ACCESS TO JUSTICE FOR PEOPLE WITH SEVERE COMMUNICATION IMPAIRMENT
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. 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."
ACCESS TO JUSTICE FOR PEOPLE WITH SEVERE COMMUNICATION IMPAIRMENT 2
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.
Back to Chapter 1
CHAPTER 2 - Anne McDonald
The first time a court accepted the validity of a communication made with facilitation was in the Supreme Court of Victoria in The Queen v The Health Commission of Victoria, George Lipton and Dennis McGinn, ex parte Anne McDonald (20) ("McDonald (1)"). Anne McDonald was born in country Victoria on 11 January 1961. She sustained brain damage at birth and, in consequence, suffered cerebral palsy with grave physical disabilities. She was placed in an institution known as St Nicholas Hospital when she was three years old. She lived there until 1979 when she was eighteen. She then wanted to leave in order to live with Rosemary Crossley who she had met in 1974 when Ms Crossley started working as a ward assistant at St Nicholas Hospital. The Health Commission refused this proposal. In Supreme Court Habeas Corpus proceedings Jenkinson J ordered that the respondents not hinder Ms McDonald's departure from St Nicholas Hospital.
Ms Crossley has described Ms McDonald from the time of their meeting, when she was aged thirteen:
"Anne [McDonald] had been living in a state institution since she was three, and was still the size of a threeyear old. She had no wheelchair and lay on the floor during the day. . . . When she was seated in a baby buggy (a larger version of a baby's stroller, and the only seating available) her head and shoulders retracted to the extent that she was at risk of suffocation. In order for her to look at anything placed in front of her it was necessary to flex her hips forcibly and bring her head forward. In order for her to point it was necessary to use my hand to internally rotate her arm and raise it from its retracted position behind her. With this support Anne pointed correctly to named objects, pictures and a few Blissymbols before going on to learn to read and spell."(21)
Ms McDonald has no speech. The issue in the proceedings before the Supreme Court was whether she had communicated her wish to leave St Nicholas Hospital and to live with Ms Crossley. The methods of communication used included facilitated communication and "Yes/No" responses. The proceedings were resisted by the Health Commission of Victoria and others. The respondents said that they declined to permit Ms Crossley to take the applicant from hospital to live with her because of a sense of moral responsibility for the welfare of Ms McDonald.
Ms Crossley claimed no authority to remove Ms McDonald from the hospital except Ms McDonald's request. She swore an affidavit explaining how she supported Ms McDonald's head and right arm to enable her to point to magnetised letters on an alphabet board thus spelling words and sentences which disclosed a normal intelligence.
His Honour summarised the respondents' case as follows:
"It was not suggested . . . that Miss Crossley had manipulated the applicant's movements to achieve the selection of letters with the conscious intention of deceiving any observer. I was invited rather to attribute the selection of the letters, which it was suggested that Miss Crossley and not the applicant had made, to the operation on Miss Crossley's mind of her strong emotional commitment to achieving communication with the applicant and a similar commitment to convincing the respondent and others that intelligent communication by the applicant is within the applicant's competence. . . . I think that I should take judicial notice that psychological mechanisms of that kind may lead a person in Miss Crossley's position into deluding herself and attempting to deceive others, without conscious recognition by that person of what she is doing."
The most significant evidence before Mr Justice Jenkinson which challenged the validity of Ms McDonald's communication, using facilitation by Ms Crossley, was that of Dr McGinn. He was a psychiatrist and paediatrician and had been Superintendent of St Nicholas Hospital throughout the fourteen years during which Ms McDonald had lived there. His evidence conflicted with that of Dr Graves, another paediatrician working at St Nicholas. They agreed that Ms McDonald suffered from athetosis, but Dr McGinn was of the opinion that she also suffered from bilateral hemiplegia. Both medical experts agreed that a person suffering from bilateral hemiplegia was very likely to be mentally retarded but that, if Ms McDonald did not suffer from that condition, the chance of her suffering mental retardation was much less. It was because Dr McGinn believed that Ms McDonald suffered bilateral hemiplegia and hence was severely mentally retarded, that he could not accept that the communication by spelling was her own. Thus it was important for Jenkinson J to consider the evidence as to whether or not Ms McDonald did suffer from bilateral hemiplegia.
Dr Graves said that in his opinion the dominant disability was athetosis, and thus it was unlikely that Ms McDonald's intellect would be severely affected. He explained that in athetosis, the damage is to the athetosis, or nuclei at the base of the cerebral hemisphere, and the usual situation is that the intellect is not impaired. He agreed with Counsel for the respondent that if a person is suffering from bilateral hemiplegia, basically from birth, "then the high probabilities are that the person is a mental defective". Dr Graves was crossexamined as to why he described Ms McDonald's problem as athetoid cerebral palsy rather than as spastic bilateral hemiplegia. He agreed that the signs of bilateral hemiplegia were bilateral impairment of the limbs, and dwarfing of the limbs and that Ms McDonald was then of a very small size. It was agreed that her size at the time of the hearing (when she was aged eighteen) was that of a child aged five but Dr Graves did not accept that she had dwarfing of the limbs.
He stated: "[S]he has the appearance of a girl of much younger age, and she is, in my opinion, quite well proportioned." (22)
It was his opinion that Ms McDonald was not suffering from dwarfing of the limbs, but simply from small stature due to malnutrition. He explained that athetosis leads to great difficulties with feeding which result in a failure to grow adequately. He acknowledged that he had not seen anybody as deficient in growth, for those reasons, as Ms McDonald.
Dr Graves has been proven by time to have been absolutely right. Now that Ms McDonald is a woman in her thirties, she is of normal size and does not suffer from dwarfing of the limbs.
Dr Graves also gave evidence that he had seen Ms McDonald giving "yes-no" signals by using her tongue and eyelids. He explained why he found those signals convincing:
"What makes it most convincing is the obvious effort that she is making to achieve control to get the message across. She obviously, when she is communicating, is trying very hard and it is her interest and awareness of what is going on that makes it convincing."(23)
Mr Justice Jenkinson preferred the evidence of Miss Crossley, supported as it was by that of Dr Graves and Mr Healey, a psychologist, to that of Dr McGinn. 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." (24)
On 17 May 1979, the day on which His Honour ordered that the respondents not hinder the departure of Ms McDonald from St Nicholas Hospital, she left court with Ms Crossley and her partner, Mr Borthwick. She has lived with them ever since. From the time she left St Nicholas Hospital aged eighteen, she started to grow at an accelerated rate. She had grown to the size of a seven to eight year old by September 1979, when she was again before the Supreme Court (25), and she reached normal adult size in her mid twenties. She graduated in 1994 with the degree of Bachelor of Arts from Deakin University.
Very shortly after winning her first Supreme Court case and starting to live with Ms Crossley and Mr Borthwick, Ms McDonald had to cope with a further challenge to her capacity. Her affairs had for some time been in the control of the Public Trustee on the ground that she was an infirm person. The Public Trustee asked the Supreme Court to advise whether he should consent to Ms McDonald and Ms Crossley entering into a contract with Penguin Books as joint authors of a proposed book describing Ms McDonald's experiences in St Nicholas Hospital. The book eventually became Annie's Coming Out (26) and was made into an award winning film of that name.
Mr Justice Murphy delivered an unreported judgment in that matter on 25 September 1979 (27) ("McDonald (2)"). He had used powers under s.39(c) of the Public Trustee Act 1958 (Vic) to direct the Senior Master to personally examine Ms McDonald to satisfy himself whether she was of unsound mind or infirm, and to report back to the Court.
Senior Master Jacobs reported on 20 September 1979. He concluded:
"At the end of the inquiry I was completely satisfied that Miss McDonald is not mentally infirm."
The Senior Master reported that in the few months between May 1979 when Ms McDonald left St Nicholas Hospital and September 1979, she had grown from the size of a five year old to that of a seven to eight year old. In his reasons for concluding that Ms McDonald was not mentally infirm, Senior Master Jacobs referred first to his questioning of Ms Crossley and his observations of her. He made very positive findings about Ms Crossley, saying:
"Miss Crossley's demeanour throughout, and her answers under crossexamination, and to me, completely satisfied me that she is an honest person, with a sincere desire to help, rather than to exploit her protégée. Not only did I form that opinion of her, but also the opinion that she has a genuine dedication towards the goal of improving the lives of cerebral palsy victims in general, as well as that of Anne McDonald in particular. Her talents and abilities in that direction, are, I believe, very considerable. That is not to say that she is oblivious to the possibility that she may make a personal gain. She conceded that she may do so. But I am quite satisfied that if any such motive exists it is of a secondary nature, and that she has not set out to exploit Miss McDonald." (28)
The Senior Master reported to Murphy J that he had decided to conduct a simple experiment, namely to have Ms Crossley leave the room and to ask Ms McDonald a question in her absence. He described the procedure:
"On Miss Crossley's return, the alphabet board was set up and used with Miss Crossley supporting Miss McDonald's arm. The latter indicated her nonconcurrence with the making of the experiment by spelling out the words 'I don't like anyone suggesting that my communications are not mine', which had nothing to do with the question I had asked." (29)
On the next day the experiment was repeated with a similar result. In his reasons, Senior Master Jacobs explained that, on the third attempt he first spoke to Ms McDonald alone and advised her why it was considered necessary to make the experiment.(30) He continued:
"She indicated, by use of her tongue, that she understood what I was saying. At first, when the experiment began she was again reluctant to cooperate, and seemed in doubt as to whether she ought to do so. Eventually she slowly spelt out the first three letters of what looked likely to be a correct answer, and then would not go on. Finally, she completed the test with a sufficiently correct answer to satisfy everyone that the answer had to be her own answer and not that of Miss Crossley, who could not have known what it was." (31)
The Senior Master had asked Ms McDonald to spell two words, namely "string" and then "quince". She spelt "string" and "quit" but that was enough for the court. (32) The substitution of "quit" for "quince", it is suggested, revealed Ms McDonald's attitude to the testing and her intelligence.
Senior Master Jacobs' sensible and appropriate strategy of advising Ms McDonald, after two failed attempts, why it was necessary to make the experiment, was crucial to the success of his experiment. In so doing, he was telling Ms McDonald that he recognised her as an intelligent person, and that he recognised the emotional problems she was facing in complying with a request, which she considered demeaning. He also pointed out to her the effect her attitude had on Ms Crossley's reputation. Had he not been so persistent and perceptive, his testing would have recorded a failure to communicate and thus reinforced the misconceptions that Ms McDonald was severely retarded and that Ms Crossley was a cheat. Ms McDonald has since explained her attitude to testing around that time of her life: "It was foolish but not being sleek and fat I had only my pride to live for." (33)
On the basis of Senior Master Jacobs' report, Murphy J ordered the Public Trustee to sign and seal a certificate to the effect that Ms McDonald had ceased to be an infirm person for the purposes of the Public Trustee Act 1958. The main thrust of Dr McGinn's evidence in McDonald (1) was contrary to the interests of Ms McDonald, and was not accepted by Mr Justice Jenkinson. It has since been shown to have been based on an incorrect opinion that Ms McDonald suffered from dwarfism, which is a sign of bilateral hemiplegia. However there is one part of his evidence which is correct and should be borne in mind throughout this paper. He was asked whether the usually accepted method of ascertaining mental retardation is by psychological assessment of the individual concerned. He replied: "That depends on the degree of development that the person has. It is impossible to psychologically assess people who have no form of communication." (34) (emphasis added)
That is a very important passage and something which it is unfortunate that psychologists have subsequently often overlooked. If a person cannot reliably communicate without facilitated communication, and if communication with facilitation is not accepted in psychological assessments, then it is impossible to psychologically assess that person.
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.
[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
with Mark, referred to in the Minutes of the Eisen Committee of 13 July
1979. Leonie, who correctly answered the questions about Isaac Newton
his dog, Diamond, and Noelene who the Minutes of 13 July 1979 stated
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
Because their means of communication has not been recognised they have
not been provided with adequate appropriately trained staff, and have
been able to use their communication in their educational placements.
have very little opportunity to communicate in their daily lives and
little control over their lives. (67)
The Intellectual Disability Review Panel Report
In 1985 the Federal and State Governments agreed to fund a project to establish a Communication Assistance Centre under the auspices of DEAL (a charitable association founded by Ms Crossley and supporters of her work in 1977, when she first discovered ways of teaching and communicating with nonspeaking people). The letters DEAL stand for dignity, education and language. Ms Crossley was appointed as the first project coordinator leading a multidisciplinary team of therapists and technical staff working to establish communication methods for adults and children who, because of physical disability, are unable to speak. (68)
In about May 1988 a document, which has become known as the "Statement of Concern", and which described facilitated communication as "covert deception" and was an attack on Ms Crossley and DEAL Communication Centre, was compiled by a group of health professionals who called themselves an "Interdisciplinary Working Party on Issues in Severe Communication Impairment". It was distributed to politicians and eventually the governmentappointed Intellectual Disability Review Panel ("IDRP") was asked to investigate the validity and reliability of "assisted communication" as used by DEAL Communication Centre. The IDRP in March 1989 published its report: "Investigation into the Reliability and Validity of the Assisted Communication Technique". The report is frequently cited by opponents of facilitated communication as establishing that facilitated communication is not genuine communication. (69)
In fact the IDRP report does not establish that at all. Six clients participated in the investigation by the IDRP, three in a "controlled study", and three others in a message passing exercise. The following points need to be made:
1. Of those six clients, all of whom had previously been assessed as intellectually impaired, the summary of the report states "The validity of communications using the 'assisted communication technique' was demonstrated in four of the six clients".(70) (This means demonstrated by spelling correct answers.)
2. All clients who were given the message passing test validated their communication. (71)
3. Of the three clients who participated in the controlled study using headphones, the report acknowledges that one client [client 2] showed "valid uninfluenced responses" although it claims that client also showed "influence". (72)
4. The two clients who were regarded by the IDRP as not having validated their responses also gave "expected answers" to questions asked of them which were not asked of their facilitators. (73)
5. If it were not for technical problems with the equipment used, those responses would have validated the communication of those two clients. Thus what failed the assessment was the test design and equipment, rather than the client's communication. (74)
6. When the technical problems with the testing of clients 1 and 3 in the controlled experiment were discovered, the following assumptions were made:
(i) that because of failure of the earphones to operate correctly, the facilitators had heard sufficient of the questions asked of the clients, which they were not intended to hear, to answer the questions themselves. The report does not state that this was verified with either facilitator.
(ii) that the same failure of the earphones to operate correctly had not enabled the clients to hear the facilitator's questions, although client 1's facilitator conjectured that perhaps he had heard her questions, (75) and he later stated he had done so. (76)
(iii) that the two facilitators for clients 1 and 3, both of whom were competent people, who understood the test design and were cooperating with it, had defeated the purpose of the test by themselves answering a question the client did not hear. It should be borne in mind that they both cooperated, to the extent of telling the testers when they could hear parts of the clients' questions. Why would they have done that if they were intending to answer the client's questions?
7. When the tests of clients 1 and 3 on the controlled study were rerun, additional variables were introduced to the testing process. First the clients were more tired. Client 1 had already answered seventeen questions correctly (including two asked of his facilitator) before he was retested. Client 3 who the report states made "very slow" progress and who "required frequent prompting to keep on task" (77) had answered seven questions. Secondly, both clients 1 and 2 may well have been angry that their first correct performances were not accepted. (78)
8. In the second test the decision that client 1's answer showed "facilitator influence" depended on a mere "attempt" to answer a question. (79) As to client 3, the conclusion depended on supposition and one answer to the facilitator's question.(80)
9. The report acknowledges the value of facilitated communication to those who use it, and their families. It states:
"1.4.4 EMOTIONAL AND BEHAVIOURAL CONSEQUENCES A consistent theme and often repeated observation by many parents supporting the 'assisted communication technique' was the significant positive behavioural changes which occurred as a consequence of participating in the program at DEAL. This was said to be particularly relevant for clients who have autism and other clients who have behavioural or emotional problems, short attention span or difficulties in relating to people. . . . The changes in behaviour have been in some cases so marked and beneficial that they have significantly contributed to an enhanced quality of life for the client and the whole family. For this reason, at least one parent expressed the view that identifying the reasons for the change or establishing the validity of the communication were ultimately irrelevant." (81)
10. The account in the report of the message passing tests clearly demonstrates the word finding problems which interfere with controlled experiment testing, and gives a client's own explanation as to why he wanted facilitation even though he could type independently. (82)
Before discussing some of those matters in more detail, it is helpful to mention some problems with the process and procedures used by the IDRP.
(i) Failure to allow DEAL to be present at all testing sessions
The terms of reference specifically stated that the IDRP was to investigate the validity of: " 'assisted communication' which is widely used and promoted by DEAL communication centre." In spite of this, the IDRP rejected DEAL's submission that it be allowed to be present at all IDRP testing sessions.
(ii) Problem with test design
The IDRP at first proposed an experimental design which involved DEAL clients, all of whom had, at one time, been assessed as intellectually impaired, and had thus led sheltered lives out of mainstream schooling, being asked the same ten questions eight times. DEAL, with its knowledge of its client group, before any experimenting was done, in a written submission warned the IDRP of the unsuitability of the test design. It commented:
"A reasonable test of the design would be to try it with a randomly selected group of twentyfive nondisabled young people in Broadmeadows. . . . People who use assisted communication are, by definition, not ordinary people. . They communicate slowly and with difficulty, and the effort and time involved in answering ten questions even once is considerable. It is difficult to imagine that they would consider answering them twice, let alone eight times. . . . augmentative communication is assisted by feedback; the communication partner will normally be able to say 'is that the one?' or to repeat the message or question aloud to refresh the client's memory - 'Speech Pathologists accustomed to working with this population continually repeat the nonspeaking person's utterance thus far...'. This is certainly the usual practice at DEAL. If the nonspeaking person is wearing earphones this is impossible. . . ." (83)
DEAL recommended that the proposed procedure be abandoned and that efforts be made to monitor genuine communication occurring naturally at home, school or centre. Subsequently the IDRP did modify the design. First it recognised that asking ten questions in each of four conditions twice may be too much. It proposed asking only three questions "per condition". Secondly, it added the "message passing" test. The IDRP acknowledged (84) that "the shortened methodology was considered to be more appropriate", but nonetheless some of the subjects on the controlled study were asked more than three questions in each condition. Client 1 was asked ten questions in condition A, client 3 was asked five. This is not explained in the report.
The controlled experiment provided for clients to be asked questions in the following four conditions:
Condition A - Questions asked by facilitator in direct speech
Condition B - Same questions asked of client and facilitator. Client hearing question from speaker of tape recorder - facilitator hearing it through headphone.
Condition C - Different questions asked of client and facilitator. Client hearing through speaker of tape recorder; facilitator through earphones. The tape for conditions B and C was combined.
Condition D - Client hearing questions through a loudspeaker; facilitator hearing only music.
The second modification of the proposed test design was the addition of "Design No 3" which was described as follows:
"Information was given to the client out of hearing of the assistant who then returned to the room and had the message conveyed to her by the client via assisted communication." (85)
This is what DEAL calls message passing and is the method successfully used by Senior Master Jacobs in McDonald (2).
The actual testing
(i) The controlled experiment
Client 1 - [Boy] (86)
As already stated, client 1 had two trials. In the first trial he was asked ten questions and answered them correctly. (Why ten questions rather than only three?) As to conditions B and C, the report states:
"Conditions B and C - First Trial
Conditions B and C were conducted together. After two questions of Condition B and three questions of Condition C, the session was interrupted by the assistant who reported that the client was not able to keep up with the recorded questions and that the recorder would need to be stopped between questions to allow more time to respond. The trial was subsequently rerun from the beginning.
Condition B - First Trial
Two questions were asked under Condition B and these were correctly answered.
Condition C - First Trial
Three questions were asked under Condition C and the client responded to both his and the assistant's questions on two occasions. The client responded correctly to his third question. The assistant did, however, acknowledge that she could hear parts of some of the client's questions and the questions by this stage were not synchronized, thus increasing the likelihood of the assistant hearing the last question in this trial." (88) (emphasis added)
There is no suggestion made that the facilitator could have heard the client's first two questions in condition C, but for some reason client 1 was not given credit for his answers to those questions. When the test was rerun, he did not answer any questions which were different to those asked of his facilitator. The report states as to condition C:
"An attempt appeared to be made to the next question. However, the response was to the assistant's question, not to the client's question. Subsequently the client did not respond meaningfully to any further questions, except to print random sequences of single letters of the alphabet." (88)
The report does not let the reader know whether the "attempt" was unambiguously only the answer to the facilitator's question. As so much seems to hang on it, both the question and the "attempt" should have been set out. When asked privately after the testing had concluded, why he had answered the facilitator's questions as well as his own, the client said, because he had heard them. (89) He is autistic and it is reported that some autistic people have particular senses developed to a very acute or "hyper" level. (90) It is unfortunate that the test did not continue with an explanation being given to the client that he was confusing the testing by answering both questions and so it would be better if he only answered his own. Instead the test was rerun but the client did not cooperate. When client 1 gave up any attempt to answer questions, was he offended that his smart trick of answering both questions had not been allowed to continue, was he tired, or was he just feeling emotional? The IDRP concluded as to client 1:
In the first trial, the client responded to both the client's and the assistant's questions. In trying to explain why the client answered the assistant's questions in Condition C as well as the client's, the assistant conjectured that the client may have overheard the assistant's questions through the earphones as the client had acute hearing. The assistant also reported being able to hear some parts of the client's questions some of the time.
The possibility of the client being able to hear the assistant's questions was later investigated by audiometric testing of the headphones. The results revealed that while there were vibrations, actual sounds or words were not able to be distinguished. It was, therefore, highly unlikely that the client was able to hear and respond to the assistant's questions. It is concluded therefore that the assistant may have influenced the response to these questions.
No conclusions can be drawn regarding the client's communication from either of the two trials of Conditions B and C and Condition D. Although the client responded correctly to his questions in the first trial of Condition C (as well as to those of the assistant) it was unclear as to whether the assistant had also heard the client's questions.
Therefore it would appear from the findings that it was not possible to demonstrate that the client gave correct responses independently. The results do not mean that the client was not able to communicate and further investigation is warranted." (91)
It appears from the IDRP report that the audiometric testing of the headphones made no allowance for the abnormal neurological functioning of some people with autism. (92) Nor did it explain why or how the facilitator would have heard the client's questions as well as her own, even though she was wearing headphones. Either way, the headphones were not operating as intended. Client 1 was penalised because the equipment was not functioning correctly. His facilitator said she had heard part of some of his questions. The IDRP report does not state that it asked whether that part was sufficient for her to have known the answer to his questions. Nor does it give any explanation as to why the facilitator would have answered both her own and the client's questions even if she had heard them both.
As the IDRP stated that "further investigation is warranted", client 1 should have been offered the chance to demonstrate the validity of his communication by using message passing.
After the testing Client 1 reached a stage of typing totally independently but, due to changes in his living circumstances, he is no longer involved in a communication program. (93)
Client 2 - [Boy]
The IDRP recognised that client 2 had correctly answered two questions which had not been heard by his assistant. It accepted that this was exceedingly unlikely to have occurred by chance. It is interesting to note that here again one answer in condition 3 appeared to be an answer to a question asked of the facilitator but the IDRP did not allow that fact to cloud the "correct" answer to two questions the facilitator had not heard. (94)
The fact that both clients 1 and 2, as well as answering their own questions, did answer one or two questions asked of the facilitator in condition C, seems to raise a problem with the whole experimental design. Does it mean that both these clients could hear the questions asked of the facilitator?
Client 3 - [Girl]
In condition A this client very slowly gave three correct answers. In condition B she gave the first letter of one correct answer and that was considered sufficient. On the first trial in condition C she answered three questions - one answer was the expected answer, the others were not expected answers but neither were they the answers to the facilitator's questions. Thus she proved her communication with one answer in condition C, and did not show any facilitator influence on her first trial, even with her two unexpected answers. (95)
However, once again, because of technical problems with the synchronisation of the tapes, the one correct answer was discounted. The report states:
"As the client needed to be constantly prompted verbally by the researcher and the questions needed to be repeated, it was decided to let the assistant's tape run on and act as an auditory screen for the researcher's prompts. This meant that the assistant's questions were not synchronized to the client's questions and she was receiving her own questions and music as the tape ran on. However, at one point when the researcher was attempting to resynchronize the tapes, the client's question was not fully screened from the assistant." (96)
The report does not expressly state whether or not that question was the one which the client answered with the expected response. If it was not, it does not give any basis for discounting the client's one correct answer in condition C in the first trial. If it was, it does not explain why the facilitator (a different one from the ones used for clients 1 and 2) would have answered the client's question. Once again technical problems led to a presumption of incompetence on the part of the client and lack of integrity on the part of the facilitator. An assumption of competence and integrity on the part of the facilitator would have led to the opposite explanation.
Again, a second trial was arranged for client 3 in which time was allowed for repetition of each question asked. In condition A five questions were asked and expected responses were given each time (one might ask why it was necessary to ask five questions - how long that process took - how tired the client became). In condition B the client answered two out of three questions - both answers were the expected response. In condition C the client gave three answers, none of which was the "expected response". (The IDRP report does not state whether only the "expected response" could be a response to the question asked.) One of the three answers was the answer to the facilitator's question; the other two were answers to other prepared questions but not those asked.
As to client 3 the IDRP concluded:
"Although it was not possible to demonstrate the validity of the client's communication, it was not possible to demonstrate that the client was unable to communicate. The client required constant prompting to elicit a response and this included verbal prompting to press the keys of the Canon Communicator. It is possible that this client may still be in the early stages of communication development. Further assessment and a review of progress needs to be undertaken within the broader context of the client's learning and developmental goals within six to twelve months. Ongoing services for this client are essential." (emphasis added) (97)
Why was this client, too, not further assessed using the message passing test?
(b) Message passing
The section of the report which describes the message passing part of the study establishes without any doubt that facilitated communication provides a method of genuine communication for people with severe communication impairment, and that the people involved had the intellectual ability to spell out answers. Facilitated communication is very important because it provides an efficient means of communication of more than a "Yes"/"No" response for people who otherwise have no efficient means of communication. This section of the IDRP report also provides clear indications of the word finding difficulties which may well be an explanation for some of the "test failures", i.e. the unexpected answers in some controlled experiment tests where the first word typed out is not the "expected response".
The description of client 2's responses is significant because it shows how even a client who can type independently preferred to type with hand contact from the facilitator. The wellknown author and neurologist, Oliver Sacks, and a best selling author with autism, Donna Williams, have suggested why facilitation may be required by some autistic people.
Oliver Sacks has written:
"The most recent and controversial of these methods is facilitated communication. FC (originally used with children with cerebral palsy) is based on the notion that if the hand or arm of a nonverbal autistic child is supported by a facilitator, the child may then be able to communicate by typing or by using an electronic communicator or letter board. The underlying thought is that such children may have a difficulty in initiating movements (akin to that of Parkinsonism), and that a light contact with another person may allow them to overcome this and achieve a normal motor facility (as may occur with touching, or even visual contact, in some Parkinsonian patients - I discuss this in Awakenings, footnote 45). The hope is that there may be, in at least some otherwise inaccessible patients, a rich but 'imprisoned' world of thought and feeling that may now be released by this simple tactic." (98)
Donna Williams states:
"Now, consider the . . . case in which one is consciously aware and voluntarily responsible regarding (internal) self but unaware of (external) other (including one's own hand). The prompting touch of a facilitator may be essential to getting the person [with autism] to use his or her hand as a tool to communicate this awareness . . ." (99)
The IDRP report reads:
"2.5.6 RESULT OF MESSAGE PASSING EXERCISE
It was decided to conduct the message passing exercise by offering a suitable gift to each client which the researcher presented in the absence of the regular assistant.
It was planned that, after a suitable time passed in discussing the gift, the assistant would return to the room and ask the client, quite naturally, what happened in her absence.
Client No. 1 - [Adult male]
The gift presented to this client was the guernsey worn by the Footscray Football Club, which prior inquiry had established was the client's favoured team (erroneously as it subsequently transpired). The client was delighted with the gift which was promptly tried on for size but which he later indicated was of the wrong football team. This was communicated with the regular assistant out of the room and with the mother acting as the assistant.
When the regular assistant returned to the room, the client had difficulty in expressing the precise nature of the gift but was able to communicate other related and appropriate items of information of which the assistant could not have been aware. The client conveyed to the assistant that it was the wrong football team and also indicated the team which the client did support, although this was conveyed amidst other inaccurate information such as the item of clothing.
The validity of the client's communication using the 'assisted communication technique' was demonstrated. Problems of interpretation did occur at the same time and it was not possible to say with any assurance the significance of some of the statements.
Client No. 2 - [Boy, age 15 approximately]
The procedure adopted with this client was slightly different in that the Panel Member and research assistant took the client to a shop to drink coffee and, whilst there, bought chocolate Easter eggs. The client also indicated that he would like 20 cents to buy 'smarties' from a selfserve container on a counter. He persisted in his request until he succeeded, which entailed engaging the help of a waitress. During this time, a gift of a black Tshirt was also presented.
The client was able to type independently and immediately on returning to the assistant's setting, the client typed out unassisted the words which related to his experiences, such as '20c smarties', 'chocolate' etc. Some time later he apologised through assisted communication for his insistent behaviour at the shop in trying to obtain the smarties. The assistant was clearly unaware of any of these incidents.
In communicating with his assistant, he took a long time to print out the exact description of the gift he had been given. Instead he typed out related words - scarf, sox etc - but did not convey an accurate description of the Tshirt until some time had elapsed and after several prompts had been given by the researcher. He also described the colour of the Tshirt incorrectly by typing several alternative colours first - blue, red, mauve etc - until he finally typed 'black'. It was noted that at the first attempt he typed 'B' and 'L' and hesitated for some time before proceeding and completing the word 'blue'.
The situation was similar when the researcher suggested that he tell the assistant what was bought in the shop. Instead of typing out 'chocolate easter egg', which was the expected response, he typed 'chocolate freddo frog'.
It was interesting to note that the client (as with Client No. 1) was often unable to access the precise word in the first instance, although he could type words from the same category, e.g. when trying to describe the Tshirt, other items of clothing were first given - scarf, sox - and 'chocolate freddo frog' instead of easter egg.
This phenomenon was also experienced with at least one other client when he typed other articles of clothing when trying to describe 'football guernsey' and other football teams when trying to describe his preferred team.
Although the client could type independently, he would often reach for the assistant's hand and place it on his. During the course of the social interchange, it was also decided to inquire of the client what was the function of the assistant's light touch of hand during typing. In response to a series of questions about this issue, the client wrote:
'I need to like you before I feel com ......'
'I get nervous .......'
'... confidence ...'
'We all get upset if work is hard.'
'It s only getting my thoughts out ......'
'... security ...'
It was clear that this client could communicate independently but preferred to do so with an assistant at times. This client's ability to communicate whilst using assisted communication was also clearly validated.
Client No. 3 [Boy, 13 approx]
. . . At the second session, the client was presented with the gift of a book entitled 'The Man from Snowy River' which was given to him while the assistant was out of the room. When the assistant returned, the client was asked to tell the assistant what gift had been presented to him. After some discussion, using assisted communication, about whether he would continue to participate in passing the message, (100) he subsequently agreed and responded to the request by typing the words 'a book' and 'early days'.
It is clear from the above message exercise that this client's communication whilst using assisted communication has been confirmed."
The report concluded that the validity of communication while using the assisted communication technique was demonstrated in four of the six clients who participated in the two studies, but that in all three cases of the controlled study, client responses were influenced by the assistant. That may not be correct (if the clients could hear their facilitator's questions), but even if it is so, it is surely not a reason for avoiding the use of assisted communication with people who have no other adequate means of communication. The results indicate a need, while using assisted communication, to find a means of checking with the client, for instance by using a "Yes/No" response, any message as to which there is some doubt. (101)
The report did state:
"In summary, for the clients whose communication was validated, it appears that the use of the 'assisted communication technique' has greatly contributed to their progress into regular schools." (emphasis added)
It is unfortunate that the two clients whose communication was not regarded as validated were not given the option of a message passing test. As a result of widespread misunderstanding or misrepresentation of the IDRP report, (102) it has played a major role in the cessation of the use of facilitated communication in many institutions in Victoria. Thus clients who could have communicated with facilitation and used it as a step to progress to independent communication, have lost that means of reducing the disadvantages of their disabilities.
A very worrying aspect of the whole issue of validating facilitated communication is the way in which the debate has been hijacked by those asserting a false reliance on scientific method. They claim that there must be a controlled method of checking the validity of any form of communication. That is already incorrect. Speech is not tested in a controlled sense, nor is spoken communication free of influence from those with whom or in front of whom we are conversing. Then those asserting the reliance on controlled tests propose a form of validation which introduces significant problems both in its use of technology and its emphasis on word finding skills. It is well known that the creation of a test situation frequently changes the circumstances which are to be tested. (103) The problems inherent in the test design were emphasised by defective technology. Even without that factor, Williams in her article has explained the effect a test situation can have on an autistic person:
"Such a person, in practice, may have only subconscious awareness and automatic responsiveness of self. In a relaxed flexible FC situation, such a person may be able to express fluently, receiving feedback and conscious awareness through the reading process as the words come back through the eyes. Introduce a tester with a rigid format into this situation and the FC user may be pushed to become consciously aware of his or her actions in a way they have never been able to function and this case is doomed to 'fail' the test." (104)
Facilitated communication is too important for people who otherwise cannot communicate to be abandoned on the results achieved by inappropriate testing procedures.
In the light of those comments and the positive findings as to four
of the six clients seen by the IDRP, it is disappointing that the
was somewhat equivocal, and even more disappointing that it is often
as confirming the lack of
validity of facilitated communication.
CHAPTER 5 - "Carla"
The next episode in the saga concerns a woman diagnosed as intellectually retarded who is known in the media as "Carla". Her affairs were the subject of a hearing before the Guardianship and Administration Board of Victoria (the "Guardianship Board") in February 1992 (106) and received a great deal of media attention. The events leading to the proceeding and the proceeding itself, had distressing consequences for "Carla", for her family, and for DEAL Communication Centre.
As is so often the case when communication is challenged, the issue arose because of an allegation of sexual abuse. Such allegations create special difficulties for the system of justice even in cases where there is no communication difficulty. (107) Staff at the Adult Activity Unit, which Carla attended, reported that she had alleged, using facilitated communication, that her father sexually abused her. The matter came before the Guardianship Board after Community Services Victoria ("CSV") had informed the family of the allegations and had twice arranged a placement for Carla away from her family home. Carla's family doubted her capacity to communicate using facilitated communication and her mother applied under the Guardianship and Administration Board Act 1986 (Vic) to be appointed her guardian. The Board rejected the evidence that Carla had the capacity to communicate.
The Board's reasons (108) state that on the very day that Carla was first placed in respite care, Friday, 21 December 1990, Ms Crossley (immediately on hearing of the allegations on her return to Australia from an overseas trip) had warned the Regional Manager of CSV that, in her experience, "some intellectually disabled people may lie using facilitated communication". Of course some people may lie using any method of communication. Ms Crossley said, in a paper she wrote in response to the Guardianship Board decision, that as soon as she was advised of the allegation:
"I responded that I was sure [Carla] could communicate by typing but I was not sure she was truthful." (109)
Ms Crossley has explained that the reason for her reservation was that Carla had once communicated to her that she had been on holiday in Queensland, when Carla had not been away but others at her Adult Activity Unit had been to Queensland. (110)
The Board in its reasons considered the results of psychological testing it had commissioned by two psychologists, one of whom, Mr Catanese, was already well known to be opposed to facilitated communication. He was a contributor to the socalled "Statement of Concern", (111) the Preface of which uses the term "covert deception" in speaking of facilitated communication. How a contributor to that document could be regarded by the Board as an impartial witness is difficult to understand. The other psychologist, Professor Hudson, tested Carla using the Wechsler Adult Intelligence Scale and the Stanford Binet Intelligence Scale. The Guardianship Board said in its reasons for determination that those tests were modified to account for Carla's verbal impairment, but it did not explain what modifications were made or which tests were administered or how the testing allowed for physical impairment. In spite of those problems, Professor Hudson concluded:
"the testing completed allowed it to be concluded with confidence that Carla's level of intellectual functioning is in a severe to profound range of intellectual disability." (emphasis added) (112)
The report does not indicate whether Professor Hudson established any and what form of communication with Carla. Remember Dr McGinn's evidence in McDonald (1) that "It is impossible to psychologically assess people who have no form of communication"? Professor Hudson did not allow such considerations to disturb the confidence with which he expressed his conclusion.
Another psychologist, Ms Leonard, was asked to review Professor Hudson's assessment. She concluded
"Intellectual level found with psychological testing and adaptive behaviour assessed through family and caregiver respondents are all commensurate in indicating a severe level of intellectual disability as far as those assessments have gone." (emphasis added)
The difficulty, of course, is to find a way to measure responses of people who have verbal and also purposive movement disabilities.
The Board also considered the results of "validation testing" of "Carla", using the "controlled experiment" approach, undertaken by Professor Hudson, Ms Melita and Mr Montagna, at the request of the Office of the Public Advocate. One can only wonder why, although the IDRP had more success in establishing genuine communication with message passing than with the socalled "controlled experiment", Professor Hudson, Ms Melita who had chaired the IDRP, and Mr Montagna attempted to validate (or invalidate) Carla's communication using the "controlled experiment" method. The facilitator used was untrained. Questions were asked in four conditions. Only in condition (a) where questions were asked in direct speech and heard by the facilitator, did Carla answer all questions correctly. In conditions (b), (c) and (d) Carla and the facilitator both had to listen to the questions through headphones. In condition (b), Carla and the facilitator both heard the same questions at the same time. Yet Carla only answered four correctly. If these were her answers they show:
(i) that she can spell. Therefore the "severe to profound" assessment of intellectual disability is questionable;
(ii) that because the performance was so much less good than in condition (a) it is probable that there were problems for Carla in the headphone method, or that she was fatigued;
(iii) that the facilitator was probably not answering the questions - if she was doing so, why would they not all have been answered correctly as in condition (a)?
Carla was regarded as answering no questions in conditions (c) and (d) "correctly" (i.e. where the facilitator could not hear her questions) but, as her solicitor, Ms Alexander, submitted to the Board:
"[T]he answers in the facilitation validation assessment provided by Carla were not necessarily incorrect. In many instances, they were statements of commentary indicating that she was tense or that the assessment procedure was unjust." (emphasis added) (113)
These answers should have led Professor Hudson and his cotesters to call a halt to the testing. If Carla consented he could instead have tried message passing or some other method of validation. In considering the validity of so called "controlled experiment" attempts at validation, it is essential that all the data, including questions asked and responses be set out in reports and reasons for decision. If a person indicates that she considers the procedure is unjust or says she is too tense to cooperate then the test cannot in fairness continue.
It is disappointing that in The Matter of Carla, although the IDRP in its report said of the controlled experiment: "Whilst the methodology may provide data to confirm a client's communication it may not be automatically presumed that absence of data confirms the reverse", (114) Ms Melita, who had chaired the IDRP, joined with Professor Hudson in concluding that the testing there showed "that Carla cannot validly communicate using assisted communication". (115)
In her evidence Ms Crossley suggested that facilitator inexperience, fatigue, strange circumstances, the technology and the assessment process itself could all be factors affecting the test results. She also pointed out that all the questions required nouns as the expected answers, and that Carla may suffer from word finding problems (as demonstrated by clients 1 and 2 in the message passing tests for the IDRP). It should be remembered that in the IDRP tests those clients still managed, by the more flexible message passing method of testing, to demonstrate genuine uninfluenced communication. Another factor which could well have contributed to the test failure is the "brick wall nature of the testing" as explained by Donna Williams who is herself a person with autism:
"The person with autism, in my view, learns quickly that the ways of people who do not have autism do not work for them. What is more, I feel they learn quickly that when they attempt to manage or sort out (and, inevitably react to and be frustrated by) their own systems' chaos, people without autism will generally treat their attempts as a 'problem' and will interfere like dentists working with garden tools who refuse to admit their way may not be the only comprehensible and right way of managing things and learning. One result of this may be that people with autism generally learn to 'smell out' the dentists who come along with garden tools and arrogant assumptions. An inability to read body language or intonation or even to comprehend auditory stimuli is not necessary to 'sensing' when a 'brick wall' is approaching you. Many animals have this sensing and it requires neither telepathy nor complex processing. Perhaps one of the reasons that FC users work better with FC proponents than with critics is that the FC user senses the 'brick wall' nature of those with closed-minded assumptions who come, not to be with them, but to test them out. . . ." (116)
Ms Leonard, the psychologist asked to review Professor Hudson's report, had no experience of facilitated communication. It is unfortunate that although she spent "a substantial period of time discussing the procedure and interpretation of results with Professor Hudson" (117) and viewed the tapes of Carla's assessment, she did not consider it necessary to spend any time discussing the validation with Ms Crossley, who was the person supporting the view that Carla could use facilitated communication. Ms Leonard did not see a video of Ms Crossley working with Carla, which was in evidence before the Board. (The Board stated that it rejected that video, even though "Carla" accessed the Canon Communicator independently, because "Carla's shoulder was steadied and the Canon held manually by Ms Crossley and other facilitators".(118) ) Nor did Ms Leonard watch Ms Crossley actually working with Carla or herself use any message passing exercise with Ms Crossley as facilitator. She concluded:
"Whilst some faults have been described in these assessments, it is not very likely that there still remain untapped such hidden abilities as would be required to use the Canon communicator in the manner claimed."
The Board stated:
"The Board was not satisfied that Carla had any reason to deliberately sabotage the one assessment which would guarantee that her messages would be accepted. If Carla could communicate by only one means, and if she had acknowledged the importance of the validation ('entire life in balance') and if she had a sophisticated grasp of conceptual matters, then it is difficult to conclude that she would deliberately thwart the procedure. The Board came to this view as being the only common sense view to take. Carla's tendency to please professionals who had been involved in her life only reinforced the Board's view." (119)
The Board applied cool sensible logic to explain why, if Carla's allegations were true, she would not sabotage the validation assessment. The Board made no allowance for the emotional or neurological problems of people with severe disabilities, who have always been treated as intellectually disabled. Surely, as experts in the field, the members should have known that Ms McDonald, whose entire life was also very much in issue in her Supreme Court proceedings, also "thwarted" the testing procedure before Senior Master Jacobs until, on the third attempt, he persuaded her to cooperate. Why did the Board not make similar allowances for Carla? Such allowances were particularly required because of the responses in her testing in which she indicated her objection to the testing procedure, as referred to by her solicitor, Ms Alexander. (120)
Similarly, the Board seemed to doubt that Carla could have acquired the language and spelling skills necessary to use the Canon Communicator without formal teaching. It disregarded the fact that Ms McDonald, who had also lacked formal teaching, having lived all her life from age three in St Nicholas Hospital with a diagnosis of severe mental retardation, had acquired sufficient spelling and language skills to spell the answers to the Senior Master's questions only four months after her discharge from St Nicholas Hospital.
One very puzzling aspect of the Board's reasons is its discussion of its private meeting with Carla through facilitation. The reasons state:
"Carla then indicated that she lied in making the allegations in 1990 and she apologised for them. Carla's message to the Board was conveyed through facilitated communication."
It is not clear whether the Board accepted all or any and if so which part of that message through facilitated communication. It simply stated:
"The Board noted Professor Hudson's summation that: 'I think that generally she tries to do what is asked of her and looked around - and often seen to look around for support that she had done what was required of her, so I would think that as a general thing she tried to do what people wanted and she tried to do what people asked of her.'
In view of this evidence the Board was satisfied that Carla could not communicate her wishes, because she did not have the capacity to communicate with facilitated communication." (121)
It is hard to see what bearing that evidence of Professor Hudson had on the Board's conclusion.
The Board said (122) that similar allegations of sexual abuse were made through nine different facilitators including Ms Crossley. The Board did not weigh up the different possible conclusions to be drawn from the evidence. The possibilities include Carla telling the truth nine times and lying once. Or did she fantasise nine times and then confess it to the Board? The Board does not seem to have considered either of those possibilities. Instead it concluded that nine facilitators were falsely suggesting that the allegations were Carla's, when they were in fact invented by the nine facilitators. It is a very serious charge to level at nine different facilitators, and so far as the reasons indicate, was not directly put to any of the facilitators. Why did the Board in fairness to the facilitators not only give them the opportunity to answer that allegation, but also give more consideration to whether or not the communication by Carla to the Board, that she had lied in making her allegations, had been correct? It must be more improbable that nine facilitators would lend themselves to deception in a matter like this, than that one person already stated to have a tendency to fantasise would tell lies or fantasise about sexual abuse. Where was the Board's "healthy sense of reality"? (123)
The Board suggested that in future an "independent" panel of experts should check on the validity of communication through facilitated communication. It did not suggest who such "independent" experts should be, but it seems to consider that any person who acts as a facilitator would be precluded from being an "independent expert".(124) The suggestion that anyone who facilitates a message is not independent, is a bit like suggesting that doctors should be disqualified from setting examinations for medical students or that proficiency in a language should be assessed only by those who do not speak the language. Once one excludes all practitioners of facilitated communication from such an "independent panel", the only people left are avowed opponents such as Professor Hudson and Mr Catanese, both of whom are on the record as avowed opponents of facilitated communication. (125)
The Guardianship Board relied on the many assessments that Carla was severely intellectually disabled, without acknowledging that similar assessments had been made of Anne McDonald. The Board also fell into error in accepting the assumption that controlled experiments have a role to play in validation testing. A careful analysis of the IDRP findings, rather than its recommendations, should have shown that such testing usually does not work. (126) Similarly, the Guardianship Board seemed so determined to criticise Ms Crossley that it misunderstood her evidence on very significant matters such as her description of the technique of facilitated communication, wrongly suggesting that she said that the facilitator "guides the fingers" of the subject. (127)
Another worrying matter about the Guardianship Board's determination
is its failure to mention that it had seen a video of Carla's interview
with the police. A video tape of that interview was in evidence before
the Board, but in its reasons it made no reference to the fact that it
had seen Carla point to the words "yes" and "no", without
any physical contact, to back up her messages. (128)
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."
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".
Luckily, not all studies of facilitated communication are conducted by people who persist in imposing an inappropriate method of testing on the subjects to be tested. In 1993 the Division of Intellectual Disability Services of the Queensland Department of Family Services and Aboriginal and Islander Affairs undertook a one year project to investigate the implications of using facilitated communication with nonspeaking people who were diagnosed as having severe intellectual disabilities. There were twenty adult clients and four preschool children involved in the study. On standard psychological testing without facilitation "all clients had test scores within the profound range, i.e. I.Q. less than 25". (165) Twentyfour staff of the Division were trained as facilitators.
The project validated communication with facilitation by analysis of transcripts of such communication. It found:
1. that twentyone of the clients had their communication validated using content and structural analysis; and
2. that proficiency with facilitated communication had led to positive changes in the quality of life for clients able to indicate choices and concerns and an increased tolerance of social contact. (166)
Examples of validation given are:
(i) A teenage girl with autism correctly typed "LEANNE" as the name of her new baby niece - the facilitator did not know the name. (167)
(ii) A client typed a message about knocking jars of coffee off a shelf in a supermarket. Unknown to the facilitator, this had happened on the way to the assessment. This client was autistic and nonverbal and without any form of augmentative communication. (168)
(iii) One client used very unusual phrases with references to "VOW", "EDEN", "SAVIOUR", "GOD", "HELL". It was later found that, although the person lived in a residential unit, he had a religious background. (169)
(iv) A very important validation from the point of view of quality of life was that of a client who commented about the disturbing effects of his medication. A review of his medication revealed that excessive levels had been reached and, on examination by a local eye specialist, it was found that cataracts had developed as a result of a particular medication. This appointment was arranged following a meeting called as a result of the facilitated communication. (170)
(v) A similar validation concerned a client who had been given analgesics for a presumed headache following disruptive behaviour. When asked to spell how she felt to ascertain whether she really did have a headache, she spelt "PAIN IN NOTTY SIDE". When she was asked to point with facilitation to the part of her body which was causing the pain she pointed to the lower abdomen. Subsequent examination revealed an impacted bowel. (171)
(vi) A different quality of life effect was noticed with another client who, at the start of the project, when his mother visited him, escorted her to the gate after only a few minutes. After the mother was told of his spelling skills she and the client exchanged letters. Subsequent visits lasted twenty minutes before the client indicated that his mother should go. (172)
(vii) A client, when asked to spell his name, did not spell the name by which he was known to the facilitator. What he spelt did however match the first three letters of his birth name which had been "dropped" in his time as a client of the Division of Intellectual Disability. (173)
"The assessment by the Queensland project team indicated that 86% of the clients demonstrated skills using the technique which were not apparent without facilitation." (174)
The report makes clear that sometimes clients demonstrated dysfluency, such as typing meaningless letters while searching for the next word, or word finding problems making them unable to access a particular word. One example given is of a client who was looking for the word "piano". Instead she spelt:
"THE SOUND FROM MY FINGERS. TABLE BLACK BUTTONS ON IT." (175)
It also importantly states what some researchers too often seem to forget:
"Facilitated Communication users, like other communicators, may elect to use their communication skills to seek attention, lie, joke, and fantasise as well as tell the truth." (176)
The report gives wise advice on a number of other points. First it explains how important it is to ensure that one has the whole message. It gives the example of a client who would not communicate with a certain person. When asked why not, she spelt out:
"I HATE HER (Pause)"
It was only when she was asked if she had finished her sentence that the client added:
"HOLDING MY HAND" (177)
Another perceptive comment in the report of the project is:
"If comments or instructions of a potentially controversial nature occur, then the draft procedures can be used to assess authenticity and that the person is aware of the consequences of what they have communicated. Their opinion obtained through facilitation should then be given as much weight and authority in making significant decisions as if it were spoken." (emphasis added) (178)
Guidelines for Controversial Communication are set out in the report
and suggest a useful approach to this difficult issue.(179)
Luckily internationally the picture is not so gloomy as in Victoria where the combination of the Wallace decision, the misunderstood and misrepresented IDRP report, the Ombudsman's reports and the current government cuts have all but removed facilitation from most institutions.
In America a book "Out of Silence" (180) was published in 1994 by Russell Martin, an established author of one novel and four works of nonfiction. It tells the story of the author's autistic nephew and refers to the role of facilitated communication in helping him find useful language.
In Germany a balanced article was published in "Focus", a very well known and widely read magazine. It gives accounts of individuals who use facilitated communication. (181) One of those is Birger Sellin who wrote a book recently published in Germany. It has just been released in English. (182)
Although courts have on the whole adopted a cautious approach to the use of facilitated communication, there is a recent New Zealand decision where the validity of facilitated communication has been accepted and there are two important Appeal Court cases in the United States. In one of them it was accepted that facilitated communication could be used as evidence in a Court. In the other, evidence given by facilitated communication was accepted and found reliable at first instance. A conviction relying on that evidence was upheld on appeal.
The headnote to Laumalili v S  NZFLR 413 sets out the facts of that matter as follows:
"M, aged 13, alleged that she had been sexually violated by her brother and her father. M was autistic and could not speak. The disclosures had been made through a process of 'facilitated communication' whereby M was assisted in pressing or pointing to letters on a keyboard to form words. Prior to the allegations being made her behaviour had been causing concern at her school. After the allegations were made M was placed in DSW care. A family group conference held in September 1993 had failed to reach agreement with the parents expressing strong views that M should return home. The parents denied that any sexual violation had taken place, stating that there was lack of time and opportunity for either M's brother or father to have violated her. However the medical evidence strongly supported violation having occurred.
Held (making a declaration that M was in need of care and protection)
(1) M's evidence could be relied on, having regard to her good command of language; the evidence that autistic children have little or no imagination; M's demeanour when making the disclosures; M's behaviour since disclosure; evidence from three witnesses that they had smelt semen on M in November 1992; and the medical evidence that M had been repeatedly sexually violated. This could be compared with the parents' evidence which was inconsistent and implausible. In those circumstances the Court was satisfied the grounds for a declaration had been made out.
(2) The validity of the evidence produced by means of facilitated communication was accepted, particularly having regard to the distinctive language used by M in her answers which was consistent with the language and style she used in her written school work."
Judge Frater, in his reasons for judgment, set out the circumstances leading to the making of the allegation of sexual abuse. The paediatrician who treated M saw her for an annual review in April 1992 when she was aged eleven. It was reported to her that "for about 13 weeks M had been very disturbed and indulging in a lot of self-hitting particularly of her head". The mother reported that she seemed very distressed, was clinging very much to her mother and did not allow her to go out of her sight. The mother herself raised the possibility of sexual abuse but could not suggest where or how it could have occurred. On 6 May 1992 an occupational therapist who worked with M regularly reported to the paediatrician that M "seemed to be making comments by means of facilitated communication regarding bed and her father". This was discussed with the mother and later with both parents but it was decided there was insufficient evidence to warrant a referral.
During the rest of 1992 M's behaviour continued to cause concern and even deteriorated. She was seen by a child psychiatrist, but with no apparent effect.
On 13 November 1992 three staff at the centre she attended independently smelt semen on her when they toileted her. Her teacher had noticed the same smell twice before but had not taken any action. Early in 1993 M made more disclosures by facilitated communication which suggested she had been involved in a sexual relationship with her brother. At a meeting M's mother said she thought it was impossible as the brother was out most evenings and a lot of weekends. M was asked what had happened and when. She typed to her mother that it occurred - "In the morning when you took Dad to work"
An experienced social worker then had four interviews with M to assess her understanding and consider her care and protection needs. When she interviewed M, a staff member facilitated the communication using a Canon Communicator. M said the "fucking" had occurred "in his bed very often"; she explained what she meant by "fucking" and explained in some detail what had occurred on two specified occasions. When she was asked "Has anyone else done that to you?" she replied "Dad". She said it had happened with her father when she was ten "lots of times" but had stopped because "Dad got a fright".
On 18 May 1993 M was medically examined under general anaesthetic. The findings supported multiple episodes of penetration rather than a single event. The examining doctor had no doubt that penetration had occurred.
At first after those disclosures M's mother agreed to her being placed in a home in the care of the Department of Social Welfare, but by September 1993 both M's parents were seeking her return home.
The reasons for judgment state:
"[A]t the outset of the hearing Mrs H and Mrs A gave a very helpful practical demonstration of the operation of the Canon machine used by M in the disclosure interviews and also alphabet and number boards which she uses at school." (183)
That appears to have been a very useful step to familiarise the Judge with the procedures which were being described to him. The parents denied that either M's brother or her father could have abused M, although her mother accepted the medical evidence and suggested that she may have been abused by someone else. The mother did not challenge the fact that M could communicate by facilitated communication.
The father denied the authenticity of the transcript as well as denying that he had abused M. He suggested that the physical changes seen by the doctor were caused by constant masturbation.
Judge Frater said at pp420-421:
"I should say at the outset that I accept the validity of the evidence produced by means of facilitated communication. Although lack of experienced facilitators in the Wellington area meant that it was impossible to check M's disclosures using a person who had previously had no contact with her, 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.
However the most compelling evidence that the replies recorded to Ms Walker's questions are M's answers and hers alone is the language used. It is consistent with the language and style used in a story written by M as part of her school work in June or July 1993. . . .
It is not surprising that M uses this type of language when you consider her upbringing. Her mother said that when she was little she read to her the classics 'Great Expectations', 'Passage to India' and 'Mill on the Floss', for example. And when she ran out of classics she read from Encyclopaedias. But can M's words be relied upon? I think they can. They have the ring of truth about them. I say this for several reasons: (1) I am satisfied that M has a good command of language and clearly understood the words she was using. (2) The evidence of Dr Buckfield was that autistic children do not go into flights of fancy. They have little or no imagination and can speak only from their own experience. (3) M's demeanour when she made the disclosures was consistent with the truthfulness of the allegations. She was visibly upset and tearful at times but persisted in getting her story recorded. (4) M's behaviour since disclosure is also significant. She does not like where she is living at the moment. She describes the IHC home in P as a 'roaring hell hole'. And she clearly misses her family, particularly her mother. Yet she has not recanted of her story although she has so much to lose by it. (5) I accept that Mrs H, Mrs N and Mrs A each independently smelt semen on M in November 1992, and that Mrs H did on two earlier occasions. I do not accept Mrs S's alternative explanation for these incidents. (6) Finally there is Dr Shepherd's evidence that M has been repeatedly sexually violated. I accept her opinion that the damage could not have been caused by the use of an object of a similar size to a male sexual organ, as Mr Gibson contended." (emphasis added)
His Honour concluded at p421:
"On the basis of the medical evidence I am in no doubt that M has been sexually violated on many occasions."
He found M to be in need of care and protection.
This case provides an interesting but sad example of one Judge's failure to ensure that the court's role is to help people with severe communication disabilities access courts, rather than to allow Counsel to devise ever more difficult tests to trip them up. In America three early attempts to use facilitated communication in family court cases were unsuccessful. Luz P at first instance, was one of those matters. On appeal the New York Supreme Court Appellate Division gave detailed consideration to the role of interpreters pointing out that the court must be satisfied that the interpreter is expert in the language used by the witness and can communicate with the witness. It said at pp544-545:
"While the particular technique of facilitated communication using keyboards, etc., is a relatively recent phenomenon, the more general problem of the means by which a speechimpaired witness can communicate at a trial has been before the courts in the past . . .
The test for the court in cases such as these is a pragmatic one. Can the interpreter, or in this case the facilitator, effectively communicate with the witness and reliably convey the witness's answers to the court? A determination of these questions does not require expert testimony. To the contrary, the proffered facilitated communication lends itself to empirical rather than scientific proof. Thus, the test proposed by the County Attorney, whereby the court could question Luz outside the presence of the facilitator and then hear her responses through facilitated communication, should adequately establish whether this is a reliable and accurate means of communication by Luz. Factspecific questions can be devised which should demonstrate whether the answers are subject to the influence, however subtle, of the facilitator. If the court is satisfied from this demonstration that the facilitator is 'qualified' to transmit communications from Luz to the court, then the facilitator may be appointed as an interpreter . . ." (emphasis added)
The Court explained that a Frye test (a test of general acceptance in the scientific community) was inappropriate "since the ability of an interpreter, translator, 'signer' or anyone else who transmits the testimony of a witness is not based on a scientific theory". Pointing out that no such test had been used before a Spanish interpreter was provided for Luz's parents, the Court stated, at p545:
"It was enough that the interpreter and the respondents could understand each other and that the interpreter swore to translate accurately."
Like many of the contentious cases in this area (but not McDonald and Wallace), Luz P is a case where the child had alleged sexual abuse. In that context the Appellate Court in Luz P, at p546, cited with approval the following passage from Matter of Marshall R,(185) where an Appellate Court observed:
"The best interests of the child are far more important than some technical objection which, on this record, appears to have little substance. The testimony of th interpreter should have been admitted, and then it would become the duty of the court to weigh and evaluate such testimony in the light of the circumstances under which it was given."
The Court approved the preliminary test proposed by the County Attorney (which was the same as that used by Senior Master Jacobs in McDonald), namely that Luz P be questioned by the Court outside the presence of the facilitator and then convey her answers through facilitation. The Court said that that test "should enable the court to come to a reasoned conclusion as to the reliability of the facilitator without the necessity of expert testimony". The Court sensibly continued, at p546:
"If the court is not convinced that the facilitator is reliable, then that facilitator may not serve as the interpreter. However, such a finding should not foreclose Luz from testifying if a reliable facilitator can be found elsewhere. The DSS will of course have the burden of establishing the reliability of the facilitator at the preliminary proceeding."
When the matter of Luz P was referred back to the Family Court for the testing proposed by the County Attorney, Luz P passed very well. As "The Times Herald Record" daily newspaper of 31 July 1993 reported:
"For the first time in New York state court history, a test was conducted yesterday to determine if an 11yearold autistic, retarded girl is the real author of words she types while a teacher holds her wrist. . . .
In yesterday's test in a small room at BOCES, a table was set up with a cardboard barrier running down the center. The idea was to show the child and teacher a different picture. Neither could see the other's picture. The pictures could be identified by a child with a mental age of about 5. The teacher ignored her own pictures most of the time and looked at the child. She facilitated with a light touch on top of the child's wrist.
Of the 10 pictures that were different from those of the teacher, the child identified five correctly and failed to identify five.
When the teacher and the child were shown the same picture, the child identified six correctly and failed to identify four.
In no case did she give the picture that the teacher saw when it was different from hers." (emphasis added)
When the County Attorney called Luz P's evidence, tragically for Luz P and for facilitated communication too, the attorney for the parents succeeded in preventing the evidence being given. He persuaded Family Court Judge Slobod to impose new conditions on the method of giving evidence.
"The Times Herald Record" of January 12 1994 described that hearing:
"The morning hearing started with county attorney Lewis A. Borofsky questioning the girl.
Conditions for questioning had been agreed upon by the court and opposing attorneys. The teacher would be temporarily deaf by wearing headphones that played staticlike white noise.
The idea was that if the teacher could not hear the questions, she could not answer them, assuring that the answers would truly be the child's.
Borofsky prepared the child for court by practising the method with her in about 20 onehour sessions since September.
First, yesterday, he asked simple questions and the child was able to type several answers correctly, some with no support from the teacher.
Second, he asked more pointed questions leading up to the alleged abuse. The child grabbed her teacher's hand to answer them. Sometimes she stumbled, but mostly she answered rationally.
But then attorney Alan Zwiebel, representing the parents along with attorney John Burke, objected. Zwiebel stopped the hearing, insisting that the teacher was reading the questioner's lips.
He demanded that the teacher not look at the questioner or at the keyboard while further questions were being asked and answered.
Without the teacher able to see the keyboard, the child's answers turned into gibberish."
The County Attorney said: "The court changed the goalposts on me.
The child did great until they changed the rules. Now they want to change them again. Nothing that happened today proves that facilitated communication doesn't work. All they proved is that if you isolate the child from the facilitator, she can't communicate."
He refused to continue testimony under the new conditions. The double request of the attorney for the parents should never have been acceded to by the Court. First there was no reason to believe that the facilitator would have consciously or unconsciously read the lips of the questioner. Some judges, like Judge Gorman in Wallace and Judge Slobod in Luz P and the Guardianship Board in Carla's case, seem to be prepared to believe that there is something disreputable about a care worker or teacher trying to help a disabled person communicate, so as to have his or her voice heard in a Court. Even when there is no evidence adverse to the facilitator at all, they are prepared to believe that there are numbers of facilitators out there prepared to make up false allegations and perpetuate frauds on Courts. Never before in the history of the law have such generalisations been made by Courts about people on the basis of their skills and occupation rather than their personal qualities. How much preferable and more sensible is the approach of Jenkinson J and Senior Master Jacobs in McDonald and that of Judge Frater in Laumalili.
But even if a judge were prepared to believe the worst of all facilitators simply because they are facilitators, why in the world should the facilitator in Luz P have been required not only to look away from the questioner but also to look away from the keyboard while questions were being answered. Once the facilitator was placed so that she could not lip read or hear the questioner, there was no reason at all to prevent her looking at the keyboard. In fact, because of the disabilities suffered by those who require facilitation in order to communicate, it is usually essential that the facilitator look at the keyboard. Sometimes the pointing finger does not rest precisely on one letter but rather between two or three keys and it is necessary for the facilitator to ask questions of the witness to clarify which letter is intended. That is done by asking for a "Yes/No" response to questions such as "Is it the Y?"
It is clear that the test conditions imposed by Judge Slobod went far further than those proposed by the County Attorney and approved by the Appellate Court. Judge Slobod, on 25 February 1994, delivered unreported reasons purporting to explain why she had imposed those further conditions, but nothing in her reasons gives any justification for requiring the facilitator to look away from the keyboard. The fact that, when the facilitator could not look at the board, the answers were complete gibberish shows that facilitated communication does not work under those circumstances. But it was already shown that it did work under other circumstances, even where the facilitator did not know the questions asked. The object of the Court should be to hear the evidence of the witnesses. Why then did it allow a completely unnecessary obstacle to be put up to prevent the witness giving evidence in the only way which her disabilities allowed?
On 25 February 1994 the County Attorney sought to call two witnesses to give evidence as to communications Luz P had made to them by facilitated communication. The attorney for the parents objected. The County Attorney pointed out that in sex abuse cases the Court of Appeals had specifically stated that it is not necessary for a child to testify before a Court but that: "What is needed is out of Court statements and corroboration". He submitted that as Luz P had proven her ability to communicate using facilitated communication, her out of Court statements made that way should be admitted into evidence. Her Honour acknowledged the difficulties in the case. She said:
"The Court is well aware that children who are unable to communicate are at extreme risk of being abused or neglected because they can't tell anyone, and that's what makes this kind of a case so difficult." (186)
Nonetheless she said she was not satisfied the communications were those of Luz when they related to abstract issues. She did not consider asking Luz to verify whether the answers were her own with independent "Yes/No" answers. She dismissed the charges. The matter is now awaiting an appeal hearing.
The most recent case (188) where facilitated communication has been recognised by the courts is State of Kansas v Warden. Sadly this case too, concerned sexual abuse of a young person with a disability.
The boy, known as JK, was twelve years old at the time he gave evidence at the trial of Warden. JK was diagnosed with autism and severe or profound mental retardation. He became a resident of an institution now called Heartspring in 1989. Prior to that he was nonverbal and did not respond to verbal directions. The view was that "in general JK had skills comparable to those of a 'normal' two or threeyearold". By 1992 after about three years at Heartspring he could use sign language for some words, indicate yes and no, respond to commands, and use a picture communication book to indicate his immediate needs and wants. He had good motor skills. In February 1992 Heartspring began using facilitated communication and Therese Conrad, a speech pathologist there, selected JK as one of her first students to use facilitated communication.
As was the case in Laumalili, a change in JK's behaviour first drew attention to him. A residential case manager (not Warden) reported that JK would have tantrums whenever the residential case manager's pants were off and the tantrum would cease when the case manager put his pants on. This behaviour was reported to Conrad the speech pathologist. She did not know how to pursue the issue with JK. She interviewed him with Dr Marks, the director of the Department of Psychology at Heartspring. Several interviews took place. Dr Marks asked questions while Conrad facilitated JK's communication using an Epson real voice communicator.
At the first interview JK was asked if he liked various individuals at Heartspring. He answered "YES" to each until he was asked if he liked Warden. He typed "NO NO NO". When asked what he disliked about Warden, he typed "DON'T ASK". (189)
At the second interview Dr Marks again asked about Warden. JK typed "HUPMQU" which Dr Marks understood to mean "Help Me". He asked what he could do to help. JK typed "STOP MARC SYON PLTASD". When asked to clarify the last word he typed "PLEASE", i.e. he had mistyped "T" for "E" and "D" for "E". Asked to clarify the third word of the message "SYON", JK typed "JJSOON". The message thus was intended to read "STOP MARC SOON PLEASE". On further questioning as to what Marc did, JK typed two messages - one contained the words "PENIS" and "FDHUC", the other had "FUK" in it twice. JK was asked if that meant Warden fucked him and he replied "YES".
On the third day of interviews JK typed that Warden "FUK MSE". He answered "NO" when asked if he meant that Warden administered a suppository (which happened several times a week). Asked what "FUK" meant, he typed "MUK BUTT HURT".
Some of JK's answers were very difficult to interpret but in these three interviews and in later interviews JK repeated the allegations that Warden "fucked" him and made his "butt hurt" and used his "penis" to do so. He repeatedly denied that anybody else did this to him.
Conrad was the facilitator for each interview. She did not wear headphones and could hear all the questions asked. Conrad asked JK if he would convey the information with another facilitator and he refused. The evidence was that when JK was calm he could communicate with support at the forearm or elbow but when he was not calm he needed support at the wrist. He also needed help to prevent perseveration on the same key.
Warden was charged with taking indecent liberties with a child. JK was called to give evidence. Newspaper articles from the "Wichita Eagle", Wichita, Kansas, March 1993, give a graphic account of his giving of evidence and of the attack on facilitated communication in the Court, as well as of the final guilty verdict.
Judge Brooks of the Sedgwick County District Court seems to have recognised, in ways Judge Gorman in Wallace did not, the restrictions caused by JK's disability.
Before JK was called to give evidence Judge Brooks received evidence that because of his condition and his discomfort with anything outside his daily routine, it was not likely he would be able to testify in a court room. The judge took steps to eliminate as many distractions as possible. He restricted further access to the Court, told spectators then in court not to move, and warned all in Court that, if JK began to behave violently, nobody but his counsellors was to touch him. JK, while giving his evidence, had fits of beating his own head, tearing his speech pathologist's hair, stomping and moaning. When he became agitated at the nature of the questioning he darted about the court room. When JK did get upset it took four counsellors to restrain and calm him and eventually the hearing had to be adjourned. Crossexamination took place outside the Court and the jury was shown it on closed circuit television.
Judge Brooks dealt with requests by the attorney for Warden that JK be asked to give his evidence with a different facilitator or with different procedures, with much more perceptiveness than did Judge Gorman in Wallace or Judge Slobod in Luz P. Judge Brooks said:
"[JK] is an individual, I think as an individual we have evidence on the record that familiarity and predictability are essential if he is to have any chance at all of communicating. And for that reason I think there's abundant evidence that to change the protocol at this time is to almost make it a worthless exercise to attempt it." (190)
On appeal three aspects of the giving of evidence with facilitation were challenged:
(i) it was suggested that a different facilitator should have been used;
(ii) it was suggested that the facilitator should have worn headphones with white sound so she could not have heard the questions; and
(iii) it was suggested that the facilitator should have been directed to look away from the keyboard.
The Supreme Court of Kansas appears to have accepted that these three conditions constituted a protocol suggested by Professor Biklen of Syracuse University. He introduced facilitated communication to America after coming to Melbourne to work with Ms Crossley at DEAL Communication Centre. Professor Biklen has written:
"I have never advocated a protocol that involves the facilitator wearing headphones or looking away from the keyboard. My advice to prosecutors as well as to attorneys representing persons accused is to have a second facilitator hear the individual's statements, to see if the person can repeat the allegation, with sufficient detail to confirm that the words typed with facilitation originate with the person using facilitation and not the facilitator." (191)
Professor Biklen did not give evidence in the Warden hearing and it seems that somehow his views were misrepresented to the Court.
However the Kansas Supreme Court, even acting on the (wrong) basis that Professor Biklen recommended those three conditions, very sensibly held:
"The failure to follow the recommended protocol goes to the weight of JK's testimony, not to its admissibility." (192)
In giving his evidence JK used Conrad as his facilitator. He used a "Yes/No" board and a Canon Communicator. Conrad did not wear headphones and heard all the questions. JK was not calm and was supported at the wrist. JK gave evidence that Warden was in Court. He added that Warden had "fucked" him with his "penis".
There was evidence that Warden had been interviewed by Wichita Police Detective Beeson and had told him of an incident when JK had come into the bathroom naked to use the toilet while Warden was in the shower. In the statement Warden said he got out of the shower while JK was urinating and his erect penis rubbed against JK's back. Warden said he moved his penis up and down JK's back and to his anus but did not penetrate. He said he knew how much it hurt to be penetrated and did not want to hurt JK.
There was evidence that Warden had also admitted to a coworker that he was accused of molesting JK and that he had done it.
At the hearing Warden gave evidence. He did not deny having told Detective Beeson that he had rubbed his penis on JK's back and "butt", but he said he had made that statement to bring the interview to an end and get out of there.
Warden was found guilty of the charge of taking indecent liberties with a child. On appeal the Supreme Court quoted the following passage from Judge Brooks' comments at the trial:
"[W]e've had a great deal of scientific testimony here and I don't want to get lost in jargon. To me the DSM-III is an extremely useful tool in categorizing people but people are not their labels. [JK] is more than simply a diagnosis, he is what he is, the diagnosis is the nearest pigeonhole we can find for him. . . .
There is indication that he communicates. And this is before this incident and his communications pointing to pictures, his ability to show affection, and the demonstration of the technique of backward pushing merely keeping him off the keyboard is indicative of other than direction or cuing.
But that having been said there are things about the particular incident which are validating. That the facilitator did not previously know that [JK] was going to make an accusation of abuse, his -- the things typed by him with the aid of his facilitator seem to speak for themselves and there is some detail corresponding to the statements that have been proffered with regard to the penis and the butt. And some independent validations, pointing to names and things like that.
I believe that there is enough -- I'm going to find that there's enough apparent reliability that these things [the out of court statements] may be shown to the jury if [JK] remains unavailable. I also believe and -- that juries are capable of listening to the arguments that [defense counsel] has made about the reliability of this thing.
The Court is not God. I think that there are many things to be argued back and forth about this as to how reliable [JK's] communications are. I am willing to place the faith in the jury, let them hear the evidence and make the argument to them." (193)
The Supreme Court of Kansas quoted extensively with approval from the decision of the New York Court of Appeals in Luz P and agreed with that Court that the Frye test was inapplicable. The Supreme Court of Kansas stated:
"FACILITATED COMMUNICATION is just what its name implies: a method of COMMUNICATION. Unlike the tests revealing that JK is autistic and mentally retarded, which require scientific interpretation of JK's skills and behaviors, FACILITATED statements require no scientific interpretation. The device used produces a typewritten tape of what is entered; the content of the statements are capable of interpretation by lay jurors just as any other form of written English. . . .
However, when statements made using FACILITATED COMMUNICATION are admitted at trial, certainly the credibility of those statements and the weight to be given them are issues for the finder of fact, just as with other types of testimony. . . . The trial court, after holding that Frye did not apply to the admission of FACILITATED statements, permitted evidence challenging the validity of the FACILITATED COMMUNICATION process itself. This was proper." (194)
The Supreme Court did suggest that various measures should have been taken to validate JK's evidence. It referred to evidence that he could independently indicate "Yes" and "No" in the same manner as the general public, by shaking his head up and down for "Yes", and nodding from side to side for "No". The Court suggested:
"JK should have been allowed, indeed required, to independently sign yes and no. Where a person is physically able to do so, the yes/no board and COMMUNICATION device should not be held by the FACILITATOR and should be placed on an immovable surface. . . . Certainly a person should not be disqualified as a witness because of a disability. . . .
Procedures should also be followed during the witness' testimony using FACILITATED COMMUNICATION. Steps should be taken to minimize the potential for FACILITATOR influence or cuing (including the headphone technique described above or having the FACILITATOR look away from the COMMUNICATION device). [As set out above, this comment is based on a misrepresentation of Professor Biklen's recommended protocol.] The witness should give independent responses, without FACILITATION, where possible, such as by using signs or other COMMUNICATION if the witness has such a capability. (For instance, in this case JK could have used anatomical drawings to identify body parts and explain what happened.) The witness must be sworn. The FACILITATOR should be appointed as an interpreter and placed under oath." (emphasis added) (195)
However the Court concluded that even though few of those procedures had been followed at trial, the failure did not require reversal of the guilty verdict. It referred to other evidence that JK's communication with facilitation had been validated at Heartspring. As to the submission that JK had been diagnosed with autism and mental retardation, the Supreme court on appeal said:
"One theory of autism and why FACILITATED COMMUNICATION works with autistic individuals is that autistics have a hidden literacy which has not been discoverable because these individuals have had no means to communicate their intelligence. If JK is able to validly communicate by FACILITATION, there is of course a question about the validity of the tests showing him to be severely or profoundly mentally retarded." (196)
The court concluded:
"The trial court considered all of this information in deciding
that JK's use of FACILITATED COMMUNICATION was reliable. Warden
to the crime, and he made an admission to a coworker, though he
both at trial. More importantly, the jury observed for itself JK's
through FACILITATED COMMUNICATION and could decide what weight, if any,
to give his testimony. The jury heard testimony concerning the
for FACILITATOR influence or cuing and the lack of quantitative
validating any FACILITATED COMMUNICATION. It cannot be said that no
person would agree with the trial court's ruling permitting JK to
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