Being deaf in court

Abstract

Based on cases involving deaf people as complainants, victims, the indicted or as affected parties, we endeavour in this study to explore how the judiciary facilitates accessibility and participation during the court process and how it takes into account language differences when reviewing cases and as mitigating circumstances when deciding the outcome of the case. The study is based on data from observations of court cases – both civil and criminal – on court documents and decisions, and on interviews with complainants, defendants and others involved in the judicial process. We focus in particular on one deaf man, Lars, who brought to court his compulsory admission (sectioning) to a psychiatric ward. The cases can be understood as ‘critical events’ by addressing injustice in terms of communicative barriers that have led to debate within and outside of the deaf community. The cases illuminate issues about accessibility, accountability and discrimination as well as the limits to and opportunities for individual and collective redress and legal activism through courts. We use the cases to discuss opportunities and inequalities inherent in the legal system and suggest multiple levels at which injustice occurs.

Keywords:

• deaf
• legal actions
• justice
• rights
• critical events

Notes

1. The token vulnerabilities of minority members, such as the deaf, are challenged and discussed in Breivik (2005a, 2005b) and Ladd (2003, 2005) by focusing on the strengths, abilities and possibilities within these communities.

2. Here we define deaf people as a minority, in so far as they have sign language as their first language. As such, deaf people are small minorities in any nation state. In some discourses around this minority status, the distinction between Deaf (with a capital D) and deaf (pointing towards the hearing loss only) has been important. We acknowledge this, but we choose not to go deeper into this issue here. For more elaboration see Breivik (2005a).

3. The study was carried out by both authors. In addition, Michelle Biseke, our master student from the University of Bergen contributed with court observations and fieldwork among deaf youths in Norway.

4. Sweden is considered to be one of the nations that has most thoroughly implemented the demands and needs of the deaf. For instance, sign language is recognized as a national minority language of the deaf in Sweden.

5. Personal communication with the chief police investigator of the crimes at the time.

6. Michelle Biseke carried out participant observation among deaf youths at that time.

7. All names have been changed to preserve anonymity.

8. Like Lars, many patients who have been admitted to hospital involuntarily or who have been given compulsory treatment suffer from schizophrenia. Such patients are also generally characterized by homelessness, a lower income, lower education and weaker social networks than patients receiving voluntary treatment (Helsedirektoratet 2012). However, Lars had a resourceful family supporting him, his own apartment and had just started higher education.

9. This deprivation of liberty was based on a professional medical assessment that did not require a court order. Norwegian mental health legislation is supposedly based on society's confidence in psychiatry as a profession. According to the Norwegian Mental Health Care Act (14), compulsory psychiatric mental health care may be provided to prevent the severe deterioration of a patient's health status if he or she is suffering from a suspected or confirmed serious mental disorder – this is known as the treatment criterion – or if there is an obvious threat to the patient's life or that of others.

10. This Commission is the court of appeal for decisions related to compulsory mental health care and coercion. It monitors mental health care implemented without patients’ consent as well as the use of force. Before the case ends up in court, the patient has to try his or her case before the Commission. In 2011, the Commission received approximately 2238 complaints about compulsory mental health admissions (54%) and the County Governor handled 850 complaints about the use of involuntary medication. About 600 people consulted the Patient and User Ombudsman on decisions involving coercion.

11. Approximately 5000 people were hospitalized in psychiatric care in 2009 (NOU 2011, 9; Økt selvbestemmelse og rettssikkerhet).

12. Involuntary admission rates to psychiatric hospitals in Norway are high compared to other countries (Iversen et al. 2009). Involuntary referral rates from European countries range between 6 (Portugal), 218 (Finland) and 259 (Norway) per 100,000 inhabitants. Norway also uses compulsory admission more than other Nordic countries.

13. In Asylums, Goffman (1961) is mainly concerned with the details of having been hospitalized at a psychiatric hospital and the nature and effects of the process he defines as ‘institutionalization’. He describes how the institutionalization process socializes people into the role of ‘the good patient’, someone ‘dull, harmless and inconspicuous’, which in turn reinforces notions of chronicity in severe mental illness.

14. He did, however, form a friendship with one of the female patients, but he was told by staff to keep his distance and not engage too intensely in that relationship (supposedly because of the problems this particular patient was dealing with).

15. Coercion in the sense of shielding, restraints and involuntary medication.