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.
The Prime Minister, the Hon Paul Keating, in his Foreword to the Justice Statement issued by the Commonwealth Government in May 1995, wrote:
"Access to justice is the right of every Australian. It is an essential part of our democratic society."
The statement itself asserts (at p168):
"Equality of access to the justice system for all is a fundamental human right."
The aim of this paper has been to help make access to justice a reality for people with severe communication impairments. It will succeed in its task if the following lessons are learned by the system of justice in Australia.
1. We must ensure at judicial conferences that the judiciary and other decisionmakers have the benefit of professional development sessions on disability issues as well as on gender awareness and multicultural issues.
The more knowledge Courts have of the needs and restrictions of people with disabilities, the more likely they are to be able to adapt the hearing processes to meet their needs while retaining procedural fairness. Judge Gorman was not aware that physical disabilities can cause respiratory insufficiency, which may make it difficult to stay awake. Nor did he realise that some people lack the control of facial muscles necessary to maintain an alert appearance. Even more importantly, Judge Gorman did not recognise or accept the importance of familiarity and confidence to a person with a communication impairment. He would not allow Ms Wallace to use the facilitator of her choice, or even her second or third choice to give evidence before him. In contrast Judge Brooks in Warden allowed JK to use the facilitator of his choice in court, and arranged for special procedures in Court to maximise his chance of responding to questions. He allowed crossexamination to be outside the court room and transmitted on closed circuit television.
2. A witness should be presumed to be competent not incompetent.
In jurisdictions to which the Evidence Act 1995 (Cwlth) applies, this is now a statutory requirement (s.13(5)). It is to be hoped other jurisdictions will enact similar legislation.
As Lew Borofsky, the County Attorney in Luz P, said in an address in the United States in 1994:
"[W]itnesses . . . ordinarily in court situations are presumed to be competent. You are presumed to be competent unless you are shown to be incompetent. And what happens in these facilitated communication cases is that you end up with the opposite. You get one look at these people, or you hear about facilitated communication and immediately the presumption is that they are incompetent. . . . and that's what the people who defend these cases will immediately try to do. They will immediately try to divert the issue and make the Judge think that somehow they have to go to great lengths to prove the competence of the person. And it really shouldn't be that way."
People with communication disabilities have enough hurdles to overcome in life - they should be dealt with by the judicial system in the most helpful way possible. They should not have to surmount ever more complicated tests to show they are not incompetent.
3. Potential facilitators for the giving of evidence should not be assumed incompetent or to be lacking integrity because they are facilitators (as in the Matter of Carla). Nor should they be rejected as facilitators because they are familiar to the witness or (as in the Police v Williams in Moe Magistrates Court) because they are committed to facilitated or augmentative communication. We never hear of Greek or Italian interpreters being rejected because their expertise in the language is too great.
4. The judicial approach of weighing the evidence on the scales of commonsense should not desert judges the minute they are faced with facilitated communication.
Mr Justice Jenkinson used commonsense in McDonald (1) when 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."
Similarly, Judge Frater in Laumalili said, at p420:
"I accept that the three women involved, Mrs H, Mrs A and Mrs N, had no reason to direct M's communications in such a way that she said things that she would not otherwise have said. Both Mrs H and Mrs A impressed me by their commitment to ethical standards of professional conduct."
Contrast this with the Carla matter. The Guardianship Board regarded it as more probable that nine different facilitators (against the good character and mental health of each of whom nothing was alleged) invented messages of sexual abuse and pretended they were Carla's messages, than that Carla herself was the author of those messages. One would have thought that conclusion was inherently so unlikely as to send the Board back to the drawing board, but sadly this was not so. There is no explanation as to why the Board failed to use commonsense and "a healthy sense of reality".
5. Flexible procedures, used by an educated and understanding Court or Tribunal or Panel, such as Senior Master Jacobs in McDonald (2) or Judge Brooks in Warden, are far more likely to reveal the validity of communication with facilitation than strict adversarial procedures such as were used in Wallace.
As Lew Borofsky explained in his paper on Luz P, the criminal procedures are likely to prevent reliance on facilitated communication, even where it is valid communication of true allegations. It is fortunate that the Australian Evidence Act 1995 specifically allows the use of any appropriate means to enable a witness with a communication impairment to give evidence. It provides:
"31.(1) A witness who cannot hear adequately may be questioned in any appropriate way.
(2) A witness who cannot speak adequately may give evidence by any appropriate means.
(3) The court may give directions concerning either or both of the following:
(a) the way in which a witness may be questioned under subsection (1);
(b) the means by which a witness may give evidence under subsection (2).
(4) This section does not affect the right of a witness to whom this section applies to give evidence about a fact through an interpreter under section 30."
Under s.31 a Court could allow questioning to take place outside a Court room, or with the use of closed circuit television, or in any other way which is required to allow for a person's disability. The Evidence Act provides, in s.13, for a very flexible test of competence of a witness, and in s.13(4) that a witness is only incompetent if the person's incapacity to hear, understand or communicate a reply to a question "cannot be overcome". There is provision in s.13(7) for a Court to determine issues of competence in an inquisitorial manner. Further flexibility in questioning a witness is provided for by s.26. See Temkin "Disability, Child Abuse and Criminal Justice" for further suggestions as to how the justice system can make appropriate allowances so children [or adults] with communication disabilities can give evidence, or by accepting videorecorded interviews as evidence.
6. There may also need to be flexibility about the taking of an oath or affirmation.
In Police v Williams one problem was that the Magistrate was persuaded he should not allow the complainants to give evidence using their preferred facilitators. Another problem is apparent in the following incident recounted by Ms Crossley in her article "Silent Witness":
"The court system needs to be more flexible if people with communication impairments are to be able to exercise their right to a day in court. Many minor adaptations in ordinary court procedures are necessary. At Moe it was proposed that the women type every word of the oath. (Because no facilitator could be agreed upon, this did not in fact occur.) For some nonspeaking witnesses that procedure could take half an hour and leave them exhausted. Surely it should be acceptable for the oath to be read by the clerk and for the witness to be asked if they understand and will abide by it. That would in fact have to be done for any witness using a symbol board for communication, or such a witness would be precluded from ever giving sworn evidence."
At the Commonwealth Administrative Appeals Tribunal the oath or affirmation is read to the witness who is simply asked to agree to it by saying "I do". That approach can also be adopted by Courts (see Evidence Act 1995, ss.21(4) and 22(4).
7. If facilitated communication is ignored or not recognised by Courts people who cannot communicate otherwise may continue to be victims of sexual assault or may suffer other serious injustices.
Remember that S's communication using facilitation in Laumalili and JK's in Warden were the first communication made in each case alleging sexual abuse? In each case once that communication was listened to and taken seriously, there was persuasive corroboration. Remember the medical evidence of repeated acts of penetration and the evidence of three care givers that they had noticed the smell of semen in Laumalili, and the confessions in Warden? Had the first communication not been listened to, the sexual abuse in each case could have continued unchecked, because there would have been no way for the victim to register a complaint. In the Queensland project two instances are described where facilitated communication alerted care givers to serious health problems affecting clients.
8. As Dr McGinn said in McDonald (1): "It is impossible to psychologically assess people who have no form of communication."
As Judge Brooks said in Warden at first instance:
"JK is more than simply a diagnosis, he is what he is, the diagnosis is the nearest pigeonhole we can find for him."
The Supreme Court added on appeal:
"If JK is able to validly communicate there is of course a question about the validity of the tests showing him to be severely or profoundly mentally retarded."
Not only Ms McDonald, but also S in Laumalili and JK in Warden were assessed as severely retarded. With facilitation all three showed in their court cases (as did Angela, Leonie, Phillip, Mark and Noelene to the Eisen Committee, and the subjects of the IDRP and Queensland projects) that they had intelligence far beyond that which had been established as a result of psychological testing. As facilitated communication is the only means many people have to show their true intelligence, intelligence tests performed without facilitation are unreliable. Subjects may object to the content of the test and therefore not cooperate. Ms McDonald has described one such test:
"When I was 17, a pediatrician was asked to assess my intelligence. The selection of a pediatrician as the relevant professional itself says something about preconceptions. It indicated that I was thought to have less intelligence than a fouryearold.
The doctor refused to be told how I signalled 'yes' and 'no' - he said it might bias his assessment. He refused to see me in my posture chair, insisting that I be laid on my back. I couldn't sit up unsupported, and I couldn't use my hands. He wanted me to reach for a plastic ring, and when I didn't, he concluded that I was functioning at less than the 6½-years-old [sic] [months ?] level.
I was 17 - what would reaching for a plastic ring have proved? That I was a good baby? On his tests I could never have shown that I was intellectually normal."
9. While we are talking of testing, let us not forget that the test itself changes the situation being tested by introducing new variables.
"The experimental method is central to the dialogue with nature established by modern science. Nature questioned in this way is, of course, simplified and occasionally mutilated."
The so-called "controlled experiment" method has been repeatedly shown to mutilate communication. Some of the problems with it are the introduction of fallible technology, the tension associated with the testing situation for people known to have bodies which are difficult to control, the lack of allowance for word finding problems when the first or even second or later answer may not be the intended answer, the interference with the relationship of trust between client and facilitator, the introduction of unskilled facilitators, the interference with the facilitator's concentration, the lack of communication between client and facilitator to read back and clarify the message so far, and the totally inappropriate requirement on occasions that the facilitator look away from the alphabet board or Canon Communicator.
10. There may be problems with tests for all sorts of reasons.
In McDonald it was only Senior Master Jacobs' patience and persistence in trying the test three times which led to the conclusive final result. There may be word finding problems as explained by Donna Williams or demonstrated by clients 1 and 2 in the IDRP message passing test. Or there may be tension leading to spasm or other problems which prevent the test being completed. There may be anger or resentment at the content of tests or at being asked to repeat tests after successful performances - possibly the case with clients 1 and 3 on the IDRP testing. Such matters do not show the client cannot communicate. All they show is that on that occasion communication was not validated.
11. The failure by the Eisen Committee to acknowledge in its report the results of its own testing which showed a number of children communicated information far beyond "the most elementary level of literacy or numeracy" has been allowed to go unmentioned for far too long.
Ms Crossley was right and the Eisen Committee was wrong. It must be clear that had the Minutes and notes been produced at the Wallace hearing before Judge Gorman, they would have undermined the evidence of Dr Eisen. Not only has Ms Wallace died without her voice being heard, but numerous other people, including Leonie, Mark, Phillip and Noelene, have been unable to have their communication recognised because of the effects of the misleading report of the Eisen Committee and the wrong decision in Wallace.
12. Before accepting any reports of facilitator influence invalidating facilitated communication look carefully at the facts yourself.
The results of the IDRP testing are frequently misrepresented. In fact:
(i) Four out of six of the clients being tested validated their communication using facilitation even on the strict analysis used by the Panel.
(ii) Arguably the other clients also validated their communication.
(iii) The technology of headphones and recorded questions created problems in every case in which it was used and should not ever be used in such tests. It is analogous to asking an interpreter to translate a foreign language while listening to a background tape in a different language.
(iv) The message passing test gave results showing 100% valid communication and should be used wherever possible, but it too will sometimes face problems.
13. The Ombudsman's reports on facilitated communication are substantially flawed.
He ignored s.27(3) of his own Act which 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,"
His reports are full of comments adverse to Ms Crossley. As to the Williams report, he gave her no opportunity of being heard. He did give her that opportunity in respect of the "Gina report" but "her defence" is not "fairly set forth in the report". It is substantially abbreviated and in particular her account of the psychologist's testing session with "Gina", which shows Gina conveying accurate information to Ms Crossley, is neither set out nor referred to in the Ombudsman's Gina report. There is no appeal from or review of reports of the Ombudsman. The author wrote to him on 11 November 1993 enclosing a copy of her letters to the Attorney-General and the Minister for Health of 21 May 1993 pointing out some of the problems with his Williams report. He never replied to that letter. These matters are too important to entrust to a process with no review and no appeal.
14. Do not let the fact that so many of the cases and enquiries concern allegations of sexual abuse, lead to scepticism as to the validity of communication.
It is a sad but recognised fact that inmates of institutions, and those who are mentally or physically disabled and who cannot easily register complaints are often victims of sexual abuse. This is not something particular to those who use facilitated communication. See Temkin - "Disability, Child Abuse and Criminal Justice" and R v Deakin. Once such complaints are made there are administrative and legal processes in place which mean the allegation must be investigated. That is how the Carla, Gina, Williams, Luz P, Laumalili and Warden matters came before the authorities. In those circumstances there is no cost to the victim in bringing proceedings. Those are the reasons why there are a number of those matters.
15. There is a need for a legal aid budget allocation and training of lawyers and others as disability advocates.
In Victoria we have seen two separate applicants, Ms McDonald and Ms Wallace, seeking, with the help of Ms Crossley and other friends, to use legal processes, not to prevent criminal abuse, but simply to have their voices heard in the making of their own lifestyle decisions. There is presently no ready source of legal aid or funding available for such matters. As Jenkinson J in McDonald (1) and Senior Master Jacobs in McDonald (2) found, Ms Crossley is not only a person with skills in helping people with severe communication impairment find a means of communication, she is also a sincere and honest person with a genuine dedication towards the goal of improving the lives of people with disabilities. She has been honoured with an award of the Order of Australia but she has also been unfairly criticised. It is time all caring professionals - doctors, lawyers and psychologists, in particular - recognised the valuable contribution of Ms Crossley and others like her to the welfare of people with disabilities. They need to be supported in their work of assisting people with severe communication impairment, to have their voices heard and to obtain access to justice. If that requires a legal aid budget and support of disability advocates, those are important items of expenditure. The fact that people with severe communication impairment cannot speak for themselves means that we as individuals and the community as a whole must be ready to speak for them and to listen to them in whatever way they can communicate.
It is therefore appropriate that the final words of this article are written by Sellin:
"a mute person wants to articulate
too he has a right to language too
without language we are dead isolated outcast apparatus
an important work bringing language to the mute" 27 February 1992
"lack of speech is not the same as lack of intelligence
a speech inhibition can have various internal functions bringing peace inside you i mean without certain knowledge of the theories known to no one theories from the depths of the autistic world you cant explain
lack of speech or get a grip on it it is a great problem because we need support while writing
i have no idea why that should be so" 28 October 1992
"dear uwe ...
I share your hope that one day we can talk to each other like everyone else however i have noticed that we have the ability to speak
but it must be blocked somewhere and this is why it is impossible for us to behave properly or write alone it is less the organic area than the psychic area that is disturbed
i feel more and more sure of that a relaxed psychic situation means i can do much more than when i am tense and anxiety is also the reason why writing wont work for some people
i am sure we will find a way to independence" 27 December 1992