REVIEW: DWYER, ACCESS TO JUSTICE FOR PEOPLE WITH SEVERE COMMUNICATION IMPAIRMENT

Joan Dwyer has written what is undoubtedly the most comprehensive analysis of court cases involving facilitated communication that has appeared to date. Her paper demonstrates that legal outcomes in cases involving facilitated communication have often been the result of misunderstandings, prejudice and even deception.

Until fairly recently, people with communication disabilities have not really been given access to the court. Therefore, it is not surprising that we find the situation that Dwyer describes:

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. (p.74)

Wallace v. Health Commissioners of Victoria

Angela Wallace was a person who, like Anne McDonald, had been placed in St. Nicholas, a large institution, as a young child. At the age of 21, she petitioned to leave St. Nicholas.

There were a few factors that distinguished Ms. Wallace's efforts from the successful earlier petition by Ms. McDonald. First, Wallace had no specific alternative living situation set up, as did McDonald. The result of this is that the case was heard by a county judge. Unlike Anne McDonald's case, Wallace's suit involved a petition for access to her records under the Freedom of Information Act.

Second, the county judge who heard the Wallace case appears to have had some strongly held assumptions about disability and cognitive impairment in general and about Wallace in particular; these assumptions affected decisions made in the courtroom. As evidence of this, Dwyer points to the judge's decision to expel Wallace from the courtroom at one point due to the fact that respiratory problems made her breathing loud. He is shown to have expressed surprise when counsel advised him that this was a violation of her rights. A pattern emerged in the proceedings in which the judge tended to treat any evidence or testimony of Wallace's competence as not credible.

Third, Dr. Eisen, director of an enquiry generally referred to as "the Eisen committee," misrepresented events occurring during evaluation of communication via FC. Eisen testified that no one examined during their enquiry showed any evidence of communicating through facilitated communication. When asked for minutes and notes from the original committee, Eisen claimed they had been destroyed. In fact, there was a substantial amount of this material that had been preserved. Dwyer gained access to committee notes and minutes through the Freedom of Information Act. The notes clearly show, contrary to the published findings of the committee, that several individuals, including Wallace, demonstrated ability far beyond what would be expected from the assessments of St. Nicholas.

(Unfortunately, this new information will not benefit Wallace. She died within a few years after the case was concluded. This was a fate shared by five other individuals who were subjects of the Eisen committee.)

"Carla"

"Carla" was a young woman who alleged that her father sexually abused her. These allegations were made via FC at an Adult Activity Unit she attended. All decisions made on this matter were made by the Guardianship Board, an agency charged with making decisions in Carla's life. In the course of deciding the matter, the following actions were taken:

1. The Board commissioned two evaluations of "Carla". One was conducted by a psychologist who was known to oppose the use of facilitated communication.
2. A "validation test" was administered to Carla. The protocol involved the use of headphones by both Carla and her facilitator to control the hearing of questions asked.

1. Based on prior communication, Rosemary Crossley was not sure that Carla could be counted on to always tell the truth when communicating.
2. The IDRP had found that "message" passing was a much more effective means of eliciting validation of the ability of individuals to communicate information unknown to their facilitators than the protocol that was used in this instance.
3. A tape of an interview with police revealed that she answered "yes" and "no" independently to some questions.

1. The most appropriate professionals to make decisions regarding Carla's communication were those who either knew nothing about facilitated communication or who were opposed to it.
2. Carla's "failure" in the validation exercise was unlikely if she really was able to communicate through FC, as she would have had to decide to "sabotage" it.
3. Although not explicitly stated, the board must have assumed that the nine different facilitators whom allegations were made through must have all been generating the allegations.

This article is extremely valuable to anyone who is interested in a detailed account of the history of litigation related to facilitated communication. I am happy to report that within a month of receiving this newsletter, readers with World Wide Web access will be able to read the article in its entirety on the Facilitated Communication Homepage.

The address for the FCI Homepage is:

http://web.syr.edu/~thefci/