ACCESS TO JUSTICE FOR PEOPLE WITH SEVERE COMMUNICATION IMPAIRMENT - 3
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 3 - Angela Wallace
Unfortunately the next person to use facilitated communication to express a wish to leave St Nicholas Hospital was less successful. We might ask why, when both Jenkinson J and Senior Master Jacobs had made favourable comments about Ms Crossley, and had recognised the validity of Ms McDonald's communication using an alphabet board facilitated by Ms Crossley, the same respondent, the Health Commission of Victoria, challenged the validity of Ms Wallace's communication by the same method. The answer may lie in the report of the Eisen Committee (35) as to which more will be said later.
Because no alternative home had been arranged for Ms Wallace, the validity of her communication was tested not by a writ of habeas corpus returnable before the Supreme Court, seeking an order that she be allowed to leave St Nicholas Hospital (as in Ms McDonald's case), but before the County Court as a request under Freedom of Information legislation for access to her files, in Wallace v Health Commission of Victoria ("Wallace"). Ms Wallace hoped to persuade her carers and her family of the genuineness of her communication, so that she could participate in the making of decisions regarding her future accommodation.
At the time of the hearing of her case, Ms Wallace was twentyone years old. She, too, had suffered from cerebral palsy since birth and had lived at St Nicholas Hospital for fifteen years, since she was six years old. The question before the Court was whether, under the Freedom of Information Act 1982 (Vic), the Health Commission was correct in refusing to respond to a request in writing "from the applicant" (made by signing her mark to the application) for access to all documents held concerning her.
Numerous medical witnesses who had seen Ms Wallace over the years gave evidence that they regarded her as mentally retarded and, in spite of attempts of varying duration, had never succeeded in establishing any method of communication with her in which she showed "consistent responses".
Mr Henkel, a teacher who had, over an eight or nine month period, attempted without apparent success to teach Ms Wallace basic numeracy skills, gave evidence that he achieved no demonstrated ability to recognise the numbers one to five. In crossexamination he said that two teachers' aides had told him that they had taught Ms Wallace arithmetic and division and multiplication but he said that "when he wanted a demonstration of her ability to do these things he did not get it".(37) The teachers' aides were not called as witnesses.
For the Judge the most significant evidence was that of a psychiatrist, Dr Eisen. The judgment dealt with the evidence of Dr Eisen as follows:
"Dr. Eisen gave evidence of an enquiry of which he had been appointed Chairman, following Court proceedings brought on behalf of one Anne MacDonald [being the proceedings before Mr. Justice Jenkinson already referred to] and he, Dr. Eisen stated that the purpose of the enquiry was to determine the intellectual functioning of Angela, amongst others, and in due course a report of this committee of enquiry was produced. . . . Dr. Eisen is a highly qualified consultant psychiatrist being, among other things, a consultant to the World Health Organization in Geneva, responsible for the development of health services for young children. . . . It was his opinion that the Appellant had no intellectual function above that of a child of about two and a half years and probably considerably less. He thought that she would have no capacity to make an application under the Freedom of Information Act, even if it were explained to her, and she would have no capacity to understand the nature of the application. There were 11 children investigated [by the enquiry]. The conclusion in relation to the Appellant was that she showed no evidence of a level of intellectual functioning beyond that to be expected of children of two and a half to three years of age, and probably considerably less. The summary of the major findings of the committee was referred to in part of the report on page 6 thereof. The finding was made that there was no valid evidence to support claims that the children, as they were so described, including the Appellant, could communicate by the use of an alphabet board, and Miss Crossley's claims that the children were capable of understanding and communicating highly sophisticated concepts were, in the opinion of the committee, false. It was further stated that no child (which included the present Appellant) showed any evidence of even the most elementary level of literacy or numeracy." (emphasis added)
When Dr Eisen was asked in crossexamination to produce his notes of the Eisen Committee, he produced a note of a testing session on 13 July 1979 and said he had no others available. (39) He said the remainder had been destroyed. (40) Neither the Minutes nor any further notes were produced.
After Judge Gorman delivered judgment, the Minutes and supporting notes were obtained under the Freedom of Information Act. Some were released without a hearing, others only after proceedings in the Administrative Appeals Tribunal of Victoria.(41) They contradict Dr Eisen's evidence in the following respects:
1. Dr Eisen's notes had not all been destroyed - some of them and other notes of the Committee were still within the files of the Health Commission;
2. it was not true that no "child" seen by the Eisen committee showed any evidence of even the most elementary level of literacy or numeracy;
(i) The Secretary's notes of a Committee Meeting on 6 July 1979 refer to a testing session on 6 July 1979. They state:
"Mr Mc [McCully] told story - Isaac Newton and dog destroyed notes - while RC [Ms Crossley] out of room. RC returned and Mr Mc told story next time RC went out. Showed word not name of dog. [Leonie] spelt out NEW. Then spelt out DIA for name of dog. RC had no clue about story."(42)
[Those notes refer to a session which Mr McCully and Mrs Wilkinson had with Leonie. While Ms Crossley was out of the room Leonie was told a story about Isaac Newton and how his dog, Diamond, tore up some important papers. Later, with Ms Crossley's assistance, Leonie was asked to spell out the name of the person the story had been about. After she had spelt out NEW Mr McCully told Ms Crossley the name was Newton. Mrs Wilkinson asked Leonie to spell out the name of Newton's dog. Leonie spelt DIA and Mrs Wilkinson told Ms Crossley the name was Diamond.] (43)
(ii) The Minutes of 13 July 1979 contain the following passages:
"Mr. McCully and Mrs. Wilkinson tested a number of the children last Friday. [Leonie] answered some questions quite successfully without arm support but was not so successful with simple mathematics. They saw [Phillip] work with Rosemary Crossley. [Phillip] competent with fractions; [Noelene] can handle sums and doesn't need her arm supported all the time. The Committee spoke to Mrs. Margaret Batt, and Mrs. Wilkinson and Mr. McCully watched a demonstration of her communication with [Mark] One answer took half an hour to finish but he apparently touched the letters without mistake. Mr. McCully wasn't convinced as his arm could have been influenced by the way it was held. Mrs. Wilkinson considered that his eye moved to the letter before his hand did and if his body and head were in a more rigid position he may have done better. ["done better" has been crossed out and instead the sentence now ends "achieved a more authentic result" in handwriting.] Her opinion is that all the children will now have to be assessed." (emphasis added)
3. the Minutes and notes supported the evidence of Ms Crossley and other witnesses for Ms Wallace that she was not severely retarded, and functioned "beyond [the level] to be expected of two and a half to three years of age" and had demonstrable literacy skills.
The Secretary's notes of a Committee Meeting on 6 July 1979 refer to a testing session on 4 July 1979. At that session Angela Wallace was tested. The notes state:
"Mr Mc chose 4 numbers 4 38 17 26
Ms W wrote 4 nos in order questions to be asked (mathematical)
RC asked questions.
Maths
Gen Knowledge
[Angela] chose India Iron Oxygen Violin
[Angela] got a number right and some wrong.
comm board - spell mineral - pointed to IRO"
Ms Crossley's diary note for that day recalls:
"Firstly I asked Mr. McC to write down any 4 numbers in the circles that I'd drawn. 'Below 10?' he asked & I said no, anything would do & he said 'like Tattslotto?' & I said yes. The numbers were, as closely as I can remember them, 46 17 26 4 [It may be that the first number was 38 not 46.] I asked Mrs. W to nominate, without saying it aloud, the order she'd like to see them pointed to in - 17, 26, 46 [or 38], & 4 I think. Then I had to make up questions to fit each answer. Started with Angela W who loves maths; point to the one which is Odd number/ 2 x 13 /50-4 [or 40 - 2]/ 2squared /prime number - Extra question mentioned before 2squared so answer not obvious. I wrote down a list of words covering as many areas as possible & Mr. McC chose 4 & wrote them in the circles: Oxygen Violin Iron India & Mrs. W nominated order for pointing. We did not of course say the words. Q's - which is country gas musical instrument metal First 2 fine then Angela's pointing seemed to go. For 3 she kept hitting Oxygen on border but lightly, not definitely as she'd done before (one thing about Angela that Mrs. W. noticed is the way where if you query her pointing & ask her to do it again & she does it & hits the right one fair & square she makes a definite pleased noise & tries to push her hand through the board). We went on to 4 & the same thing happened. I couldn't work out what was wrong - I was sure Angela knew the answers & her wrong answers were casting doubt on the 2 she'd got right - so I got the alphabet board to see if she could do any better on that. She was V. pleased. I asked her for 1st letter of musical instrument 'v', 1st letter of metal 'i' 2nd letter 'r', 3rd letter 'o', letter after iro 'n' - all completely clear, no doubt, no second point required. To make sure I asked for 1st letter of gas - she landed between 'r' & 'o' & I left it at that." (44)
The Minutes and Secretary's notes show that the report misrepresented what was actually found by the Eisen Committee in its sessions working with the "children". Had the Committee's notes been produced at the hearing, Dr Eisen's evidence would, as Judge Gorman acknowledged, (45) have been discredited. The Court was misled as to the existence of this vital evidence which could well have avoided the tragic result for Angela Wallace.
In the light of that knowledge of the Minutes and notes of the Eisen Committee, one of the saddest aspects of the hearing before Judge Gorman was the evidence of Mrs Threlfall, the elder sister of Ms Wallace. She said that she had been convinced that Ms Wallace could communicate until the Eisen Committee published its findings. (46)
Evidence for Ms Wallace was given by two psychologists, Mr Healey and Mrs Searby, who said they had tested her and found her to have above average intellectual capacity. Some of their testing was done without facilitation. Judge Gorman rejected their evidence simply because he found it "quite incredible". If he had known what had occurred in the testing sessions conducted by the Eisen Committee, he would have had no reason to find their evidence "quite incredible". (47)
The judge accepted the analysis of Counsel for the Health Commission that the case became a case of Ms Crossley versus the Eisen Committee. Ms Crossley was crossexamined on the basis that she "had a vital interest in the outcome of this Appeal". There was no suggestion that she had any financial interest; it was put rather that she wanted to show that she was right and the report of the Eisen Committee was wrong. A
s already stated, the Minutes of the Eisen Committee show that in fact she was right and the report was wrong. A further vice of the analysis accepted by the Judge is the assumption that there is anything wrong with a caring teacher or friend, knowing that a person with a disability can communicate, helping her to have her communication accepted as genuine, so that she can have a say in how and where she will live. Otherwise the disabled person suffers a denial of her basic human right to express her views. (48) Judge Gorman seemed unable to recognise this. It was recognised in the McDonald cases and in Laumalili and Warden which are considered later in this paper.
It is apparent that Judge Gorman had difficulty grasping the issues he was to decide and had no understanding of the restrictions caused by severe physical disabilities, or of the emotional problems such disabilities can cause. Some revealing examples of these problems are on transcript; others were made in exchanges with Ms Wallace's Counsel which were not transcribed. (49) Those on transcript include the following:
(i) Mr Gillard QC in his opening stated:
"There will be medical practitioners, psychologists, teachers, who will give evidence that in their opinion this young woman does not have sufficient mental capacity to make an application under this Act, and that even if the information were made available to her she would not be able to understand it."
Judge Gorman interrupted the opening to ask Counsel for Ms Wallace:
"Is that view contested, Mr Wood - the first aspect of it?"
Mr Wood, not surprisingly, added "Yes, it is, Your Honour", to which Judge Gorman asked "What is it you are saying?" Mr Wood explained:
"Quite to the contrary, Your Honour. We say that Angela Wallace has sufficient intellectual capacity to form her own request." (50)
(ii) Judge Gorman interrupted some discussion as to the relevance of certain evidence as to whether or not Ms Wallace was believed to be able to read, asking the witness:
"Could there be an easy way to find out if a person was reading by asking them to read you something? Have you ever heard Angela read anything?" (51)
Judge Gorman seemed to think that all intelligent people, no matter how physically disabled, look intelligent and alert. In his judgment he stated:
"The Appellant was present in the Court for about a day and a half or so and, on the face of it, in addition to her being gravely disabled she appeared intellectually and mentally quite unaware of her surroundings. It was requested by her counsel that she be allowed to remain in the Court room and that was done. However, she evinced no interest in what was happening that was observable to me and I had myself noticed, as Mr. Gillard pointed out, in his final address, that in the afternoon of the day she was in Court she appeared to be, and indeed to my observation was, asleep for the greater part of the proceedings. I thought the evidence from both Mr. Healey and Mrs. Searby attesting to the high intellectual calibre and capacity of the Appellant as a result of the tests that they gave her was quite incredible." (emphasis added)
What His Honour did not state was that at one stage he had ordered that Ms Wallace be removed from the Court room, not for any misconduct, but because her breathing was noisy. He had only allowed her to remain when her Counsel pressed on him that it is the right of an applicant to be present during the hearing of her case and that Ms Wallace should be accorded this right. The Judge expressed surprise that it should be part of her Counsel's case that Ms Wallace could understand the proceedings, but he allowed her to remain.
His Honour did not tell the parties that he might draw inferences adverse to Ms Wallace from her demeanour in Court, so no evidence was called to explain to him that people, such as Ms Wallace, with severe physical deformities causing respiratory insufficiency, may have noisy breathing and may fall asleep due to lack of oxygen. (52a)
Another example of Judge Gorman's lack of understanding of the problems facing people with disabilities was the emphasis he gave to evidence that Ms Wallace had once spelt out with facilitation that she was "angry with Mum".
"In my opinion it would not be paying fair attention to the evidence of Mrs. Wallace to disregard it in this whole matter and regard her daughter's mental state as something to be decided and determined solely by experts. It does seem surprising that the Appellant would indicate in one of her messages that she 'was angry with mum'. No justification appeared to exist for this attitude, nor was any crossexamination directed to Mrs. Wallace to suggest there might be some demonstrable reason, even though fanciful, held by the appellant for such a view." (53)
The transcript of the hearing shows that Judge Gorman was shown a film of Ms Wallace using the Canon Communicator. The full message spelt out was:
"I AM ANGRY WITH MUM. SHE IGNORES ME. I AM BRIGHT." (54)
His Honour did not set out the full message in his reasons. Had he done so it would have been apparent that the message itself provided the justification for the expressed anger. Once again because Judge Gorman did not explain how surprising he thought it that Ms Wallace had once spelt out that message, Counsel did not suggest to him that the justification for Ms Wallace's attitude was contained within the message, namely that her mother did not recognise her communication or intelligence.
Similarly, none of the experts were asked whether, as Judge Gorman seemed to expect, a parent, loving or not, would invariably be able to establish communication, if their extremely physically disabled child had any valid means of communication. In this context it must be remembered that Ms Wallace had not lived with her mother since she was six years old.
Somehow Judge Gorman persisted in seeing something blameworthy in Ms Crossley's attempt to help Ms Wallace gain recognition of her abilities. Not only did he discount the evidence of expert witnesses because they were friends of hers, he made it clear that if there was to be a demonstration of Ms Wallace's ability to the Court, it was not to be done with the assistance of Ms Crossley or Mr Healey or even another speech pathologist, Ms Goldsmith, who had twice attempted to work with Ms Wallace but who thought "followup would be needed". (55) His Honour seems to have considered an open mind or belief in Ms Wallace's ability to communicate sufficient to disqualify expert witnesses from working with her in a testing situation.(56) He also seems to have considered evidence indicating belief in Ms Wallace's abilities to be so "incredible" as to constitute a reason to reject the evidence of a witness as unreliable.
The matter developed to the point where Ms Wallace had to decide whether or not she would attempt to demonstrate her ability to communicate through Ms Adams, an "interpreter" suggested by Counsel for the Health Commission. Ms Adams had never used facilitated communication and Ms Wallace had never previously met her. Ms Wallace met her on Friday and was expected to demonstrate her communication in Court with Ms Adams as facilitator the following Monday, which was the last day the Court was sitting that year. Ms Wallace decided not to do so. When Ms Wallace met Ms Adams she found her inexperienced in dealing with people with disabilities like hers, and unskilled in facilitation. She was therefore unsuitable as a facilitator. (57)
His Honour made inferences adverse to Ms Wallace as a result of her failure to demonstrate her communication to the Court. He did not seem to realise that he had set up so many hurdles and given an impression of having so little understanding of the problems facing Ms Wallace, that she was completely lacking in confidence that any demonstration could succeed. As Judge Brooks understood in Warden,(58) but Gorman J did not, it is unrealistic to expect a person with severe disabilities to be able to meet a new facilitator for the first time on a Friday and succeed in a demonstration of communication in a Court setting the following Monday.
On appeal, Wallace v Health Commission of Victoria, (59) the Full Court, Starke, Fullagar and Marks JJ, at p404 summarised the case as follows:
"Miss Rosemary Crossley was really the key to the whole case. She is a B.A. who has had many years' experience with children afflicted by cerebral palsy. On nearly every occasion when the appellant was said to have communicated with anyone it was she who was holding the keyboard of the Canon Communicator. The Commission directly suggested that she was manipulating the keyboard in order to spell out the messages and those messages were hers and not the appellant's. If, however, her evidence was accepted that the appellant was tapping the keys then it was not and could not be suggested that the appellant had not the capacity to make the request to bring the appeal and understand the contents of the documents if produced. The learned Judge determined this critical issue in favour of the Commission."
The grounds of appeal included:
"9. That the learned trial Judge erred in law in :- . . . (c) ruling that the Appellant was not entitled to be assisted in giving her evidence by either Miss Crossley, Mr. Healey or Miss Goldsmith;" (59a)
The Full Court looked at the transcript and was not satisfied that Judge Gorman had ruled against the use of the three suggested facilitators. Unfortunately for the success of the subsequent appeal, Judge Gorman expressed some of his views as to the nonacceptability of the three preferred facilitators in "discussion" which was not transcribed. (60)As appears from the passages on this issue quoted in the judgment of the Full Court, the transcript twice stated "discussion ensued" or "further discussion". (61) This occurred frequently in the full transcript. The passages of transcript quoted by the Full Court (62) included the following as to the use of Ms Crossley as a facilitator:
"At p.697/8 the following exchange took place:
'HIS HONOUR: If there were another one available from some other source, well, someone from that institution or place, or even a salesman, may be adept at the use of them. Could such a person not be available, as it were, to be an interpreter?
MR. DWYER: It is possible, Your Honour, but, Your Honour, we just can't say in advance as to whether or not such a person would succeed in establishing communication with my client.
HIS HONOUR: I think that possibility should be explored to start with. I think that the objection taken by Mr. Gillard is, prima facie, a good one, and as to Miss Crossley being the interpreter, as it were - - -
MR DWYER: Could I say this, Your Honour?
HIS HONOUR: Up to this point, I would uphold that objection.
MR. DWYER: Your Honour, I think, has not had the benefit of what we might desire to say about the objection as such."
In his final address, Mr Wood, Junior Counsel for Ms Wallace, submitted:
"It is said that it is difficult for her to communicate in circumstances of tension in strange surroundings, and in our submission, in giving evidence before Your Honour in the circumstances that she was called to do, would make it most difficult, in the light of all of the evidence, for her to take her case any further. Now, it is true that she did offer to give evidence, and my learned friend objected to the use of Miss Crossley and also Mr. Healey and also Miss Goldsmith - that they be used to assist her - so there the matter rested. The persons whom the Health Commissioner nominated to assist her were not satisfactory to her. That is as far as the matter goes." (63)
The Full Court commented:
"This is not at all the language that counsel would have used if the learned Judge had ruled against the use of Miss Crossley, Mr. Healey or Miss Goldsmith. That being so, it is clear to us that counsel for the appellant below made a conscious and voluntary decision that those people should not be used." (65)
Counsel for Ms Wallace understood that the Judge had upheld the objection of the respondent to the three chosen facilitators. Judge Gorman had shown his approach when the issue was first raised. He said:
"All I am putting is that if an objection is taken to an interpreter, as I have indicated, I have known many instances in fact, I have never known a Judge not to direct that some other interpreter be obtained." (65)
It is difficult to see why Counsel's address was taken by the Full Court to indicate otherwise. If Judge Gorman had not upheld the objection, why would it have been necessary for an interpreter suggested by the respondent to be considered, particularly one who met Ms Wallace for the first time after she had been put forward as a facilitator by the respondent? If it was not understood that the preferred three were not allowed, why would not the applicant's legal advisers have decided that one of them be used when Ms Wallace found Ms Adams "to be unsatisfactory to her"?
We cannot retry the Wallace case. Immediately after the case Ms Crossley's access to Ms Wallace was restricted and she was not allowed to use an alphabet board to communicate. She died on 15 October 1988.
It is important to understand the reasons for the inconsistency between the Wallace case and McDonald. In McDonald Mr Justice Jenkinson was prepared to accept that the motivation of Ms Crossley was simply to help another person and that there was nothing to her discredit in doing so. He, and Mr Justice Murphy and Senior Master Jacobs, who used inquisitorial methods, endeavoured to establish whether, in spite of the fact that she had been previously assessed as severely retarded, Ms McDonald may have been of normal intelligence, but unable to show it because of physical disabilities. They were satisfied that was so. In the Wallace case Judge Gorman from an early stage found the idea that Ms Wallace could be intelligent "quite incredible" and he never moved from that position. He did not seem able to grasp -
(i) that very profound physical disabilities can mask intellectual abilities;
(ii) that for that reason prior assessments of Ms Wallace's intellectual ability could be wrong;
(iii) that to strive to help another person to express herself is commendable rather than reprehensible;
(iv) that adversarial procedures were not appropriate to determine the issues before him;
(v) that it was necessary to explore ways in which Ms Wallace could demonstrate her abilities outside a Court room situation, and with people with whom she felt confident; and
(vi) that the hurdles set up for Ms Wallace were simply adding further to the very significant disadvantages she already faced.
Nor did Judge Gorman consider whether he could or should give any weight to the fact that the stakes were very much greater for Ms Wallace than for the Health Commission. What damage would there have been in releasing copies of her records to her or her solicitors, a reputable firm of Melbourne solicitors, if she won her case? (66) The result of her losing her case was to deny her any further use of facilitated communication, any further tuition, contact with those who had confidence in her abilities and the right to have a say in decisions about her future. Life under those conditions was apparently not worth the struggle.
Of the eleven subjects of the Eisen Committee of Inquiry Ms Crossley is aware that six, including Angela, have since died. She has lost touch with Mark, referred to in the Minutes of the Eisen Committee of 13 July 1979. Leonie, who correctly answered the questions about Isaac Newton and his dog, Diamond, and Noelene who the Minutes of 13 July 1979 stated "can handle sums and doesn't need her arm supported all the time", are still alive. They and two other subjects of the Inquiry are living in Melbourne. Because their means of communication has not been recognised they have not been provided with adequate appropriately trained staff, and have not been able to use their communication in their educational placements. They have very little opportunity to communicate in their daily lives and very little control over their lives. (67)