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Working with deafness: access and ethics
Advances in attitudes towards the promotion of rights and equality for vulnerable and disabled populations have resulted in an increase in vulnerable client groups presenting to lawyers. When working with such populations, reasonable adjustments must be made to ensure that services are accessible and meet the individual needs of the client. This article aims to provide the first part in a series of articles to help you identify what challenges may arrive when representing deaf clients and what adjustments may be required.
Deafness may be defined medically or culturally. Medically, deafness is seen as an auditory impairment that limits access to sound and thus may be described as a hearing impairment. This may happen at any point in life due to genetic inheritance, disease, infection, illness or injury. Culturally, deafness is defined as a way of life for a group of individuals that do not view their deafness as a disability and instead are proud to be Deaf with a capital ‘D’. The group identifies with a Deaf culture and the use of sign language. In England, this is primarily British Sign Language (BSL).
Towards equity and access
In the Department of Health report, Towards Equity and Access (2005), deaf services for deaf people were supported to enable deaf people to have access to the same quality of service as hearing people. Differences in service provision were therefore required to ensure similar service quality was provided to all. In 2006, the introduction of the Disability Equality Duty placed a legal duty on all public sector organisations to promote equality of opportunity with some authorities having to deliver a ‘Disability Equality Scheme’.
Further to this, the Equality Act (2010) has meant that significant progress in the field of disability rights has been made and there is recourse to law in the event that services are not accessible or provide reasonable adjustment. Interestingly in the US there are numerous cases of deaf people suing organisations for not providing interpreters or other adjustments; it would seem only a matter of time before this occurs in the UK. Despite the Equality Act, it is our professional experience that deaf people do not have equality in terms of access to justice and this needs to be re-evaluated.
Advances have occurred; for example, it was previously accepted that family members were used as interpreters whereas presently the importance of a professional sign language interpreter (SLI) is acknowledged as essential. This said, a few recent cases have come to our attention where for reasons of cost, ignorance or expediency solicitors and even the police have used family members to interpret. In the latter case this is clearly in breach of Police and Criminal Evidence Act guidelines. Adjustments made differ in response to the degree and nature of each client’s needs. For some deaf clients the provision of a loop system may be the only adjustment required. However, for others, greater adjustments are required, including the provision of interpreters.
Challenges to assessment
Expert assessment of deaf individuals is a complex task whereby linguistic and cultural difference must be acknowledged and managed in order to understand the person’s presentation and behaviour in context. It is important to consider the primary language of your deaf client. For many deaf people that were born with a severe to profound hearing loss, it is likely that their first language is BSL. If you are communicating with your deaf client on a regular basis through letter or email, given the inaccessible nature of telecommunications, thought must be given to the likelihood of reduced reading ability despite average intellect. The use of plain English in written material is advocated and it may be important to consider the reading ability of your client. It is essential to go through reports and complex documents with an interpreter and not simply expect your deaf client to read and understand them.
The gold standard for assessments would be for your expert to be fluent in sign language to reduce error through interpretation. However, even if the expert is proficient, an interpreter or deaf relay worker may still be required. Deaf relays are used for deaf people with minimal language skills in receptive (for example, reading signs) and productive (for example, producing signs) BSL as a result of learning disability. Deaf relays are especially important when working with individuals with a strong dialect (there are regional variations in BSL) or with deaf individuals from non-English speaking backgrounds.
Deaf children present an additional challenge. For deaf children, access to incidental learning within school and family contexts is severely restricted due to auditory loss and language deprivation. As such, deaf children can display significant delays in language, cognitive development, abstract thinking and problem-solving skills that adversely affect their academic achievement, ability to form peer relationships and self-esteem. These factors exert a major influence upon development and add complexity to the assessment. Many deaf adults are practised at modifying their signing when communicating with interpreters to ensure that they are understood, whereas deaf children have not necessarily learnt this skill.
Such a complex assessment process requires time and great skill. If your expert works with an interpreter or deaf relay, they should only work for twenty to thirty minutes at a time before requesting a break, given the intense nature of their work (see the forthcoming second part of this series). In addition, deaf people, frequently having suffered from poor education and lack of access to information, often require additional time to understand the purpose of the assessment and indeed the proceedings.
Therefore completing assessments with deaf clients requires significantly more time and resources. The increase in hours is necessary for the expert to consider all of the material facts and conduct a culturally appropriate assessment taking into account relevant cultural, linguistic and communication issues to form their opinion and to advise the court. One recent challenge is the 26-week time frame in family proceedings. In practice, this has resulted in professionals without specialist expertise in deafness being instructed to complete assessments. This ultimately delivers poorer quality, and invalid assessments that are disadvantageous to the deaf client and the lawyer.
This has further resulted in the lawyer or even the deaf client having to fund a second specialist expert to re-assess, resulting in unnecessary expense and delays. When working with deaf individuals, it is imperative that the right expert is instructed initially to ensure true access to justice and prevent the risk of discrimination/miscarriage of justice and possibly costly appeals.
The instructed expert should not only be a professional with experience of working with deaf people but needs an awareness of deaf culture, experience of working with interpreters and deaf relays and proficiency in sign language.
1. Equity of access: ensure adjustments are made to allow deaf people to access a similar service to other clients and seek advice to ensure this.
2. Select the right expert: if conducting the assessment without an SLI, is the expert proficient in the use of sign language (we suggest British Sign Language NVQ3 or above)? Does the expert have expertise in mental health and deafness and awareness of working with deaf people, interpreters and deaf relays?
Dr Amy Izycky, Dr Andrew Cornes and Dr Sue O'Rourke are all chartered psychologists with deafness as a clinical specialism
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