ACCESS TO JUSTICE FOR PEOPLE WITH SEVERE COMMUNICATION IMPAIRMENT - 7
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 7 - Ombudsman's Report on the Investigation of the Removal and Placement of a Client of Intellectual Disabilities Services because of Allegations made by Facilitated Communication, February 1994 ("Gina Report")
This is the report into one of the two uncompleted investigations referred to by the Ombudsman in the Williams report. (152) It is another instance where a disabled woman, "Gina", was removed from her home because of allegations of sexual abuse made by her, using facilitated communication. Again the allegations were made to a member of staff at the Sunshine Adult Activity Unit, which "Carla" (153) also attended. The family disputed Gina's ability to communicate by facilitated communication.
Once again the Ombudsman stated:
"Comprehensive assessments of Gina's cognitive abilities and literacy skills conducted under the supervision of the Public Advocate, provide evidence that the allegations made by facilitated communication were unable to be produced by Gina." (154) (emphasis added)
Such assessments, as previously stated, cannot provide conclusive evidence that allegations "were unable to be produced by Gina".
The report states that Gina was first seen at the Royal Children's Hospital at age twelve months in 1958. When she was tested on the Binet test in 1965 at age seven she was found to have an IQ under 50 - and it was recorded that she was "severely retarded but warmly attached to her mother".
Gina commenced attending Sunshine Adult Activity Unit in January 1977, age twenty. She was referred to DEAL in 1988 eleven years later, at age thirtyone, because of her limited verbal skills.
An important error by the Ombudsman is that he wrote:
"The SAAU staff were convinced that Gina's mother was informed of Gina's use of facilitated communication, but there is no documentation to substantiate this." (155)
Did the Ombudsman not notice that the DEAL records in Appendix C of his own report provide this substantiation? The record for 6 May 1991 shows that Gina's mother attended DEAL with Gina that day and that her sister, Anna, attended on 4 March 1991 and 6 May 1991, and tried facilitating for Gina on 6 May 1991. There is no suggestion in the report that those records are not accurate. (156)
The major problems in regard to assessing Gina developed when the office of the Public Advocate
(i) agreed to use the so called IDRP "validation testing" procedures; and
(ii) agreed to Tony Catanese being the psychologist nominated by the family as one of the assessors (in spite of him being a signatory to the "Statement of Concern"). (157) The other psychologist was a Mr Radler who was employed by the Department of Health and Community Services.
The Adult Activity Unit had accepted Gina's communication with facilitation for some time before the allegations of sexual abuse were made. In Appendix B of the Gina Report it is reported that the Acting Director of the SAAU, when she read the Interim Report, questioned the basis of the Ombudsman's belief that Gina was unable to communicate in the manner attributed to her. (158)
After reading the final report the foundation of the Ombudsman's view is still quite unclear.
With no detail except the brief reports at pp53 and 54 and in Appendix D as to how Gina performed in her psychological assessments, it is impossible to explain the problems with the assessment. For instance the psychologists found evidence of a word finding problem which they said could be due to aphasia or developmental delay. Their report states:
"The possible presence of aphasia was controlled for in the testing undertaken to validate Gina's use of facilitated communication."
There is no explanation of how this control was provided. Some of the questions asked required nouns as answers. (159) Nor is there any detailed description of the validation testing.
More significantly the Ombudsman, as Ms Crossley stated in her twenty page response to the Report (two pages of which are published in Appendix B)(160) , selected only those parts of the psychological assessment which confirmed his initial prejudices.
Ms Crossley has provided a copy of her full submission to the Ombudsman, before he delivered his "Gina" report. It provides considerable detail (at p5) as to what happened in the psychological testing of Gina which she facilitated and should have been published in full in the Ombudsman's Gina Report. (161) It makes very worrying reading. Ms Crossley, at p5, set out the following passages from her notes of the facilitation on 23 May 1992:
"Towards 5.30 [Gina] spontaneously typed BLAST ROSIE and then something about coming again CASSETTE (twice) and about wanting ANOTHER PRESENT. I asked her if she'd been given a present today and she said yes. Mr. Radler asked her who'd given it to her and she pointed at him. I asked her what it was and she typed C C PIR. At this point she was asked What do you do with it? She pursed her lips, I asked her if it was a balloon. She said no.
She typed FIRE CAN.
I said something like Yes, can, go on - what can you do with it?
CAN DL I said Candle - did they give you a candle? [Gina] said yes. This was confirmed by Mr. Radler and Mr. Catanese.
[Gina] seemed quite relaxed and cheerful throughout. The table used was too high and I had to hold her sleeve through the questioning."
In an article yet to be published Ms Crossley has explained:
"Initially they proposed testing Gina's facilitated communication using a facilitator she had never met who had never had any formal training. The psychologists wanted Gina, who was known to have severe wordfinding problems, to type the names of pictures hidden from her facilitator, who was to wear headphones and hear white noise. DEAL offered to provide a facilitator (myself) on condition that the testing conditions were modified by the inclusion of some less clinical messagepassing tasks.
On the day of the testing psychologists, Gina and I met in the midafternoon. The first thing Gina typed to me was that she and one of the psychologists had been to a local coffee lounge. This was confirmed. Gina then did as badly at the naming task as I expected - an observer who could see the pictures said she typed the names of some correctly, and said the names of some correctly, but got most wrong. He commented particularly on one interesting and memorable error. Asked what one picture was, Gina typed 'rape'. As facilitator I was quite embarrassed, and assured Gina that whatever she had been shown I was sure it was not a picture of a rape. The observer told me afterwards that the picture showed a man and woman embracing. When I spoke about this to the Director of Gina's day program I was told that this was a consistent error, one which Gina made regularly in human relations classes. This raised the question of whether some of Gina's less striking errors were also consistent with her everyday language use. [It also raises the question whether some of Gina's allegations of sexual abuse may have involved the incorrect use of language.] . . .
Despite the fact that by this stage Gina and I had been together for two and a half hours, and despite the fact that the only information about her visit to the coffee shop and her receipt of a present of a candle had come through facilitated typing, the psychologists reported that 'At no stage did facilitated communication lead to a cuefree communication output which was more advanced than her [Gina's] speech and gestures'." (emphasis added) (161a)
The report of the Ombudsman states of Gina's psychological testing "She was not observed initiating any communication".(162) How can that be reconciled with Ms Crossley's notes. Her account is not denied. It is simply ignored in the final report of February 1994. In spite of s.23(7) of the Ombudsman Act which requires the Ombudsman to publish a person's defence to allegations against them, not an extract of the defence, the passage quoted above was not published. It should have been included in Appendix B and would then have substantially challenged the Ombudsman's conclusions in the Gina report. (163)
The only basis for alleged facilitator influence in the report appears to be mere speculation in this passage:
"Gina was asked 'What sort of abuse have you had in the family home?' The typed response was 'I noticed my brother was incest in my vagina.' (Note - The Counsellor's notes to the CPS re Carla includes extract from counselling for Carla. The question is, 'What is happening to you at home?' The answer (photocopy of Canon tape), 'I noticed my brother was incest in my vagina.') Ms Gardner who facilitated for Gina in this session, was the main facilitator for Carla. The evidence for facilitator influence is undeniable." (164)
It seems unlikely that any member of staff of an Adult Activity Unit would invent a sentence with such an unusual use of language. But it is even less likely that a person employed in a responsible position, having once invented that strange sentence and having pretended it was authored by a client, would then falsely again use the same sentence as the alleged communication of another client. Is it not much more likely that one client did author that message (whether or not it was true is another question) and that the Canon Communicator tapes somehow became confused, so that it was also believed to be the message of the other client? Once again an occasion for the use of "a healthy sense of reality".