ACCESS TO JUSTICE FOR PEOPLE WITH SEVERE COMMUNICATION IMPAIRMENT - 6
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 6 - Ombudsman's Report: Report on the Investigation of a Complaint of Unjust Dismissal because of Allegations made by Facilitated Communication, May 1993 (the "Williams Report")
This report begins with a synopsis which states:
"Mr Williams was charged with rape and indecent assault of three female residents of the CRU. The allegations were made by Facilitated Communication on the Canon Communicator. At a Committal Hearing at Moe Magistrate's Court, 15 May 1990, Mr Williams was discharged from custody because the evidence was not able to be heard. A Hearing was held at the Office of Merit Protection, 7 December 1990 and the dismissal was upheld. A formal investigation was made under Section 17(1) of the Ombudsman Act. For the purposes of the investigation the administrative action was defined as the alleged failure to give full consideration to all evidence prior to the dismissal of Mr Williams. The investigation has been concluded. A comprehensive assessment of the skills of one of the clients has confirmed that she was unable to make the allegations attributed to her. The complaint that Mr Williams was unjustly dismissed has been substantiated. The Ombudsman has recommended that Mr Williams be reinstated to a position within the Department and that he be financially compensated. The Department has rejected the recommendation."
That synopsis gives rise to concern. If there are allegations made in a form sufficient to give rise to charges of rape and indecent assault, then it is simply unsatisfactory for a legal system to be unable to deal with those changes because "the evidence was not able to be heard". A well functioning legal system would devise a way to hear the evidence and allow the decisionmaker to decide what weight to give the allegations. That was the approach adopted by Judge Brooks at first instance in Warden and approved by the Supreme Court of Kansas (129) on appeal. In Laumalili,(130) Judge Frater had demonstrated to him the operation of the communication aids used by M, and then admitted evidence of communication by her with facilitation. In Victoria after the Magistrate had dismissed the charges in Police v Williams because the "evidence was not able to be heard" Ms Crossley wrote a paper called "Silent Witness: The Court System and People Who Use Non-Speech Communication". (131) She described the three complainants, stating that all three had significant social and behavioural problems and two had spent lengthy periods in institutional care. They were all in the habit of communicating by typing on Canon Communicators with various levels of skill and independence. She continued:
"Because the women had only started communicating relatively recently, only a small number of experienced partners was available, most of whom were immediately rejected by the defence on the grounds that they were also likely to be called as witnesses. Other possible partners did not wish to be involved in court proceedings. The writer was called in as an 'expert', to be rejected by the defence on the ground of having too great a commitment to the communication methodology. This issue was unfortunately not argued before the magistrate - a finding on the permissible grounds for rejection of communication partners would have been valuable." (emphasis added)
The prosecution's application for a month's adjournment to train new facilitators was refused. Thus the prosecution was unable to call any evidence and the defendant was discharged.
The Magistrate, Mr Pilgrim, was concerned about the lack of any precedents or guidelines. It is unfortunate that he believed it necessary to exclude Ms Crossley because of her skill in and commitment to facilitated communication. As is said elsewhere in this paper, there is no rational reason why commitment to, or skill in, a language or method of communication such as Greek or deaf sign or facilitated communication should disqualify an interpreter. Although some of the suggested facilitators did have regular contact with the three complainants, it is also difficult to see why that should have disqualified them as facilitators. Rather they should have been sworn to do no more than facilitate and their contact with the complainants should have been the subject of evidence, so that it could be taken into account in considering the weight to be accorded to the evidence given with facilitation. (132)
Further, as already stated, there must be great unease about the assertion that "a comprehensive assessment of the skills of one of the clients has confirmed that she was unable to make the allegations attributed to her". All any assessment can do is demonstrate or fail to demonstrate that a person functions at an intellectual level required to make the allegations attributed to her. As Dr Morley has shown in his paper, (133) and as was shown in the popular books and films of Anne McDonald's story "Annie's Coming Out", and of Christy Brown's story "My Left Foot", (134) there is always the possibility that, even if intellectual functioning is present at a sufficiently high level, physical disabilities may hide it even from skilled testing.
It is extraordinary that the first three pages of the Ombudsman's Williams Report consist of an emotional attack on the Department whose actions were being investigated, unrelated to the matter being investigated, save that it condemns the use of facilitated communication. The attack is based on two other matters before the Ombudsman in which allegations had been made by facilitated communication, but in respect of neither of which the Ombudsman's investigation was complete. All that summary can possibly do is show that the Ombudsman's bias against facilitated communication was so great that he would reject any communication by facilitated communication and thus could not conduct any inquiry in which the validity of facilitated communication was in issue. Presumably in his opinion Jenkinson and Murphy JJ and Senior Master Jacobs of the Supreme Court were all wrong in accepting Ms McDonald's communication by facilitated communication as genuine.
The Williams Report contains serious errors in its summary of the IDRP report. For instance, the Williams Report says:
"Unfortunately, this inquiry was hamstrung from the start by the refusal of DEAL, the main service provider, to cooperate with the testing." (135)
What the IDRP Report says is:
". . . the DEAL Committee was reluctant to participate in the controlled study. Instead DEAL agreed to assist in finding three to five clients willing to participate in a simple message passing exercise and three were subsequently found." (136)
The Williams Report says:
"When the same questions were played to the client and the facilitator the response was always appropriate." (137)
The IDRP Report shows:
(i) client 2 only gave the expected response to three out of six questions in condition B, where he heard the same questions as the facilitator; (139) and
(ii) client 3 on condition B answered two out of three questions correctly. (140)
The Williams Report states:
"The only unequivocal finding that emerged from the testing was that in all instances the facilitator influences communication."
What the IDRP Report says is:
"The results of the study clearly demonstrated:
(i) the validity of clients' communication while using the assisted communication technique;
(ii) that an assistant may influence the communication;
(iii) that a client's communication may be influenced by an assistant, even though the client is able to communicate;
(iv) the validity of one client's communication although he/she does not communicate independently and has not generalised his/her communication to various others.
The findings of the study need to be interpreted with caution as the sample was very limited. However, the data obtained were objective. In addition, the nature of the dispute which gave rise to the investigation may be expressed in terms of some general hypotheses e.g. 'all physically assisted communication involves influence by the assistant' and 'all physically assisted communication by clients is valid expression of the client's concepts'. Production of even single instances of opposing evidence is important in such a situation. A number of single cases which provide clear contrary evidence, as is the case here, is very useful.
It is clear that some communication using physical assistance involved influence by an assistant and some did not. The results of the message passing exercise, in conjunction with the results of the controlled study, also indicate that some clients' communication is valid while using the 'assisted communication technique'. Although only a small number of cases were involved, it was apparent that neither position of the two sides of the dispute could be wholly supported." (emphasis added) (141)
One is left wondering whether the Ombudsman ever read the IDRP report or whether he simply read the misleading summary of that report by Cummins and Prior. (142) The Ombudsman showed lack of awareness of the issues before him when he wrote:
"At a Committal Hearing at Moe Magistrates Court, 15 May 1990, Ms J. was to give evidence on the Canon Communicator. A simple test was proposed. The facilitator, still supporting Ms. J.'s arm, was asked to turn away from the keyboard while Ms J. gave her evidence. No sensible communication emerged. " (emphasis added) (143)
The Ombudsman, with no experience of facilitation and a bias against it which he did not even try to hide, may regard that as a simple test. It is about as simple as interpreting spoken language without being able to hear it. In order to facilitate communication on a keyboard the facilitator must be able to see the keyboard. Borthwick and Crossley have likened facilitated communication to listening to a low powered transistor radio "which works okay as long as you get it tuned and positioned exactly right and there's no interference". (144)
One part of the evidence which the Ombudsman seems to have regarded as so incredible as to make him suspicious of all communication by the three women concerned, was that concerning a tattoo. The Ombudsman wrote:
"All three women made allegations regarding a tattoo on Mr Williams' stomach. There is no tattoo. This has never been explained. (The CSV response offers an explanation. The tattoo was a 'transfer', which was wet and stuck on by Mr Williams Ms. J. made a statement to that effect prior to the court Hearing. Appendix C.)" (145)
It is not clear why the Ombudsman rejected the explanation about the tattoo being a transfer applied by wetting. Tattoo transfers are readily available in milk bars. They come in various designs and are applied by wetting.
When the Ombudsman applied to the Guardianship Board to have a Guardian appointed for one of the women, an assessment of her communication was performed by the Microcomputer Applications Centre and then reviewed by Professor Hudson who, the Ombudsman wrote, "has acknowledged expertise in this area". In fact, as already stated, it is more accurate to say that Professor Hudson is an acknowledged critic of facilitated communication.(146)
One of the omissions from the Ombudsman's report is any analysis of the evidence which was before him, which provided some corroboration of matters communicated by the three women:
(i) APPENDIX A of the report is a Chronological Summary containing, amongst others, the following entries:
"20 Nov Ms C. alleges that Mr Williams raped her 18 November. No medical checks.
21 Nov Ms C. withdraws allegations but makes a further allegation re Mr Williams hitting her and using drugs ('needle').
[The report states 'The interviews with staff established that although a bruise had been observed on Ms C's buttock, there was no evidence that the bruise was inflicted by Mr Williams.' (147) The Ombudsman did not regard this as worth further investigation.]
2 Dec A Staff member informs the Coordinator that Mr Williams was seen going from the Supervisor's bedroom to the kitchen with a sieve in his hand. No action. [The answer to questions 66 and 76 of Ms K's statement to police (Appendix B of the Ombudsman's Report) refer to Mr Williams using a sieve in preparing drugs. The Ombudsman apparently was satisfied with Mr Williams' explanation to police that he stood his hairpiece on the kitchen sieve (p18) but he does not expressly say so.]
16 Dec Neighbour reported loud sobbing about 9pm. Mr Williams recorded 'Ms. J. upset' in Day Book."
[The Ombudsman does not comment on this entry.]
(ii) The Ombudsman does not explain whether or not he gave weight to the fact that the complainants confirmed their statements to police using independent "Yes/No" responses.
(iii) The Ombudsman also gives no reason for not accepting the opinions of the psychologist, Miss Bowman, who assessed the women using facilitated communication and who, in her response to his draft report, stated:
"As I recall I said in my interview with Ms Day, that I did attempt some validation during the assessments by angling test pictures away from Ms W. so that the subjects alone could see them and provide responses. The subjects achieved a significant number of correct responses which was generally consistent with their overall performance." (148)
The report reads as though the Ombudsman was more interested in attacking facilitated communication, than in investigating the truth or falsity of the allegations made against Mr Williams. (149)
The Ombudsman Act 1973 (Vic) in s.23(7) provides:
"[T]he Ombudsman shall not in any report under this Act make any comment adverse to any person unless that person has been given an opportunity of being heard in the matter and his defence is fairly set forth in the report."
In spite of the acknowledgment in the report that Ms Crossley and DEAL are the main advocates for facilitated communication, (150) the Ombudsman never gave Ms Crossley or DEAL the opportunity to defend facilitated communication and to answer the often unsourced and mistaken opinions on which he based his illinformed attacks. (151) All the Report states as to contact with DEAL is at p11, "Telephone contact was made with DEAL."