However, while aphasia is often life-altering, it is not life-ending. According to the National Aphasia Association, a person’s intelligence remains largely unaffected. And like others with disabilities, adults with aphasia who rely on the court system to litigate disputes are entitled to reasonable accommodations under the Americans with Disabilities Act of 1990 (ADA) and Section 504 of the Rehabilitation Act. But is this law effective in practice?
For individuals with aphasia, the answer may be a disconcerting no. First, even with the 2008 amendment which expanded the definition of the term disability, the ADA may still be limited in scope. Within the court system, the ADA functions largely to guarantee physical access through things like wheelchair ramps and elevators, not for enabling individuals with invisible disabilities to enforce their rights. There has been progress, but more is needed.
Second, if we accept them as instructive, the personal experiences of Jane T. and Ruby McDonough, two individuals with aphasia who attempted to use their local courts, showcase how the law has left individuals with aphasia behind. Based in part on this author’s personal experience supporting Jane and her legal matter, this article discusses Jane’s and Ruby’s experiences in order to highlight flaws in the court system and what can be done to ensure adults with aphasia can exercise their rights.
Jane and Ruby could be anyone with aphasia
In 2016 and 2001, respectively, Jane (42) and Ruby (60) each acquired aphasia after experiencing a stroke. As a result, their ability to communicate and provide narrative information orally or in writing was severely impaired. But each could respond to yes or no questions, speak a few words at a time, and point to pictures and objects to express themselves. Nevertheless, both were largely silenced by courts.
Although aphasia hampered her ability to communicate, Jane was unyielding when she needed to use a New York State court to settle a child custody dispute in 2018. In preparation for one court hearing, she and her attorney notified two different ADA liaisons at the courthouse of her disability and requested any accommodation possible to support her ability to participate in her legal representation. Both requests were refused because, as the liaisons explained, their assistance was limited to accommodations for physical disabilities, not aphasia.
The underlying court action brought against Jane sought to alter and deprive her of certain rights (i.e., the right to parent) because of her disabilities. Despite this, the judge ignored and deflected requests for accommodation made by written motion and orally. At one point the judge even suggested that, should any attorney representing Jane have trouble understanding her, he “can read the [motion] papers [and] they can call [opposing counsel] up…” (emphasis added). Sadly, Jane’s access to justice was anything but “guaranteed.” She eventually chose to settle out of court largely because she felt there was no way to be heard in court.
Ruby’s story is similar. Despite her own struggles to communicate, starting in 2009 Ruby fought to testify as a witness in a criminal case in Massachusetts against the man who allegedly assaulted her in her nursing facility. At pretrial, the judge declared her incompetent to testify because she was “incapable of providing any narrative” and “permitting her to testify would infringe the defendant's right to cross-examination.” This ruling ignored findings of the court-appointed expert, a psychologist, who evaluated Ruby and concluded that she maintained “intact mental capacity” and was competent to testify. The expert even noted “that certain methods of questioning McDonough facilitated her communications.”
As a result of an extraordinary appeal by Ruby and her attorney, however, the Massachusetts Supreme Judicial Court ruled she could testify with accommodation, “such as allowing her to use gestures and answer only ‘yes’ and ‘no’ style questions.” Nevertheless, one day before trial, she was nearly silenced again when the prosecutor asked for another competency exam. Despite these obstacles, Ruby ultimately had her day in court and testified, although the suspect was found not guilty.
Anyone with aphasia could experience Jane’s and Ruby’s struggles. One contributing factor is a distinct lack of knowledge of aphasia among lawyers, judges, and court personnel. Richard Welland, an associate professor and speech-language pathologist in Canada, conducted a broad survey of literature relating to aphasia which included U.S. data and found little evidence to suggest that legal personnel are familiar with aphasia.
Thus, Jane’s and Ruby’s stories demonstrate that individuals with aphasia are likely to be misunderstood and mistreated by court personnel, lawyers, and judges, even regarded as incompetent when really, they lack the ability to provide narrative information. The frustration is real. Ruby’s lawyer, Wendy Murphy, summed it up best when commenting on a prosecutor’s inability to work with Ruby. “’It’s incredulous to hear a prosecutor, with two years on this case, still doesn't have a clue about Ruby’s competence, when everyone says she is competent…She has complete understanding about everything that is happening. The only issue she has trouble with is narration.’”
What can be done?
While there may be no universal solution to accommodate individuals with aphasia throughout the judicial process, there are promising practices that can help them exercise their rights:
- Education and training: As a first step, court personnel, lawyers, and judges need basic education and training so they may understand what it means for a person to have aphasia and the reasonable accommodations available under the law. As average life spans increase, courts are more likely to encounter more individuals with imperceptible disabilities like aphasia. Therefore, it is imperative the courts (and the ADA itself) adjust with the times.
- Judges must select proper expert witnesses: When conducting an individualized assessment of an individual with aphasia, it is imperative that judges select an expert witness “with the most appropriate experience” rather than one with credentials that the judge finds most impressive. A speech-language pathologist or similar expert in communicative disorders is an example of a proper expert witness. Similarly, judges must “give primary consideration to the accommodation requested [by the individual with the disability],” as required in the ADA.
- Judges must carefully consider the rights of person with aphasia when determining reasonable accommodations: Lawyers and courts should look to the 2010 Massachusetts Judicial Supreme Court decision In re McDonough as persuasive authority when determining reasonable accommodations. In that case, which was about Ruby McDonough, the court affirmatively ruled that requiring attorneys to phrase questions to a person with aphasia in certain ways, like yes or no questions, to facilitate communication does not per se infringe on a defendant’s right to cross-examination, but prohibiting a person with aphasia from testifying may be a violation of the person’s rights.
- Judges must allow aides to serve as in-court accommodations to help facilitate communication: Like courts in Canada and the UK, courts in the U.S. should team up with organizations which can supply courts with specially trained communication aides to support people with communication disabilities, such as aphasia, in order to communicate effectively with representatives of the court system. A good example of one organization working with courts in Canada in this way is Communication Disabilities Access Canada.
- Lawyers should proactively protect their client’s communication privilege: At the outset of a case, lawyers for individuals with aphasia should proactively confirm—either by stipulation or court order—that privilege will apply to communications in the presence of a third-party who is present to facilitate communication between the attorney and client. Although attorneys often passively believe this privilege is not at risk, people with aphasia are uniquely disadvantaged and vulnerable: without a third-party facilitator, communication with an attorney is difficult and the risk of misunderstanding is high; with a facilitator, potentially all of the communication with counsel could be disclosed if opposing counsel succeeded in making a claim that privilege has been waived. Further, if privilege is not confirmed at the outset, the knowledge of the risk of disclosure could have a chilling effect on someone who is already struggling to communicate and exercise their rights.
We should both hold courts accountable and provide them with the understanding and tools to properly accommodate individuals with aphasia to preserve their rights and their voice. . Sadly, individuals with aphasia often withdraw from society, adding to aphasia’s status as an “invisible disability.” Perhaps this withdrawal helps explain why aphasia is not commonly understood. Thus, in addition to advocating for practices to improve the legal experience of people with aphasia like Jane and Ruby, it is imperative to encourage dialogue about aphasia in general.
