveyed information about sexual abuse using facilitated communication, and that message was subsequently confirmed by other evidence. Medical examination under general anaesthetic provided evidence of repeated acts of penetration of a thirteen year old girl in New Zealand, and in the United States the accused care giver made a partial confession. It is hoped that the analysis in this paper will demonstrate how important it is that people with severe communication impairment be enabled to use facilitated communication to access the system of justice in their community.

As a first step, it is helpful to have an authoritative description of facilitated communication. Although many people with severe communication impairment can be taught a reliable "yes/no" response, such as nodding, blinking or using the tongue, it is very difficult to find a means of more elaborate communication for people who lack speech and have severely impaired motor skills. A person limited to "yes/no" responses cannot originate any conversational idea. Rosemary Crossley, in her book Facilitated Communication Training (19), wrote:

"To facilitate is to make easier. In facilitated communication training the task of using a communication aid is made easier for a student with a severe communication impairment. The degree of facilitation needed varies from person to person, ranging from an encouraging hand on the shoulder to boost confidence, to full support and shaping of a student's hand to enable isolation and extension of an index finger for pointing. Facilitation differs from other handson training methods such as coactive movement and graduated guidance. . . . in facilitated communication you are setting up a situation that will allow the student's own movement to be functional. It is vital that the choices made be those of the aid user."

In the New Zealand case of Laumalili which is discussed later in this paper, Judge Frater gave the following account of facilitated communication at pp 414-5:

"Although originally many autistic people were diagnosed as severely intellectually disabled, it is now recognised that such people fall within the whole range of intelligence. A recent development which has assisted autistic people to communicate and thereby display their true intellectual potential is the technique known as 'facilitated communication'. This is a process whereby people with disabilities (such as stroke victims, head trauma patients, people with Downs Syndrome and those who are autistic) are assisted or 'facilitated' to point to or press letters on a keyboard to form words. The facilitator holds the person's hand, wrist or arm to steady it. They are not supposed to direct the operator's finger; their function is to steady the person's hand. It is said that their only positive action is to draw back the finger if they consider the operator is dithering."

Chapter Two