Deaf medical student denied Interpretor during clinical training

Dear Colleagues,

The lawsuit deals with the accommodations that needs to be provided to persons with disabilities  to ensure an equalizing environment. An interesting read from the New York Times.

Deaf Student, Denied Interpreter by Medical School, Draws Focus of Advocates

By JOHN ELIGON

Published: August 19, 2013

Speaking with the parents of a sick infant, Michael Argenyi, a medical student, could not understand why the child was hospitalized. During another clinical training session, he missed most of what a patient with a broken jaw was trying to convey about his condition.

His incomprehension, Mr. Argenyi explained, was not because of a deficiency in academic understanding. Rather, he simply could not hear.

Mr. Argenyi, 26, is legally deaf. Despite his repeated requests to use an interpreter during clinical training, administrators at the Creighton University School of Medicine in Omaha, Neb., have refused to allow it. They have contended that Mr. Argenyi, who is able to speak, communicated well enough without one and that patients could be more hesitant to share information when someone else was present. They added that doctors needed to focus on the patient (not a third party) to rely on visual clues to make a proper diagnosis.

Mr. Argenyi took a leave of absence at the end of his second year, in 2011, after suing Creighton for the right to finish his medical training with an interpreter. The case, scheduled to go to trial on Tuesday in Federal District Court in Omaha, is attracting the attention of the federal government and advocates who are concerned that it could deal a setback to continuing efforts to achieve equality for people with disabilities.

“I couldn't understand so much of the communication in the clinic,” Mr. Argenyi wrote in an e-mail. “It was humiliating to present only half of a history because I had missed so much of what was communicated. I was embarrassed every time I would miss medicine names that I knew from classes but couldn't understand when the patient or a colleague spoke them.”

Despite making tremendous strides over the past four decades with the passage of the Rehabilitation Act and the Americans with Disabilities Act, those with disabilities remain underrepresented in higher education and in the work force. In the medical field, people who are deaf or hard of hearing remain less likely to hold high-skilled positions than those without impairments.

Universities tend to provide requested accommodations after admitting a student who they know has a disability, proponents for the deaf say. And most arrangements for the deaf are settled long before any issues reach a courtroom, said Curtis Decker, the executive director of the National Disability Rights Network, a federally financed association of legal services programs.

But, he said of Mr. Argenyi’s lawsuit, “It’s a very important case because, I think, if it’s successful it will send a very powerful message to the university community that the law does cover them and the law is clear about the accommodations that they need to provide.”

Creighton officials maintain that they have provided Mr. Argenyi with the necessary tools for him to succeed in medical school.

“Michael Argenyi is a very bright, capable young man who Creighton believes will make a good doctor,” said Scott Parrish Moore, the lead counsel for Creighton.

After being accepted to Creighton four years ago, Mr. Argenyi asked the university to provide a real-time captioning system for lectures and a cued speech interpreter. (Mr. Argenyi, who does not know sign language, can read lips. An interpreter helps by mouthing words while using hand signals to clarify sounds.) These were the same accommodations that Mr. Argenyi, who had a diagnosis of profound deafness when he was 8 months old, received for much of his schooling, from grade school through undergraduate studies at Seattle University.

Creighton provided Mr. Argenyi with just one of the aides that his audiologist had recommended — an FM system, which amplifies the sounds he hears in cochlear implants. The university also provided note takers for lectures, priority seating and audio podcasts.

Soon after classes began, Mr. Argenyi told school officials that the accommodations were inadequate and that he was missing information. He sued in federal court in Omaha in September 2009, arguing that the university was legally required to pay for and provide necessary aides.

Mr. Argenyi said he hired his own interpreter and transcription service, which cost him more than $100,000 during his two years in medical school. The breaking point, he said, came during his clinical work in his second year when Creighton refused to allow him to use an interpreter, even if he paid for it himself. The university did allow Mr. Argenyi to use interpreters during a couple of clinics while the Justice Department was trying to broker a settlement, but stopped when a deal could not be reached.

Mr. Argenyi is pursuing degrees in public health and social work at Boston University, which is providing his requested transcription services, while the lawsuit is pending.

Source: New York Times with the headline: Deaf Student, Denied Interpreter by Medical School, Draws Focus of Advocates.

Deaf and Speech Impaired can be Key Witnesses in Criminal Trial : SC

Dear Friends,

I firmly believe that exposure and practice can make you aware of things you wouldn't have ever believed or done. If you remember the much hyped Driving Licence for the Hearing Impaired case that I updated earlier on this blog several times on  20 September 2009,  09 November 2009 and 15 February 2011,  Hon'ble Justice Dipak Misra, then Chief Justice at the Delhi High Court headed the bench that heard the case. In the instant case, the deaf were declared competent to drive the private vehicles if they cleared the driving test like any body else by the Hob'ble Court.

Subsequently Chief Justice Dipak Misra  was elevated to the Hon'ble Supreme Court. The learnings from the above Deaf Driving case found their reflection in the judgement below that was pronounced by a bench of Justice B.S. Chauhan and Justice Dipak Misra yesterday (i.e. 21 May 2012) in Criminal Appeal No. 870 of 2007 titled State of Rajasthan Versus Darshan Singh in Hon'ble Supreme Court.

In the instant case the High Court  of Judicature for  Rajasthan at Jodhpur set aside the judgment and order dated 15.1.2003 of the Additional  Sessions  Judge  (Fast  Track)  Hanumangarh, convicting the respondent  of  the offences punishable under Section  302  of  Indian  Penal  Code,  1860 and imposing the punishment to suffer rigorous imprisonment for life and to pay a fine of Rs. 500/- in default to further undergo one month simple imprisonment. This was on the basis of the evidence of the sole eye witness who was speech & hearing impaired and was the wife of the victim. She gave her evidence with the help of her father who acted as her interpreter.

The High Court did not found favour with the evidence of the sole eye witness as the court it raised questions over the competence of the deaf witness and process of recording the evidence and that the father of the eye witness who acted as interpreter was an interested party in the case.

Good points in the Judgement: 

Though I don't agree with the language used to refer to Speech and Hearing Impaired persons- where both our media and judiciary need to sit and take a note of, I am happy that the judgement looks promising and is a step towards progressive realization reiteration from the apex court of India that the deaf or the hearing impaired persons are no less competent when it comes to act as star witness in a criminal case.

Stating that a court can bank on a "deaf and dumb"  (read hearing and speech impaired) as a star witness in a criminal trial, the Justices refereed to Evidence Act that has changed to embrace the scientific fact that such people are "generally found more intelligent and susceptible to higher culture than one was once supposed". Section 119 of The Evidence Act mandates that a person unable to speak can use signs or write his or her testimony, which would be deemed oral evidence, if made in open court.

The court further explained, "Language is much more than words... A case in point is the silent movies which were understood widely because they were able to communicate ideas to people through novel signs and gestures."  It further observed, "Like all other languages, communication by way of signs has some inherent limitations since it may be difficult to comprehend what the user is attempting to convey. But a dumb person need not be prevented from being a credible and reliable witness merely due to his or her physical disability. Such a person though unable to speak may convey himself through writing if literate or through signs and gestures if he is unable to read and write.

The operative paras of the judgement

"21. To sum up, a deaf and dumb person is a competent witness.   If in the opinion of the Court, oath can be  administered to him/her, it   should be so done.  Such a witness,  if able to read and write, it is   desirable to record his statement giving him  questions in writing and  seeking answers in writing.  In case the witness is not able to read  and write, his statement can be recorded in sign language with the aid  of  interpreter,  if  found  necessary.   In  case  the  interpreter  is  provided, he should be a person of  the same surrounding but should  not have any interest in the case and he should be administered oath."

22.    In the instant case, there is sufficient material on record that Geeta (PW.16) was able to read and write and this fact stood proved in the trial court when she wrote the telephone number of her father. We fail to understand as to why her statement could not be recorded in writing, i.e., she could have been given the questions in writing and an opportunity to reply the same in writing.

23. Be that as it may, her statement had been recorded with the  help of her father as an interpreter, who for the reasons given by the  High Court, being an interested witness who had assisted during the  trial,  investigation and was  examined without administering oath,  made  the  evidence  unreliable.  In  such  a  fact-situation,  the  High  Court  has  rightly  given  the  benefit  of  doubt  and  acquitted  the  respondent.

24.     We are fully aware of our limitation to interfere with an order  against  acquittal.  In exceptional cases where there are compelling  circumstances  and  the  judgment  under  appeal  is  found  to  be perverse, the appellate court can interfere with the order of acquittal.  The  appellate  court  should  bear  in  mind  the  presumption  of  innocence of the accused and further that the trial Court’s acquittal

bolsters the presumption of his innocence. Interference in a routine  manner where the other view is possible should be avoided, unless there are good reasons for interference.

25.  If we examine the judgment of the High Court in light of the  aforesaid legal  proposition,  we  do not  find it  to be a  fit  case  to  interfere with the order of acquittal.  The appeal lacks merit and, is accordingly, dismissed."

The lacunae in the judgement

No two views are alike and the law presumes innocence unless convicted. However in the instant case my considered view is that the Hon'ble Bench could have also done justice then showing just ways on following three counts:

(a) The Bench presumed that the Deaf Witness Geeta was able to write the telephone number so she was educated enough and could give her evidence in writing. Merely being able to write a phone number doesn't mean the witness could answer in writing and could read and write. The bench may not have been exposed to the kind of education the deaf children get in the country. While they may be able to write or remember telephone number, only a small fragment can write coherent sentences .. such is the state of affairs of the deaf education in Delhi- the capital of the Nation.

(b) If the Judges felt that the evidence wasn't foolproof and was unreliable due to the chances of father acting as an interpreter and also claimed to be an interested party and if there were procedural errors in collecting the evidence by the prosecution, in my considered view,  this was the fit case to be remanded back to the trial court to recollect the evidence keeping the legal formalities of an independent interpreter or re-appreciating the signs recorded at the time of evidence and through in camera recording of the evidence. The sole witness is alive and the Hon'ble court has already declared that she is the star witness and should not be discredited only due to her disability. Today there are enough sign language interpreters who could have assisted the trial court. On the contrary, the Hon'ble court chose to give the benefit of the doubt to the convict who had himself accepted that he killed the victim and it stood corroborated with the entire evidence on record and recovery of the murder weapon at his instance.

(c) The language in the entire judgement refers to the witness as "deaf and dumb" which is not an acceptable noun to refer to a person with Hearing and Speech impairment. The apex court should atleast set precedent in the use of proper language in light of the The Persons with Disabilities (equal opportunities, protection of rights and full participation)  Act 1995 as well as The UN Convention on the Rights of Persons with Disabilities 2006 that Indian is a proud signatory to.

Read the Entire Judgement in PDF here.

Read the coverage by the Indian Express  today here.

Read the Coverage by The Times of India here.

Regards,

Subhash Chandra Vashishth

Advocate- Disability Rights

subhashcvashishth@gmail.com

Deaf Man sues for being jailed without hearing him out through a sign language interpreter

Dear Friends,

After success at a PIL seeking interpreters for the deaf people  to make the public places accessible, the incidences like the one below in USA should become common in India too!

The present suit is a struggle of Siaki, a deaf person, against the establishment for denying him access to justice by not providing him a sign language interpreter during the arrest and booking process.

The suit indicates the urgent need of policies and procedures for dealing with deaf people keeping in mind their access needs and human rights. Its is wrong to assume that a deaf person understands what is being said to him.

Here is the struggle of  Siaki, a deaf person, against the establishment for denying him access to justice.

To read from Source click here : Mail Online

Deaf man suing after being jailed for 25 days 'without a sign language interpreter'

Authorities detained a deaf man for 25 days in jail without providing a sign-language interpreter, lawsuit has claimed. 

Domestic assault charges were eventually dropped against Timothy Siaki by Adams County officials.

A lawsuit filed Wednesday in U.S. District Court seeks unspecified damages and a finding that Adams County officials violated the Americans With Disabilities Act over his May 14, 2010, arrest and detention.

The Denver Post reports Siaki doesn’t read or write English or read lips, but he does communicate through American Sign Language. Deputies arrested Siaki after a noise complaint at a motel where Siaki and his fiancee were verbalizing sounds while arguing.

Deputies responding to the complaint knocked down the motel-room door and tackled Siaki after he failed to respond to their commands.

An Adams County sheriff’s spokesman says officials need to review the suit before commenting. Siaki’s fiancee, Kimberlee Moore, as well as Colorado Cross-Disability Coalition advocacy group are also plaintiffs in the suit.

Adams County Sheriff Doug Darr is named as the defendant.

'There were 25 days of his life that he had access to nothing — no information on why he was being held, no information about his case or what was going to happen to him,' said Kevin William, an attorney who filed the lawsuit.

According to the lawsuit, Moore tried to tell the deputies that Siaki didn’t hurt her but couldn’t because she was not provided an interpreter or any aids.

The suit claims Adams County is violating the ADA by failing to provide an interpreter or auxiliary aids for deaf suspects during their arrest and booking process.

'To this day,' he said, 'we don’t know why he was held for 25 days.'

Williams told the paper the coalition recently settled a similar case against the Lakewood Police Department and the Jefferson County Sheriff’s Office that call for very specific policies for compliance with the ADA.

'They need policies and procedures for folks who are deaf,' Williams said. 'People just assume that a deaf person understands what they are saying.