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
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

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: Fiona_Davidson@health.qld.gov.au

2014 The Australian and New Zealand Association of Psychiatry, Psychology and Law
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 persons 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.
 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
Glickman and Gulati (2003); Pollard (2009); Johnston (2004) & Davidson et. al. (2012).
The defendants ability to make decisions and
instruct counsel during the trial are heavily
dependent on his or her ability to understand
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 persons 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
defendants 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 defendants 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
147
 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
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
defendants fitness needs to obtain information
in relation to the offence from the defendants
lawyer and hear the lawyers views about the
accuseds 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
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
defendants 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
defendants 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
defendants 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
 Assessing Fitness for Trial of Deaf Defendants
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-
sons 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
149
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 clients use of language and
education level. It is also helpful to find out if
the clients family members use sign lan-
guage. The interpreter should also be
informed about the clients 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 clients 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 clients 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 clients 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 clients
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
 Assessing Fitness for Trial of Deaf Defendants
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
151
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-
sons 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 clients
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
persons social knowledge. The court process
would have to be modified to accommodate
the persons 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 persons 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
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).
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
153
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
 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, Australias
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.
 Assessing Fitness for Trial of Deaf Defendants
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:
http://www.health.qld.gov.au/
metrosouthmentalhealth/deafness/
The National Auslan Booking Service:
http://www.nabs.org.au/
Auslan Signbank: http://www.auslan.org.
au/
Deaf Australia: http://www.deafau.org.au/
Acknowledgements
The authors wish to acknowledge the kind assis-
tance of Ms Kathryn OBrien, 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
155
(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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