Psychiatry, Psychology and Law, 2015

Vol. 22, No. 1, 145 156, http://dx.doi.org/10.1080/13218719.2014.919690

Assessing Fitness for Trial of Deaf Defendants

Fiona Davidsona,b, Velimir Kovacevicc, Mark Cavea, Kathryn Hartc and Frances Darka
a
Deafness and Mental Health Service, Metro South Mental Health; MacGregor, QLD, Australia;
b
Queensland Forensic Mental Health Service, Metro North Mental Health Service, Spring Hill, QLD,
Australia; cCommunity Forensic Mental Health Service, Metro North Mental Health Service, Spring Hill,
QLD, Australia

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 and cognitive development (Fellinger,
education system has not met their needs, are Holzinger, & Pollard, 2012). Congenital deaf-
at risk of injustice when they encounter the ness may be the result of genetic causes,
criminal justice system. Where mental health which can further impact on development
issues are present, there is an increased vul- (Hindley & Kitson, 2000). Within the deaf
nerability. Forensic mental health professio- population of Australia,1 social and educa-
nals are likely to encounter small numbers of tional experiences are highly varied, as are
deaf people in their clinical practice. This communication preferences, literacy levels
article focuses on the challenge of determin- and fluency in sign language (Davidson,
ing fitness for trial for members of the Austra- Cave, Reedman, Briffa, & Dark, 2012). This
lian deaf population. It also explores the article focuses on those individuals who are
intertwined issues of deafness, language abil- prelingually deaf. Prelingually deaf people
ity, interpreting and the impact on the issues are those who were either born without hear-
of rights and social justice for individuals ing or who lost their hearing before learning
within the criminal justice system. basic language skills (usually before 3 years
of age) (Vernon, Raifman, Greenberg, &
Deafness Monteiro, 2001). Accurate prevalence data
Deafness is a heterogeneous condition. It can for deafness are not currently available for
have far-reaching effects on social, emotional Australia, however, it is estimated that the

Correspondence: Fiona Davidson, Queensland Forensic Mental Health Service, Level 1/56 Little Edward
Street, Spring Hill, QLD 4000, Australia. Tel.: C61(0)731397200/C61(0)417616889; Fax: C61(0)
731397201; Email: [email protected]

2014 The Australian and New Zealand Association of Psychiatry, Psychology and Law
146 F. Davidson et al.

onset of deafness before language has been The issue of lip-reading or speech-reading
established happens in about 7 per 10,000 is often misunderstood by the hearing commu-
people. (Fellinger, et al., 2012). nity. Widespread myths regarding lip-reading
The majority (90%) of deaf children are as an effective means of communication have
born to hearing parents (Glickman & Gulati, led to a challenging environment for deaf indi-
2003). Until recently, many children were viduals. La Vigne and Vernon (2003) write,
first diagnosed between 18 and 24 months, No more than twenty to thirty percent of spo-
when parents were concerned about delays in ken English is visible on the lips and even the
speech development. As a result, a proportion most talented deaf speech-readers routinely
of deaf children began life with some degree experience miscommunication. It has been
of language deprivation. The general commu- asserted that the average deaf child can under-
nity may not appreciate the extent of varia- stand about 5% of what is said through
tion in language ability within the Deaf speech-reading (LaVigne & Vernon, 2003).
community. Education policies have oscil- Although it seems implausible in a devel-
lated between endorsing oralism and banning oped country that any individual could reach
Auslan to endorsing Auslan. This has resulted adulthood without obtaining competence in
in huge variations in language literacy. For any language, this is the reality for a small
those prelingually deaf individuals in sub-population of the Deaf community. Indi-
English-speaking countries, English is gener- viduals with late exposure to formal language
ally considered to be a second language. commonly experience difficulties with lan-
It is important to acknowledge that there guage comprehension and demonstrate slow
are highly educated deaf individuals who ful- lexical access. Previous reliance on gestures
fil roles such as academics, writers, lawyers (not sign language) as a primary form of com-
and doctors. However, generally English lan- munication can result in the appearance of
guage proficiency (as measured by reading) competent sign language to those who are not
among deaf individuals is lower than in the well versed in signing. Research has indicated
hearing community (Pollard, 2009). The that language assessments based around pro-
median reading level of deaf individuals is duction may be more reliable than comprehen-
lower than that of their hearing counterparts sion performance (Woll, 2012). Although
(LaVigne & Vernon, 2003). Some studies individuals with late acquired language ability
have indicated that, Only ten percent of deaf may appear to function on some level in a pre-
eighteen year olds reach a tenth-grade reading dominantly hearing world, there are serious
level or better (LaVigne & Vernon, 2003). considerations for cognitive and linguistic
Sign languages vary between countries. In ability, and these have implications for those
Australia, Auslan is used by many deaf peo- who may become involved in the criminal jus-
ple. However, some older deaf Australians tice and mental health systems (Tuck, 2010).
were taught signed English, a visual form
of the English language on the hands. Of par-
ticular importance is an understanding that Fitness for Trial
Auslan is not English. It is a visual spatial It is not the intention of the authors to assert
language that is used by the Australian Deaf that all deaf individuals are unfit for trial due
community which has an independent gram- to deafness alone. This article seeks to shed
matical system (Johnston, 2004). Of those some light on the nuanced nature of assessing
who use Auslan as a primary language, profi- deaf defendants in relation to this area.
ciency levels vary, often depending on the Historically, deaf people have been
extent to which the deaf persons family, regarded as unfit for trial simply because they
friends and education system used Auslan to could not hear or speak (R v Pritchard 1836
communicate with and around them. 7 Car & P 303 at 304, as cited in Scott (2007)).
 Assessing Fitness for Trial of Deaf Defendants 147

Table 1. Deafness what you need to know.

 Deaf people are a culturally and linguistically  There is significant variation in language
diverse group literacy (sign language and written English) in
the deaf population
 Up to 90% of deaf children are born to hearing  Auslan is not the same as signed English. It is a
families language in its own right
 Deaf people often have lower written language  Deaf people can have reduced opportunities for
comprehension than hearing counterparts incidental learning

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

The defendants ability to make decisions and include the seriousness of the criminal
instruct counsel during the trial are heavily charges, complexity of evidence and applica-
dependent on his or her ability to understand ble law, a possible range of penalties and the
and process the information, in particular, the likelihood that the defendant would be giving
evidence given by witnesses. The trial process evidence. Examiners usually ask a series of
is entirely dependent on language. questions in order to establish the accused
Fitness for trial is one of the fundamental understands the charges, the plea options and
legal concepts that embody the notion that no the court proceedings. A number of structured
person should be brought to trial upon a crimi- assessment instruments for fitness for trial
nal charge unless and until they are mentally have been developed in North America, but
capable of fairly standing the trial. The legal they are not commonly used in other parts of
principles underlying fitness to stand trial the world (Pirelli, Gottdiener, & Zapf, 2011).
include an imperative to safeguard the accu- When developing an opinion regarding fit-
racy and fairness of criminal proceedings, ness for trial, the assessment focuses around
therefore preserving the integrity and dignity the areas of understanding, reasoning, deci-
of the legal process. A persons fitness for trial sion-making and communication. It is essen-
is assessed based on their mental state at the tial to establish that defendants understand the
time of trial as opposed to what it may have charges, the trial process and the roles of the
been at the time of the alleged offence. The participants in the trial. It is also essential that
test is an intellectual one in that it assesses the defendants can follow the trial and understand
defendants level of comprehension and com- evidence given. It is also important that
munication. The test is focused on four princi- defendants understand the social purpose, pos-
ple areas including an appreciation of the sible outcome and consequences of the trial.
charges and potential consequences, an ability They need to be able to communicate effec-
to understand the trial process, a potential for tively with their counsel and put forward their
the accused to participate in that process, and version of the relevant facts. They also need
his or her ability to work collaboratively with to be able to communicate effectively as the
a lawyer. Persons must also be fit to endure trial progresses. The clinician assessing a
the trial without serious adverse consequences defendants fitness needs to obtain information
in relation to their mental health. in relation to the offence from the defendants
Examination of unfitness includes the lawyer and hear the lawyers views about the
determination whether the defendants func- accuseds ability to give instructions, as well
tioning and participation during the trial pro- as assess the quality of the relationship
cess would be adversely affected by his or between the lawyer and the defendant.
her disability and whether the accused would For even the most competent users of sign
be capable of acting as an active and rational language, complicating factors exist in legal
participant in the trial. Other considerations proceedings. Although legal terms and
148 F. Davidson et al.

concepts can be translated into Auslan for professionals within the criminal justice and
meaning, there are very few formal signs for health systems consider the needs of the indi-
most legal terms used in court proceedings. vidual concerned, especially in crimes of a
Because there are very few Deaf professio- serious nature.
nals who work in legal settings, the sign lan- Low literacy deaf defendants pose a
guage lexicon around legal terms is still unique challenge to the criminal justice sys-
developing. Currently, there is no specialist tem. A proportion of the Deaf community has
credentialing system for interpreters who minimal language skills in any language, this
work in legal settings. Fingerspelling these situation arises as a result of early language
terms is also often of little use as this simply deprivation and other organic cognitive or
reproduces the English word in a visually language disorders coincidental with their
accessible form and therefore still in the deafness. Individuals with minimal language
defendants second language, English. A skills have limited vocabularies, a poor
complete and meaningful interpretation is understanding of grammar and large informa-
also often impossible due to the time lag tion gaps. They have impaired capacity for
required between spoken and signed utteran- understanding legal terminology and may be
ces and the pace of court proceedings. These found incompetent to stand trial on linguistic
issues are further compounded when the grounds. Low literacy deaf persons who have
defendant has minimal sign language skills poor understanding of any language are inca-
and requires the use of relay interpreters who pable of understanding their charges and par-
translate from the signed language into the ticipating in the court proceedings. It is
defendants idiosyncratic or individualistic particularly challenging for this group of deaf
non-verbal signs. This remains a problem defendants to comprehend the chronology of
even with the use of relay interpreters who events described in court. Deaf defendants
translate from the signed language into the with minimal language skills present a chal-
defendants idiosyncratic or individualistic lenge to courts as they are neither mentally ill
non-verbal signs. Similarly, the technique nor mentally impaired, in the sense of having
called transliteration (a method of interpreta- a learning disability. Generally, their intellec-
tion where spoken English is converted word tual potential is within normal ranges (Austen
for word into visual English) has been attrac- & Jeffrey, 2007). It is a functional
tive to the legal system given the expectation impairment borne of linguistic deprivation.
of no lag time so that interpreter can translate A minority of deaf defendants will be per-
simultaneously when words are spoken manently unfit for trial. The uniqueness of this
because the interpreter is not making any small population of prelingually deaf individu-
judgements about meanings. This ignores the als has meant that, to date, the judicial system
fact that most prelingually deaf defendants has not established procedures to deal effec-
cannot comprehend word for word English, tively with such cases. A default consequence
particularly in the court room setting, so they may be confining deaf defendants to secure
can be afforded adequate comprehension of facilities. It is not always possible for a deaf
legal proceedings. La Vigne and Vernon defendant as an adult to gain the requisite lin-
(2003) write: the sad truth is that fundamen- guistic skills and learn appropriate sign lan-
tally flawed assumptions about the interpret- guage in order to be fit to stand trial.
ing process are depriving many, and perhaps
most, deaf defendants of critical information
both in and out of court. Although appropri- Assessment
ate efforts to meet the communication When conducting a fitness for trial assess-
requirements of deaf defendants have time ment of a deaf person several considerations
and cost implications, it is important for should be taken into account. This section
 Assessing Fitness for Trial of Deaf Defendants 149

provides practical advice for any mental in interaction and miscommunications. The
health professional who is charged with the interpreter cannot comment on questions of
task of determining fitness for trial of a deaf mental health because their expertise lies
person. It outlines issues that should be con- only in language and culture. Therefore, the
sidered prior to, during and after an interpreter will not assist in explaining or car-
assessment. rying out the assessment but may provide
useful information on the language use of the
deaf client and how interpretation may affect
Preparation the assessment itself.
Some understanding of Deaf culture is essen- For deaf people with minimal language
tial to ensure that a competent assessment of skills, it is recommended that a deaf inter-
fitness for trial is undertaken. Brauer, Braden, preter be engaged in addition to a sign lan-
Pollard, and Hardy-Braz (1998) assert that guage interpreter. A deaf interpreter is a deaf
competence in the field of deafness when person assessed to have high linguistic ability
conducting psychological assessments in communicating with clients whose lan-
implies sign language fluency and knowl- guage is decayed or disadvantaged. A hearing
edge about deafness from audiological, interpreter will render spoken English into
developmental, educational, vocational, Auslan, and the deaf interpreter will take the
legal, social, and cultural perspectives (in Auslan message and convert it into a form of
addition to a solid background in mental language most easily understood by the
health). In the absence of such experience client.
and knowledge, it is wise to seek the involve- Ideally, a briefing session should be held
ment of and advice from professionals with between the clinician and the interpreter.
relevant expertise. This will give the interpreter a chance to
In preparing for an assessment of a deaf explain their role, and the clinician a chance
person a key consideration is allocation of to discuss the purpose and methods of the fit-
time. A comprehensive assessment involving ness assessment with the interpreter. Spend-
a deaf individual may take two to three times ing time with the interpreter and exchanging
longer than with a hearing person due to com- information is critical for a collaborative
munication issues and the need for specific working relationship. The clinician should
fitness for trial requirements to be explored. explain the purpose of the assessment, along
Importantly, knowledge regarding the per- with the key principles and concepts. The
sons preferred mode of communication interpreter should become familiar with the
should be gathered, to ensure that adequate assessment items and highlight what they
provisions are in place such as booking a suit- foresee to be any areas of linguistic and cul-
ably qualified interpreter. tural difficulty. The clinician and the inter-
Engaging a suitably accredited sign lan- preter need to agree on the preferred method
guage interpreter is the most important step a of negotiating any miscommunication during
professional charged with conducting fitness the interview.
for trial assessments with deaf people can In the pre-assessment period, the inter-
take. The role of the interpreter is to act as a preter might choose to peruse any documen-
linguistic and cultural bridge between parties tation or previous reports, if available,
who do not share the same language in order pertaining to the clients use of language and
to facilitate communication. It is important to education level. It is also helpful to find out if
remember that the clinician will conduct all the clients family members use sign lan-
aspects of the assessment. However, on occa- guage. The interpreter should also be
sion, the interpreter might need to take more informed about the clients charges and what
active role, particularly if there are difficulties the police allegations are in order to
150 F. Davidson et al.

understand the context of the evaluation. It is With a deaf individual, developmental

also important to exchange information about history is a key feature during an assessment,
the clients mental health literacy and the particularly as there are no standardized
psychiatric diagnosis, if any. The interpreter methods to assess the clients sign language
needs to understand fully the goals of evalua- abilities. This would include details about the
tion and to familiarize himself or herself with age that deafness was detected, use of lan-
the type of questions likely to be asked during guage in early childhood and throughout life
the fitness evaluation, as well as the manner course and educational and work history. An
in which the questions are going to be asked, understanding of the extent to which the per-
keeping in mind that interpreters with specific son identifies with Deaf culture is also impor-
forensic experience are very difficult to find. tant to ascertain. If a person uses sign
It is advantageous for the interpreter to meet language to communicate, the age at which
with the client prior to the assessment in order they were introduced to signing is important
to calibrate their communication style due to to consider. Communication with family is
the variance in language preference and abil- also important to note (i.e., whether the client
ity within the deaf population. was born in a hearing or deaf family). Varied
approaches to the education of deaf people
over time have resulted in some deaf people
During the Assessment experiencing language deprivation in their
During the assessment it is important that early years and childhood, with far-reaching
clinicians are flexible in their approach to effects on cognitive, social and emotional
communication. For many mental health pro- development. In families where sign lan-
fessionals, working with a sign language guage is not used, there is often a lack of
interpreter is a rare opportunity and they opportunities for incidental learning from
might find the process challenging. The sec- parents and siblings and limitations in fund of
tion on interpreters that follows provides fur- knowledge. Deficiencies in the acquisition of
ther information and practical tips. social knowledge have great implications for
Although this may not be regarded as the the formation of conceptual understanding of
most important consideration in fitness evalu- the roles and functions of the criminal justice
ation of hearing individuals, a detailed back- system as relevant to the clients capacities to
ground history is a particularly important participate in a trial. This pertains to the
aspect in assessing the fitness for trial in a capacity for social and moral reasoning, per-
deaf person. An understanding of the cause spective taking and the understanding of the
(if known) of deafness is useful, because social system.
some causes are associated with other physio- Given that fitness for trial is dependant on
logical and psychological symptoms in the the capacities of understanding, reasoning,
form of various syndromes. As noted by decision-making and communication, the
Hindley and Kitson (2000), there is a multi- best possible understanding of the clients
tude of minor disorders associated with language ability must be obtained. Although
genetic syndromes and environmental causes there are some tests of language ability in
of deafness, which will have a direct or indi- other sign languages (British Sign Language),
rect psychological effect on mental state. there is currently no standardized test for
Assessors need to be wary of this. It has Auslan production or comprehension, render-
been estimated that 30 40% of children ing the task of determining sign language
who are deaf or hard of hearing may have one ability particularly challenging. A skilled and
or more other developmental disabilities or well-qualified sign language interpreter can
neurological conditions, such as learning dis- be crucial in gaining an understanding of sign
abilities (Austen & Jeffrey, 2007). language ability although the opinion of the
 Assessing Fitness for Trial of Deaf Defendants 151

interpreter should not be viewed as a formal chronology and then checking details to con-
assessment of that ability. The assessor might firm that a shared understanding is reached.
use different methods, including the use of The mental state examination of a deaf
pictures in assessing Deaf individuals to client can be challenging in many respects.
ensure that a shared understanding is reached. For example, the effect of a deaf person can
A range of images to assist with mental health be difficult to assess. When using an inter-
assessments can be found in resources such as preter, eye contact is frequently made primar-
those by Glickman and Gulati (2003) and via ily with the interpreter and not with the
websites (given later in this article). clinician undertaking the assessment. Addi-
The degree of audiological loss should tionally, it is common for deaf people to be
also be explored in the assessment. Although highly expressive with their faces. For exam-
some deaf people may use assistive listening ple, when relaying a story of someone else
devices such as hearing aids or cochlear who is angry, deaf individuals will frequently
implants, it is erroneous to assume that these adopt an expression of anger, which is not
will allow the user to hear normally, or that necessarily a reflection of their own mood.
they have had access to a full range of learn- Similarly, when describing a past event, signs
ing opportunities, as this is often not the case. and facial expressions may reflect the per-
The use of written notes should be avoided sons mood at the time of the event, but not
with deaf individuals, whose first language is a his or her current emotion.
sign language. It is important to remember that Currently, there are very few psychologi-
written English is at best a second language cal testing tools that are considered to be
for this population and that varied grammati- appropriate for deaf people given the cross-
cal structures of languages can result in writ- cultural and cross-language issues. Brauer
ten English appearing to be fragmented. At et al. (1998) write,
times, individuals who are highly fluent in
Auslan can produce written notes that would some cognitive tests are likely to elicit fund
of information bias. These tests assume
mislead a mental health professional who may exposure to and familiarity with common
interpret them as a form of thought disorder or knowledge. The restricted access to deaf
misunderstand the intended meaning due to individuals of information from the printed
the marked difference in grammar and syntax page, radio programs, overheard conversa-
(Hindley & Kitson, 2000). tions, and so on leaves most with some limi-
tations in factual knowledge that may be
An important observation of those with attributed to intellectual ability. (p. 305)
limited language is that they often experience
difficulty with abstract concepts such as time; The visual nature of sign languages can
therefore, their story is often conveyed in a result in interpreters needing to pose ques-
non-linear fashion. Sufficient time should be tions in a way that provides the client with
allowed for descriptive and narrative answers. the answer. A lack of suitable norms for deaf
Poor comprehension of verb structure is also people in Australia is also a concern. The use
very common (Woll, 2012). This can result is of psychological tests that have been
enormous challenges in ascertaining an accu- designed for use with hearing populations,
rate understanding of a past event, that is, even with the use of a highly skilled inter-
what happened first and who did what to preter, results in deaf subjects appearing
whom, which might present a considerable more disordered than they actually are (Deaf
challenge in the process of instructing a legal Wellness Center, 2010). Use of measures
representative. Clinicians who are experi- such as the Wechsler performance scales or
enced in undertaking assessments of deaf cli- Raven progressive matrices (Hindley &
ents often spend considerable time Kitson, 2000) have been used by some clini-
constructing visual time lines, clarifying the cians working with deaf clients, however, it
152 F. Davidson et al.

is important to note that no Auslan version of of measures used or lack of suitable tools for
cognitive tests are currently in existence. The assessment, as well as resource issues (i.e.,
area of assessing cognitive ability is a great availability of relay interpreter). The knowl-
challenge for those who are asked to provide edge gaps need to be acknowledged, for
advice regarding fitness for trial, particularly example, difficulties in assessing cognition or
when attempting to ascertain the clients testing Auslan literacy.
capacity to learn new information and be edu- Recommendations regarding communica-
cated about the trial process. Limitations in tion assistance required for clients in a court
the use of such measures when working with environment, to ensure that they are able to
deaf individuals should be included in any understand proceedings and participate fully
report formed, particularly in cases with legal in the process should feature in reporting.
issues. Although the conclusions from the assess-
It should be noted that some encouraging ment, including the available collateral,
work has been done in the area of measures might be that the person has no intellectual
for deaf Australian adolescents. Work under- disability or mental illness per se, he or she
taken by Cornes, Rohan, Napier, and Rey can be so functionally impaired by virtue of
(2006) has resulted in an Auslan version of low language ability that his or her capacity
the Youth Self Report, a measure of psycho- to learn sign language and be educated about
pathology for adolescents. The development the relevant legal matters can be extremely
of valid and culturally appropriate cognitive limited. In such cases, the unfitness is often
assessment tools remains an area that war- permanent due to limits to the pragmatic lan-
rants further study, particularly in light of co- guage remediation in someone who failed to
morbidities that are associated with deafness. acquire sign language during the appropriate
developmental stage. Frequently, no amount
of time or additional resources is sufficient to
After the Assessment remedy the problem.
A debriefing session between the clinician In less serious cases, it is possible that
and interpreter is usually of great benefit. The language skills might improve with intensive
post-assessment meeting allows the clinician training. Such training can also improve the
to ask questions of a linguistic or cultural persons social knowledge. The court process
nature. The interpreter may share information would have to be modified to accommodate
relating to perceived difficulties in transla- the persons level of understanding and abil-
tion, or take the opportunity to share informa- ity to follow the proceedings. Such modifica-
tion on culture that might influence any tions might include the following:
clinical attributions made based on cultural or
behavioural norms or language use. (1) The use of more than one interpreter
It may be necessary to draw on expertise with frequent changes (at least every
from others in formulating a decision regard- 45 minutes).
ing fitness for trial. In an ideal environment, (2) The use of deaf relay interpreters who
expertise across a range of disciplines in share the persons cultural experience
forensic mental health and deafness and men- and are able to draw on this perspec-
tal health, in combination with cultural and tive to aid communication.
language specialist knowledge should be (3) The availability of an interpreter at the
incorporated in the assessment and decision- counsel table to check interpretation
making processes. Reports regarding fitness and also to interpret instructions to
to plead should highlight any limitations in counsel. It is advisable this interpreter
the assessment, including the qualifications is present during the pre-trial meetings
and experience of the interpreter, suitability and is aware of the vocabulary of the
 Assessing Fitness for Trial of Deaf Defendants 153

case and the level of communication It is important to be aware that no signs

that will be required. exist for the majority of legal terminology.
(4) Filming of proceedings to review the There is an inherent ambiguity and subjectiv-
communication and act as a record. ity in interpreting what the defendant may
(5) Regular checks for understanding, have communicated and interpreters fre-
particularly when the defendant has a quently have to engage in reinterpreting what
low language ability, to avoid ten- the defendant may have stated. In a court
dency to agree regardless whether he environment, the fast pace of the proceedings
or she understands or not. may frequently draw the interpreter into inter-
(6) Allowing the interpreter time to inter- preting at a level that the defendant cannot
pret in the consecutive mode where understand. Where the deaf defendant lacks
possible, especially when issues fluency in sign language, it is often impossi-
being discussed are technical or of an ble to have adequate communication, even
abstract nature (LaVigne & Vernon, with a skilled interpreter. Interpreters have a
2003). This means that rather than difficult task to ascertain how to get from spe-
interpreting simultaneously to the cific words used in courtroom setting, to the
courts proceedings, the interpreter meaning behind those words. Subjective deci-
waits for whole messages to be deliv- sions are required by the interpreter to deter-
ered before rendering it in the other mine the best linguistic equivalent for each
language. individual deaf person. All sign languages
(7) The use of breaks to permit the use of have a much smaller vocabulary than English
role-play and pictures to enhance and they lack a body of standardized techni-
understanding and to alert the lawyers cal terms, including legal terms. There is a
to use simpler language (LaVigne & vast mismatch of language between the legal
Vernon, 2003). system that relies on the specific jargon and
the sign language system that is largely
visual. Speaking is almost always faster than
Sign Language and Working with signing and equivalent messages in English
Interpreters and sign language do not correspond tidily in
Working alongside an interpreter can be an terms of length. Therefore, attempting to
unaccustomed experience. There is a shortage keep pace with the dialogue in a courtroom
of suitably accredited interpreters with expe- can result in interpreting errors.
rience in mental health and forensic settings Those assessing fitness for trial who have
in Australia. Therefore, this section sheds little expertise with deafness often assume
light on how best clinicians and interpreters that the defendant shares a common language
can work together to provide an equitable and with the same features of communication. In
accurate assessment (Table 2). the court environment, it is commonly

Table 2. Working with interpreters tips.

 Speak normally and directly to the client the  Avoid private conversations as everything
interpreter will speak in first person (as though heard by the interpreted will be conveyed in
they are the client) sign language (and vice versa)
 Speak in plain English  Take cues from the deaf person and interpreter
about positioning in the room and lighting
placement
 Regularly check for understanding during your  Use a (NAATI) accredited interpreter at
conversation professional level (level 3)
154 F. Davidson et al.

believed the provision of a suitably qualified experience. Clinicians who do not possess the
interpreter is sufficient accommodation to knowledge of Deaf cultural considerations
ensure that a deaf defendant can participate in and who do not understand the need to access
proceedings. One of the common misconcep- suitable expertise may make erroneous deter-
tions is that there is something called the minations regarding fitness for trial. In deter-
right translation and, that two different inter- mining fitness for trial there is a clear need to
preters should be able to always offer exactly ensure that the rights of deaf individuals who
the same answers. Another misconception is face criminal charges are suitably met.
that anyone who knows two languages is
competent to interpret and that one language
can be interpreted word for word into Future Directions
another. There are also misconceptions about While there are challenges in meeting the
the time and energy required to convert a ver- needs of deaf individuals who are involved in
bal message into sign language and do it fast the mental health and criminal justice sys-
and unobtrusively. tems, there are some areas where small
In Australia, interpreters are accredited by changes can lead to significant improvements
the National Accreditation Authority for for the Australian Deaf community.
Translators and Interpreters (NAATI). It is The area of deafness and mental health
extremely important to engage NAATI- has developed and continued to strengthen
accredited interpreters to the level of Profes- over the last 20 years in several regions
sional. It is also important to source an inter- including Europe and the United States with
preter that additionally has experience and/or the advent of specialist services and training
training in mental health. It is unwise to enlist programs. At the time of writing, Australias
family, friends or unaccredited bilingual only adult specialist team, The Deafness and
colleagues in the role of interpreter. Interpret- Mental Health Service in Queensland, pro-
ing is a complex activity requiring a set of vides a limited service on a consultation liai-
specialist skills that language users other than son basis with a small part time workforce. It
interpreters have not been assessed for. Inter- also provides workforce education in this spe-
preters are also obliged to adhere to a code of cialized area of mental health. Further infor-
ethics, which will in most cases ensure a stan- mation regarding the service can be found in
dard of professional practice a clinician can the useful websites section below.
depend on. Strengthened collaboration between
forensic and deaf mental health specialists
and with deaf non-government support and
Limitations advocacy services could yield improved out-
The authors note that optimal resources for comes for the Australian Deaf community
the assessment of fitness for trial of deaf indi- can be made. Improved access to training for
viduals pose a challenge to both the criminal mental health and legal professionals regard-
justice and health systems. Lengthy assess- ing the specific issues and needs of deaf peo-
ment periods combined with a need to acquire ple they may encounter is a recommendation.
expertise from a broad range of perspectives An increased presence of deaf professionals
are challenging, given the limited workforce in the health and legal sectors to act as role
available and cost implications. In Australia, models in the Deaf community is a goal.
there are very few Auslan interpreters who Finally, further research to develop reliable
have experience in mental health and legal and valid measures of cognitive ability and
interpreting. Similarly, there are very few language ability for Auslan users is an area of
mental health clinicians with a moderate to need, which may have a significant impact on
high level of Deaf cultural awareness and assessments for fitness for trial.
 Assessing Fitness for Trial of Deaf Defendants 155

Conclusions (Napier, McKee, & Goswell, 2006). In this

article Deaf is used only in reference to the
There are issues of social justice and equity collective entities of Deaf community or Deaf
for deaf defendants in the criminal justice and culture.
mental health sectors. Assessing fitness for
trial of a deaf person is a complex and spe-
cialized area where there are risks that injus- References
tice can occur. Working with deaf people in Austen, S., & Jeffrey, D. (2007). Deafness and
mental health settings requires specific skills challenging behaviour. Chichester, UK:
Wiley.
and takes considerably more time and resour-
Brauer, B., Braden, J., Pollard, R.Q., & Hardy
ces than with a hearing person. There is a Braz, S. (1998). Deaf and hard of hearing peo-
need to increase knowledge and awareness ple. In J. Sandoval, C.L. Fisby, K.F. Geisinger,
for professionals working in this area and for J. Dowd Scheuneman, & J. Ramos-Grenier
the criminal justice and forensic mental (Eds.), Test interpretation and diversity:
Achieving equity in assessment (pp. 297 315)
health systems to be more accommodating
Washington DC: American Psychological
for deaf defendants. Association.
The authors understand that there are small Cornes, A., Rohan, M., Napier, J., & Rey, J.
numbers of prelingually deaf people in the pop- (2006). Reading the signs: Impact of signed
ulation. While it is not likely that all recom- versus written questionnaires on the preva-
lence of psychopathology among deaf adoles-
mendations of the paper can be implemented in
cents. Australian and New Zealand Journal of
resource limited clinical and criminal justice Psychiatry, 40, 655 673.
environments, small changes in the status quo Davidson, F., Cave, M., Reedman, R., Briffa, D.,
can result in large differences in outcomes for & Dark, F. (2012). Dialectical behaviour ther-
the deaf individual and their community. apy informed treatment with deaf mental
health consumers: An Australian pilot pro-
gram. Australasian Psychiatry, 20, 425 428.
Useful Websites Deaf Wellness Center, University of Rochester
Medical Center. (2010). Problems regarding
The Deafness and Mental Health Statewide psychological testing. Retrieved March 2012,
Consultation Service, Metro South Mental from http://www.urmc.rochester.edu/deaf-
Health Service, Queensland, Australia: wellness-center/scholarship-research/grant-
http://www.health.qld.gov.au/ toward-equity/psychological-testing-studies/
metrosouthmentalhealth/deafness/ Fellinger, J., Holzinger, D., & Pollard, R. (2012).
Mental health of deaf people. Lancet, 379(9820),
The National Auslan Booking Service: 1037 1044.
http://www.nabs.org.au/ Glickman, N., & Gulati, S. (Eds.). (2003). Mental
Auslan Signbank: http://www.auslan.org. health care of deaf people. London: Erlbaum.
au/ Hindley, P., & Kitson, N. (Eds.). (2000). Mental
Deaf Australia: http://www.deafau.org.au/ health and deafness. London: Whurr.
Johnston, T. (2004). Whither the deaf community?
Population, genetics and the future of Austra-
Acknowledgements lian Sign Language. American Annals of the
The authors wish to acknowledge the kind assis- Deaf, 148, 358 375.
tance of Ms Kathryn OBrien, Solicitor to the LaVigne, M., & Vernon, M. (2003). An interpreter
Supreme Court of Queensland and High Court of isnt enough: Deafness, language and due pro-
Australia (Porta Lawyers), in reviewing this cess. Wisconsin Law Review, 844, 843 936.
manuscript. Napier, J., McKee, R., & Goswell, D. (2006). Sign
language interpreter Theory and practice in
Australia and New Zealand. Sydney: Federa-
tion Press.
Note Pirelli, G., Gottdiener, W., & Zapf, P. (2011). A
1. There are a number of conventions with meta-analytic review of competency to stand
regard to whether or when to refer to deaf peo- trial research. Psychology, Public Policy and
ple as uppercase Deaf or lowercase deaf Law, 17, 1 53.
156 F. Davidson et al.

Pollard, R. (2009). Adapting health education Vernon, M., Raifman, L.J., Greenberg, S.F., &
material for deaf audiences. Rehabilitation Monteiro, B. (2001). Forensic pretrial police
Psychology, 54, 232 238. interviews of deaf suspects avoiding legal pit-
Scott, R. (2007). Fitness for trial in Queensland. falls [legal cases]. International Journal of
Psychiatry, Psychology and Law, 14, 327 349. Law & Psychiatry, 24, 45 59.
Tuck, B. (2010). Preserving facts, and function Woll, B. (2012). Communication and interpreting
when a deaf witness with minimal language with deaf isolates. Paper presented at the Aus-
skills testifies in court. University of Pennsyl- tralian Sign Language Interpreters Association
vania Law Review, 158(905), 905 956. National Conference, Adelaide.
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