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Psychiatry, Psychology and Law, 2015 Vol. 22, No. 1, 145 156, http://dx.doi.org/10.1080/13218719.2014.919690

145 156, http://dx.doi.org/10.1080/13218719.2014.919690 Assessing Fitness for Trial of Deaf Defendants Fiona

Assessing Fitness for Trial of Deaf Defendants

Fiona Davidson a,b , Velimir Kovacevic c , Mark Cave a , Kathryn Hart c and Frances Dark a

a Deafness and Mental Health Service, Metro South Mental Health; MacGregor, QLD, Australia;

Queensland Forensic Mental Health Service, Metro North Mental Health Service, Spring Hill, QLD, Australia; c Community Forensic Mental Health Service, Metro North Mental Health Service, Spring Hill, QLD, Australia

b

It is not common for mental health professionals to encounter deaf individuals in their clinical practice. Forensic assessments of deaf people within the criminal justice system, for example fitness to stand trial, can be particularly challenging. There are issues of social justice, access and equity for deaf defendants where culture, sign language and English literacy can impede accurate assessment and thereby compromise the rights of the individual. Working with deaf people in mental health settings requires specific knowledge and skills. This article aims to raise awareness of some of the issues faced by prelingually deaf people who encounter the mental health and criminal justice systems and to provide practical advice to those who are charged with the task of determining fitness for trial.

Keywords: deaf; deafness; fitness for trial; hearing; mental; prelingual; psychiatric; sign language.

Deaf people, especially those for whom the education system has not met their needs, are at risk of injustice when they encounter the criminal justice system. Where mental health issues are present, there is an increased vul- nerability. Forensic mental health professio- nals are likely to encounter small numbers of deaf people in their clinical practice. This article focuses on the challenge of determin- ing fitness for trial for members of the Austra- lian deaf population. It also explores the intertwined issues of deafness, language abil- ity, interpreting and the impact on the issues of rights and social justice for individuals within the criminal justice system.

Deafness

Deafness is a heterogeneous condition. It can have far-reaching effects on social, emotional

and cognitive development (Fellinger, Holzinger, & Pollard, 2012 ). Congenital deaf- ness may be the result of genetic causes, which can further impact on development (Hindley & Kitson, 2000 ). Within the deaf population of Australia, 1 social and educa- tional experiences are highly varied, as are communication preferences, literacy levels and fluency in sign language (Davidson, Cave, Reedman, Briffa, & Dark, 2012 ). This article focuses on those individuals who are prelingually deaf. Prelingually deaf people are those who were either born without hear- ing or who lost their hearing before learning basic language skills (usually before 3 years of age) (Vernon, Raifman, Greenberg, & Monteiro, 2001 ). Accurate prevalence data for deafness are not currently available for Australia, however, it is estimated that the

146 F. Davidson et al.

“onset of deafness before language has been established happens in about 7 per 10,000 people.” (Fellinger, et al., 2012 ). The majority ( » 90%) of deaf children are born to hearing parents (Glickman & Gulati, 2003 ). Until recently, many children were first diagnosed between 18 and 24 months, when parents were concerned about delays in speech development. As a result, a proportion of deaf children began life with some degree of language deprivation. The general commu- nity may not appreciate the extent of varia- tion in language ability within the Deaf community. Education policies have oscil- lated between endorsing oralism and banning Auslan to endorsing Auslan. This has resulted in huge variations in language literacy. For those prelingually deaf individuals in English-speaking countries, English is gener- ally considered to be a second language. It is important to acknowledge that there are highly educated deaf individuals who ful- fil roles such as academics, writers, lawyers and doctors. However, generally English lan- guage proficiency (as measured by reading) among deaf individuals is lower than in the hearing community (Pollard, 2009 ). The median reading level of deaf individuals is lower than that of their hearing counterparts (LaVigne & Vernon, 2003 ). Some studies have indicated that, “Only ten percent of deaf eighteen year olds reach a tenth-grade reading level or better” (LaVigne & Vernon, 2003 ). Sign languages vary between countries. In Australia, Auslan is used by many deaf peo- ple. However, some older deaf Australians were taught “signed English”, a visual form of the English language on the hands. Of par- ticular importance is an understanding that Auslan is not English. It is a visual spatial language that is used by the Australian Deaf community which has an independent gram- matical system (Johnston, 2004 ). Of those who use Auslan as a primary language, profi- ciency levels vary, often depending on the extent to which the deaf person’s family, friends and education system used Auslan to communicate with and around them.

The issue of lip-reading or speech-reading is often misunderstood by the hearing commu- nity. Widespread myths regarding lip-reading as an effective means of communication have led to a challenging environment for deaf indi- viduals. La Vigne and Vernon (2003) write, “No more than twenty to thirty percent of spo- ken English is visible on the lips and even the most talented deaf speech-readers routinely experience miscommunication.” It has been asserted that the average deaf child can under- stand about 5% of what is said through speech-reading (LaVigne & Vernon, 2003). Although it seems implausible in a devel- oped country that any individual could reach adulthood without obtaining competence in any language, this is the reality for a small sub-population of the Deaf community. Indi- viduals with late exposure to formal language commonly experience difficulties with lan- guage comprehension and demonstrate slow lexical access. Previous reliance on gestures (not sign language) as a primary form of com- munication can result in the appearance of competent sign language to those who are not well versed in signing. Research has indicated that language assessments based around pro- duction may be more reliable than comprehen- sion performance (Woll, 2012). Although individuals with late acquired language ability may appear to function on some level in a pre- dominantly hearing world, there are serious considerations for cognitive and linguistic ability, and these have implications for those who may become involved in the criminal jus- tice and mental health systems (Tuck, 2010).

Fitness for Trial

It is not the intention of the authors to assert that all deaf individuals are unfit for trial due to deafness alone. This article seeks to shed some light on the nuanced nature of assessing deaf defendants in relation to this area. Historically, deaf people have been regarded as unfit for trial simply because they could not hear or speak (R v Pritchard 1836 7 Car & P 303 at 304, as cited in Scott (2007)).

Assessing Fitness for Trial of Deaf Defendants

Table 1. Deafness what you need to know.

147

Deaf people are a culturally and linguistically diverse group

Up to 90% of deaf children are born to hearing families Deaf people often have lower written language comprehension than hearing counterparts

There is significant variation in language literacy (sign language and written English) in the deaf population Auslan is not the same as signed English. It is a language in its own right Deaf people can have reduced opportunities for incidental learning

Glickman and Gulati ( 2003); Pollard (2009); Johnston ( 2004) & Davidson et. al. ( 2012).

The defendant’s ability to make decisions and instruct counsel during the trial are heavily dependent on his or her ability to understand

include the seriousness of the criminal charges, complexity of evidence and applica- ble law, a possible range of penalties and the likelihood that the defendant would be giving evidence. Examiners usually ask a series of questions in order to establish the accused understands the charges, the plea options and the court proceedings. A number of structured assessment instruments for fitness for trial have been developed in North America, but they are not commonly used in other parts of the world (Pirelli, Gottdiener, & Zapf, 2011 ). When developing an opinion regarding fit- ness for trial, the assessment focuses around the areas of understanding, reasoning, deci- sion-making and communication. It is essen- tial to establish that defendants understand the charges, the trial process and the roles of the participants in the trial. It is also essential that defendants can follow the trial and understand evidence given. It is also important that defendants understand the social purpose, pos- sible outcome and consequences of the trial. They need to be able to communicate effec- tively with their counsel and put forward their version of the relevant facts. They also need to be able to communicate effectively as the trial progresses. The clinician assessing a defendant’s fitness needs to obtain information in relation to the offence from the defendant’s lawyer and hear the lawyer’s views about the accused’s ability to give instructions, as well as assess the quality of the relationship between the lawyer and the defendant. For even the most competent users of sign language, complicating factors exist in legal proceedings. Although legal terms and

and process the information, in particular, the evidence given by witnesses. The trial process

is

entirely dependent on language.

Fitness for trial is one of the fundamental legal concepts that embody the notion that no person should be brought to trial upon a crimi- nal charge unless and until they are mentally

capable of fairly standing the trial. The legal principles underlying fitness to stand trial include an imperative to safeguard the accu- racy and fairness of criminal proceedings, therefore preserving the integrity and dignity

of

the legal process. A person’s fitness for trial

is

assessed based on their mental state at the

time of trial as opposed to what it may have been at the time of the alleged offence. The test is an intellectual one in that it assesses the defendant’s level of comprehension and com- munication. The test is focused on four princi- ple areas including an appreciation of the charges and potential consequences, an ability

to understand the trial process, a potential for the accused to participate in that process, and his or her ability to work collaboratively with

a

lawyer. Persons must also be fit to endure

the trial without serious adverse consequences

in

relation to their mental health.

Examination of unfitness includes the determination whether the defendant’s func- tioning and participation during the trial pro- cess would be adversely affected by his or her disability and whether the accused would be capable of acting as an active and rational participant in the trial. Other considerations

148 F. Davidson et al.

concepts can be translated into Auslan for meaning, there are very few formal signs for most legal terms used in court proceedings. Because there are very few Deaf professio- nals who work in legal settings, the sign lan- guage lexicon around legal terms is still developing. Currently, there is no specialist credentialing system for interpreters who work in legal settings. Fingerspelling these terms is also often of little use as this simply reproduces the English word in a visually accessible form and therefore still in the defendant’s second language, English. A complete and meaningful interpretation is also often impossible due to the time lag required between spoken and signed utteran- ces and the pace of court proceedings. These issues are further compounded when the defendant has minimal sign language skills and requires the use of relay interpreters who translate from the signed language into the defendant’s idiosyncratic or individualistic non-verbal signs. This remains a problem even with the use of relay interpreters who translate from the signed language into the defendant’s idiosyncratic or individualistic non-verbal signs. Similarly, the technique called transliteration (a method of interpreta- tion where spoken English is converted word for word into visual English) has been attrac- tive to the legal system given the expectation of no lag time so that interpreter can translate simultaneously when words are spoken because the interpreter is not making any judgements about meanings. This ignores the fact that most prelingually deaf defendants cannot comprehend word for word English, particularly in the court room setting, so they can be afforded adequate comprehension of legal proceedings. La Vigne and Vernon ( 2003 ) write: “the sad truth is that fundamen- tally flawed assumptions about the interpret- ing process are depriving many, and perhaps most, deaf defendants of critical information both in and out of court”. Although appropri- ate efforts to meet the communication requirements of deaf defendants have time and cost implications, it is important for

professionals within the criminal justice and health systems consider the needs of the indi- vidual concerned, especially in crimes of a serious nature. Low literacy deaf defendants pose a unique challenge to the criminal justice sys- tem. A proportion of the Deaf community has minimal language skills in any language, this situation arises as a result of early language deprivation and other organic cognitive or language disorders coincidental with their deafness. Individuals with minimal language skills have limited vocabularies, a poor understanding of grammar and large informa- tion gaps. They have impaired capacity for understanding legal terminology and may be found incompetent to stand trial on linguistic grounds. Low literacy deaf persons who have poor understanding of any language are inca- pable of understanding their charges and par- ticipating in the court proceedings. It is particularly challenging for this group of deaf defendants to comprehend the chronology of events described in court. Deaf defendants with minimal language skills present a chal- lenge to courts as they are neither mentally ill nor mentally impaired, in the sense of having a learning disability. Generally, their intellec- tual potential is within normal ranges (Austen & Jeffrey, 2007 ). It is a functional impairment borne of linguistic deprivation. A minority of deaf defendants will be per- manently unfit for trial. The uniqueness of this small population of prelingually deaf individu- als has meant that, to date, the judicial system has not established procedures to deal effec- tively with such cases. A default consequence may be confining deaf defendants to secure facilities. It is not always possible for a deaf defendant as an adult to gain the requisite lin- guistic skills and learn appropriate sign lan- guage in order to be fit to stand trial.

Assessment

When conducting a fitness for trial assess- ment of a deaf person several considerations should be taken into account. This section

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provides practical advice for any mental health professional who is charged with the task of determining fitness for trial of a deaf person. It outlines issues that should be con- sidered prior to, during and after an assessment.

Preparation

Some understanding of Deaf culture is essen- tial to ensure that a competent assessment of fitness for trial is undertaken. Brauer, Braden, Pollard, and Hardy-Braz ( 1998 ) assert that competence in the field of deafness when conducting psychological assessments “implies sign language fluency and knowl- edge about deafness from audiological, developmental, educational, vocational, legal, social, and cultural perspectives (in addition to a solid background in mental health).” In the absence of such experience and knowledge, it is wise to seek the involve- ment of and advice from professionals with relevant expertise. In preparing for an assessment of a deaf person a key consideration is allocation of time. A comprehensive assessment involving a deaf individual may take two to three times longer than with a hearing person due to com- munication issues and the need for specific fitness for trial requirements to be explored. Importantly, knowledge regarding the per- son’s preferred mode of communication should be gathered, to ensure that adequate provisions are in place such as booking a suit- ably qualified interpreter. Engaging a suitably accredited sign lan- guage interpreter is the most important step a professional charged with conducting fitness for trial assessments with deaf people can take. The role of the interpreter is to act as a linguistic and cultural bridge between parties who do not share the same language in order to facilitate communication. It is important to remember that the clinician will conduct all aspects of the assessment. However, on occa- sion, the interpreter might need to take more active role, particularly if there are difficulties

in interaction and miscommunications. The interpreter cannot comment on questions of mental health because their expertise lies only in language and culture. Therefore, the interpreter will not assist in explaining or car- rying out the assessment but may provide useful information on the language use of the deaf client and how interpretation may affect the assessment itself. For deaf people with minimal language skills, it is recommended that a deaf inter- preter be engaged in addition to a sign lan- guage interpreter. A deaf interpreter is a deaf person assessed to have high linguistic ability in communicating with clients whose lan- guage is decayed or disadvantaged. A hearing interpreter will render spoken English into Auslan, and the deaf interpreter will take the Auslan message and convert it into a form of language most easily understood by the client. Ideally, a briefing session should be held between the clinician and the interpreter. This will give the interpreter a chance to explain their role, and the clinician a chance to discuss the purpose and methods of the fit- ness assessment with the interpreter. Spend- ing time with the interpreter and exchanging information is critical for a collaborative working relationship. The clinician should explain the purpose of the assessment, along with the key principles and concepts. The interpreter should become familiar with the assessment items and highlight what they foresee to be any areas of linguistic and cul- tural difficulty. The clinician and the inter- preter need to agree on the preferred method of negotiating any miscommunication during the interview. In the pre-assessment period, the inter- preter might choose to peruse any documen- tation or previous reports, if available, pertaining to the client’s use of language and education level. It is also helpful to find out if the client’s family members use sign lan- guage. The interpreter should also be informed about the client’s charges and what the police allegations are in order to

150 F. Davidson et al.

understand the context of the evaluation. It is also important to exchange information about the client’s mental health literacy and the psychiatric diagnosis, if any. The interpreter needs to understand fully the goals of evalua- tion and to familiarize himself or herself with the type of questions likely to be asked during the fitness evaluation, as well as the manner in which the questions are going to be asked, keeping in mind that interpreters with specific forensic experience are very difficult to find. It is advantageous for the interpreter to meet with the client prior to the assessment in order to calibrate their communication style due to the variance in language preference and abil- ity within the deaf population.

During the Assessment

During the assessment it is important that clinicians are flexible in their approach to communication. For many mental health pro- fessionals, working with a sign language interpreter is a rare opportunity and they might find the process challenging. The sec- tion on interpreters that follows provides fur- ther information and practical tips. Although this may not be regarded as the most important consideration in fitness evalu- ation of hearing individuals, a detailed back- ground history is a particularly important aspect in assessing the fitness for trial in a deaf person. An understanding of the cause (if known) of deafness is useful, because some causes are associated with other physio- logical and psychological symptoms in the form of various syndromes. As noted by Hindley and Kitson ( 2000 ), “there is a multi- tude of minor disorders associated with genetic syndromes and environmental causes of deafness, which will have a direct or indi- rect psychological effect on mental state. Assessors need to be wary of this.” It has been estimated that » 30 40% of children who are deaf or hard of hearing may have one or more other developmental disabilities or neurological conditions, such as learning dis- abilities (Austen & Jeffrey, 2007 ).

With a deaf individual, developmental history is a key feature during an assessment, particularly as there are no standardized methods to assess the client’s sign language abilities. This would include details about the age that deafness was detected, use of lan- guage in early childhood and throughout life course and educational and work history. An understanding of the extent to which the per- son identifies with Deaf culture is also impor- tant to ascertain. If a person uses sign language to communicate, the age at which they were introduced to signing is important to consider. Communication with family is also important to note (i.e., whether the client was born in a hearing or deaf family). Varied approaches to the education of deaf people over time have resulted in some deaf people experiencing language deprivation in their early years and childhood, with far-reaching effects on cognitive, social and emotional development. In families where sign lan- guage is not used, there is often a lack of opportunities for incidental learning from parents and siblings and limitations in fund of knowledge. Deficiencies in the acquisition of social knowledge have great implications for the formation of conceptual understanding of the roles and functions of the criminal justice system as relevant to the client’s capacities to participate in a trial. This pertains to the capacity for social and moral reasoning, per- spective taking and the understanding of the social system. Given that fitness for trial is dependant on the capacities of understanding, reasoning, decision-making and communication, the best possible understanding of the client’s language ability must be obtained. Although there are some tests of language ability in other sign languages (British Sign Language), there is currently no standardized test for Auslan production or comprehension, render- ing the task of determining sign language ability particularly challenging. A skilled and well-qualified sign language interpreter can be crucial in gaining an understanding of sign language ability although the opinion of the

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interpreter should not be viewed as a formal assessment of that ability. The assessor might use different methods, including the use of pictures in assessing Deaf individuals to ensure that a shared understanding is reached. A range of images to assist with mental health assessments can be found in resources such as those by Glickman and Gulati ( 2003 ) and via websites (given later in this article). The degree of audiological loss should also be explored in the assessment. Although some deaf people may use assistive listening devices such as hearing aids or cochlear implants, it is erroneous to assume that these will allow the user to hear normally, or that they have had access to a full range of learn- ing opportunities, as this is often not the case. The use of written notes should be avoided with deaf individuals, whose first language is a sign language. It is important to remember that written English is at best a second language for this population and that varied grammati- cal structures of languages can result in writ- ten English appearing to be fragmented. At times, individuals who are highly fluent in Auslan can produce written notes that would mislead a mental health professional who may interpret them as a form of thought disorder or misunderstand the intended meaning due to the marked difference in grammar and syntax (Hindley & Kitson, 2000). An important observation of those with limited language is that they often experience difficulty with abstract concepts such as time; therefore, their story is often conveyed in a non-linear fashion. Sufficient time should be allowed for descriptive and narrative answers. Poor comprehension of verb structure is also very common (Woll, 2012 ). This can result is enormous challenges in ascertaining an accu- rate understanding of a past event, that is, what happened first and who did what to whom, which might present a considerable challenge in the process of instructing a legal representative. Clinicians who are experi- enced in undertaking assessments of deaf cli- ents often spend considerable time constructing visual time lines, clarifying the

chronology and then checking details to con- firm that a shared understanding is reached. The mental state examination of a deaf client can be challenging in many respects. For example, the effect of a deaf person can be difficult to assess. When using an inter- preter, eye contact is frequently made primar- ily with the interpreter and not with the clinician undertaking the assessment. Addi- tionally, it is common for deaf people to be highly expressive with their faces. For exam- ple, when relaying a story of someone else who is angry, deaf individuals will frequently adopt an expression of anger, which is not necessarily a reflection of their own mood. Similarly, when describing a past event, signs and facial expressions may reflect the per- son’s mood at the time of the event, but not his or her current emotion. Currently, there are very few psychologi- cal testing tools that are considered to be appropriate for deaf people given the cross- cultural and cross-language issues. Brauer et al. (1998 ) write,

some cognitive tests are likely to elicit fund of information bias. These tests assume exposure to and familiarity with common knowledge. The restricted access to deaf individuals of information from the printed page, radio programs, overheard conversa- tions, and so on leaves most with some limi- tations in factual knowledge that may be attributed to intellectual ability. (p. 305)

The visual nature of sign languages can result in interpreters needing to pose ques- tions in a way that provides the client with the answer. A lack of suitable norms for deaf people in Australia is also a concern. The use of psychological tests that have been designed for use with hearing populations, even with the use of a highly skilled inter- preter, results in deaf subjects appearing more disordered than they actually are (Deaf Wellness Center, 2010 ). Use of measures such as the Wechsler performance scales or Raven progressive matrices (Hindley & Kitson, 2000 ) have been used by some clini- cians working with deaf clients, however, it

152 F. Davidson et al.

is important to note that no Auslan version of cognitive tests are currently in existence. The area of assessing cognitive ability is a great challenge for those who are asked to provide

advice regarding fitness for trial, particularly when attempting to ascertain the client’s capacity to learn new information and be edu- cated about the trial process. Limitations in the use of such measures when working with deaf individuals should be included in any report formed, particularly in cases with legal issues. It should be noted that some encouraging work has been done in the area of measures for deaf Australian adolescents. Work under- taken by Cornes, Rohan, Napier, and Rey ( 2006 ) has resulted in an Auslan version of the Youth Self Report, a measure of psycho- pathology for adolescents. The development

of valid and culturally appropriate cognitive

assessment tools remains an area that war- rants further study, particularly in light of co-

morbidities that are associated with deafness.

After the Assessment

A debriefing session between the clinician

and interpreter is usually of great benefit. The post-assessment meeting allows the clinician

to ask questions of a linguistic or cultural

nature. The interpreter may share information relating to perceived difficulties in transla- tion, or take the opportunity to share informa- tion on culture that might influence any clinical attributions made based on cultural or behavioural norms or language use. It may be necessary to draw on expertise from others in formulating a decision regard- ing fitness for trial. In an ideal environment, expertise across a range of disciplines in forensic mental health and deafness and men-

tal health, in combination with cultural and

language specialist knowledge should be incorporated in the assessment and decision- making processes. Reports regarding fitness

to plead should highlight any limitations in

the assessment, including the qualifications and experience of the interpreter, suitability

of measures used or lack of suitable tools for assessment, as well as resource issues (i.e., availability of relay interpreter). The knowl- edge gaps need to be acknowledged, for example, difficulties in assessing cognition or testing Auslan literacy. Recommendations regarding communica- tion assistance required for clients in a court environment, to ensure that they are able to understand proceedings and participate fully in the process should feature in reporting. Although the conclusions from the assess- ment, including the available collateral, might be that the person has no intellectual disability or mental illness per se, he or she can be so functionally impaired by virtue of low language ability that his or her capacity to learn sign language and be educated about the relevant legal matters can be extremely limited. In such cases, the unfitness is often permanent due to limits to the pragmatic lan- guage remediation in someone who failed to acquire sign language during the appropriate developmental stage. Frequently, no amount of time or additional resources is sufficient to remedy the problem. In less serious cases, it is possible that language skills might improve with intensive training. Such training can also improve the person’s social knowledge. The court process would have to be modified to accommodate the person’s level of understanding and abil- ity to follow the proceedings. Such modifica- tions might include the following:

(1) The use of more than one interpreter with frequent changes (at least every 45 minutes). (2) The use of deaf relay interpreters who share the person’s cultural experience and are able to draw on this perspec- tive to aid communication. (3) The availability of an interpreter at the counsel table to check interpretation and also to interpret instructions to counsel. It is advisable this interpreter is present during the pre-trial meetings and is aware of the vocabulary of the

Assessing Fitness for Trial of Deaf Defendants

153

case and the level of communication that will be required. (4) Filming of proceedings to review the communication and act as a record. (5) Regular checks for understanding, particularly when the defendant has a low language ability, to avoid ten- dency to agree regardless whether he or she understands or not. (6) Allowing the interpreter time to inter- pret in the consecutive mode where possible, especially when issues being discussed are technical or of an abstract nature (LaVigne & Vernon, 2003 ). This means that rather than interpreting simultaneously to the courts proceedings, the interpreter waits for whole messages to be deliv- ered before rendering it in the other language. (7) The use of breaks to permit the use of role-play and pictures to enhance understanding and to alert the lawyers to use simpler language (LaVigne & Vernon, 2003).

Sign Language and Working with Interpreters

Working alongside an interpreter can be an unaccustomed experience. There is a shortage of suitably accredited interpreters with expe- rience in mental health and forensic settings in Australia. Therefore, this section sheds light on how best clinicians and interpreters can work together to provide an equitable and accurate assessment ( Table 2 ).

It is important to be aware that no signs exist for the majority of legal terminology. There is an inherent ambiguity and subjectiv- ity in interpreting what the defendant may have communicated and interpreters fre- quently have to engage in reinterpreting what the defendant may have stated. In a court environment, the fast pace of the proceedings may frequently draw the interpreter into inter- preting at a level that the defendant cannot understand. Where the deaf defendant lacks fluency in sign language, it is often impossi- ble to have adequate communication, even with a skilled interpreter. Interpreters have a difficult task to ascertain how to get from spe- cific words used in courtroom setting, to the meaning behind those words. Subjective deci- sions are required by the interpreter to deter- mine the best linguistic equivalent for each individual deaf person. All sign languages have a much smaller vocabulary than English and they lack a body of standardized techni- cal terms, including legal terms. There is a vast mismatch of language between the legal system that relies on the specific jargon and the sign language system that is largely visual. Speaking is almost always faster than signing and equivalent messages in English and sign language do not correspond tidily in terms of length. Therefore, attempting to keep pace with the dialogue in a courtroom can result in interpreting errors. Those assessing fitness for trial who have little expertise with deafness often assume that the defendant shares a common language with the same features of communication. In the court environment, it is commonly

Table 2. Working with interpreters tips.

Speak normally and directly to the client the interpreter will speak in first person (as though they are the client) Speak in plain English

Regularly check for understanding during your conversation

Avoid private conversations as everything heard by the interpreted will be conveyed in sign language (and vice versa) Take cues from the deaf person and interpreter about positioning in the room and lighting placement Use a (NAATI) accredited interpreter at professional level (level 3)

154 F. Davidson et al.

believed the provision of a suitably qualified interpreter is sufficient accommodation to ensure that a deaf defendant can participate in proceedings. One of the common misconcep- tions is that there is something called “the right translation” and, that two different inter- preters should be able to always offer exactly the same answers. Another misconception is that anyone who knows two languages is competent to interpret and that one language can be interpreted word for word into another. There are also misconceptions about the time and energy required to convert a ver- bal message into sign language and do it fast and unobtrusively. In Australia, interpreters are accredited by the National Accreditation Authority for Translators and Interpreters (NAATI). It is extremely important to engage NAATI- accredited interpreters to the level of Profes- sional. It is also important to source an inter- preter that additionally has experience and/or training in mental health. It is unwise to enlist family, friends or unaccredited “bilingual” colleagues in the role of interpreter. Interpret- ing is a complex activity requiring a set of specialist skills that language users other than interpreters have not been assessed for. Inter- preters are also obliged to adhere to a code of ethics, which will in most cases ensure a stan- dard of professional practice a clinician can depend on.

Limitations

The authors note that optimal resources for the assessment of fitness for trial of deaf indi- viduals pose a challenge to both the criminal justice and health systems. Lengthy assess- ment periods combined with a need to acquire expertise from a broad range of perspectives are challenging, given the limited workforce available and cost implications. In Australia, there are very few Auslan interpreters who have experience in mental health and legal interpreting. Similarly, there are very few mental health clinicians with a moderate to high level of Deaf cultural awareness and

experience. Clinicians who do not possess the knowledge of Deaf cultural considerations and who do not understand the need to access suitable expertise may make erroneous deter- minations regarding fitness for trial. In deter- mining fitness for trial there is a clear need to ensure that the rights of deaf individuals who face criminal charges are suitably met.

Future Directions

While there are challenges in meeting the needs of deaf individuals who are involved in the mental health and criminal justice sys- tems, there are some areas where small changes can lead to significant improvements for the Australian Deaf community. The area of deafness and mental health has developed and continued to strengthen over the last 20 years in several regions including Europe and the United States with the advent of specialist services and training programs. At the time of writing, Australia’s only adult specialist team, The Deafness and Mental Health Service in Queensland, pro- vides a limited service on a consultation liai- son basis with a small part time workforce. It also provides workforce education in this spe- cialized area of mental health. Further infor- mation regarding the service can be found in the useful websites section below. Strengthened collaboration between forensic and deaf mental health specialists and with deaf non-government support and advocacy services could yield improved out- comes for the Australian Deaf community can be made. Improved access to training for mental health and legal professionals regard- ing the specific issues and needs of deaf peo- ple they may encounter is a recommendation. An increased presence of deaf professionals in the health and legal sectors to act as role models in the Deaf community is a goal. Finally, further research to develop reliable and valid measures of cognitive ability and language ability for Auslan users is an area of need, which may have a significant impact on assessments for fitness for trial.

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155

Conclusions

There are issues of social justice and equity for deaf defendants in the criminal justice and mental health sectors. Assessing fitness for trial of a deaf person is a complex and spe- cialized area where there are risks that injus- tice can occur. Working with deaf people in mental health settings requires specific skills and takes considerably more time and resour- ces than with a hearing person. There is a need to increase knowledge and awareness for professionals working in this area and for the criminal justice and forensic mental health systems to be more accommodating for deaf defendants. The authors understand that there are small numbers of prelingually deaf people in the pop- ulation. While it is not likely that all recom- mendations of the paper can be implemented in resource limited clinical and criminal justice environments, small changes in the status quo can result in large differences in outcomes for the deaf individual and their community.

Useful Websites

The Deafness and Mental Health Statewide Consultation Service, Metro South Mental Health Service, Queensland, Australia:

au/

Deaf Australia: http://www.deafau.org.au/

Acknowledgements

The authors wish to acknowledge the kind assis- tance of Ms Kathryn O’Brien, Solicitor to the Supreme Court of Queensland and High Court of Australia (Porta Lawyers), in reviewing this manuscript.

Note

1. There are a number of conventions with regard to whether or when to refer to deaf peo- ple as uppercase “Deaf” or lowercase “deaf”

(Napier, McKee, & Goswell, 2006). In this article “Deaf” is used only in reference to the collective entities of Deaf community or Deaf culture.

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