Neurodiversity: difference or disability?

Sophie Tompson and Jen Clark

Judy Singer first coined the phrase ‘neurodiversity’in the late 1990’s. Singer was a sociologist who had a diagnosis of autism, but he didn’t believe this to be a disability. He believed that all minds are unique and there are infinite numbers of variations on how the mind is works. He believed that variations from ‘neurotypical’ did not automatically mean a disability, but rather a difference.

This week is Neurodiversity Celebration Week and we are admiring how all of our beautiful minds differ. For some neurodiversity is a disability, but for a lot of people it is a difference that should be acknowledged and accommodated.

As part of our work as intermediaries, we are always working to accommodate people’s diverse communication needs. To mark this week, we are sharing two experiences of our work with neurodiverse people to ensure they were able to participate in their legal proceedings.

Working with people with ADHD during assessments

ADHD (Attention Deficit Hyperactive Disorder) is one of the most common neurodivergent diagnoses in children and can often continue through adolescence and adulthood. Inattention, hyperactivity, and impulsivity are the key behaviours that a person with ADHD is likely to exhibit.

A typical Communicourt intermediary assessment takes between one and three hours, and concentrating for this period of time will be challenging for a person who is diagnosed with an attentional disorder such as ADHD. When you throw in the fact that we have had to conduct many of our assessments remotely via a video platform during the last 12 months, the task becomes increasingly difficult. 

During a face-to-face assessment, the intermediary would ensure the environment is best suited to the formal assessment. This would include removing physical objects which are likely to distract the neurodivergent person. Asking someone with ADHD to attend an assessment remotely from their home gives us limited control over the environment. We can’t guarantee the person will be in a private room, free from disruptions or distractions.

“For some neurodiversity is a disability, but for a lot of people it is a difference that should be acknowledged and accommodated.”

Keeping focus

A person with ADHD is likely to have more difficulty in controlling their impulses than a person who is neurotypical. For example, where a neurotypical person may feel compelled to sit in a fixed position for the duration of the assessment, a person with ADHD may be less able to control their urge to wander around their home and pick up their belongings.

At the outset of the meeting, the intermediary will ask the neurodivergent person to go to a private space and ensure that they are available for the expected duration of the meeting. They will be encouraged to make themselves comfortable and prop up their device so that they do not have to hold it for the entire length of the meeting. The hope is that once the device is in a more ‘fixed’ position, they will be less inclined to wander around their home.

If they move into an unsuitable setting during the assessment, the intermediary may implement a break and ask them to return to the private setting before they continue.

The intermediary may create a visual checklist of the assessment topics and show this to the neurodivergent person when explaining the process of the assessment. After each task, the intermediary may refer them back to this visual checklist and cross off the task that has been completed.

Evidence suggests that people with ADHD may be assisted to maintain focus if they are given a small object to fiddle with. The intermediary may encourage a neurodivergent person to find a small household object to fiddle with during the meeting, for example, a piece of blue tac, an elastic band, or a pen. This strategy occupies their hands and makes it less likely that they will be compelled to pick up other (more distracting) objects or carry out other tasks.

The intermediary will implement frequent, short breaks throughout the meeting to assist with attention and concentration. Should the neurodivergent person become particularly distracted, the intermediary may enforce a longer break and encourage them to turn their camera off or leave the room to allow them a full rest break.

Sam’s assessment

This is an example from a remote assessment with Sam*, a young man diagnosed with ADHD. During an expressive language task, the intermediary asked Sam to detail “every little step” involved in making a cup of tea. Sam took this request particularly literally and responded, “Well why would I tell you when I could show you?” and proceeded to take the intermediary through to the kitchen (on their iPad). Once in the kitchen, Sam became increasingly distracted by the environment and gave the intermediary a ‘tour’ of his kitchen cupboards. The intermediary prompted Sam to talk them through the steps whilst he was making his cup of tea.

Once the task was complete, Sam began making himself some toast. The intermediary implemented a short break and asked Sam to return to his previous seating position once he had eaten. Upon Sam’s return, the intermediary showed Sam the visual checklist and explained there were only two more tasks to go. Sam was able to refocus his attention and participate for the remainder of the assessment.

Working with people with autism at court

Autism is a diagnosis which is attributed to three main characteristics: social interaction, social communication, and repetitive behaviours. It is more prevalent for men and can present with different characteristics for women.

We do not implement communication strategies based on diagnoses, we focus on our assessed communication and mental health profiles for each person. Here are some of the areas where autistic people may need support, and the strategies we may employ to help them. 

Social communication:

An autistic person may find it hard to process nonverbal cues, such as facial expressions and tone of voice. So it is essential these nuances in communication are explained within court. For example, if someone is being sarcastic, some autistic people will find this difficult to identify.

Additionally, some autistic people have strong language skills, but find it hard to understand what is expected of them within a communication exchange. They may repeat information using the same words or become tangential on a topic they prefer. When supporting vulnerable people to either give instructions or during evidence, it is important to signpost topics to focus their attention and when required prompt them to use their own words.

Some autistic people find it easier to understand and process information, but might struggle to express themselves. Multiple strategies can be initiated for people with expressive difficulties, such as more frequent breaks, being given an adequate time to process and answer questions, using more specific prompt questions to elicit more detail and so on.

“We do not implement communication strategies based on diagnoses, we focus on our assessed communication and mental health profiles for each person.”

Social Interaction

Some autistic people may find it difficult to recognise other people’s feelings and emotions, or to express their own. If this is the case with someone we are supporting, it is usually raised within the report and during the ground rules hearing, so those within court do not draw negative inference due to difficulties displaying or processing emotion. Also, in court sometimes it is appropriate to ask what emotions a witness is displaying, to check that the autistic person is processing this additional information, and if not it can be explained.

Another presentation for autistic people is feeling overwhelmed by social interaction and difficulty forming close connections. Within court this can be managed with more regular breaks to ensure they can have rest time where they are not required to communicate with anyone. On top of this the intermediary can request additional time to get to know the autistic person to try and build a rapport with them before court starts.

Repetitive behaviours

Autistic people may favour a routine and do not like to deviate from this. For example, they can prefer to eat the same meal for breakfast, lunch and dinner or walk a certain way to work.

To try and support this, intermediaries can request either a timetable of proceedings (family court) or an order of scheduling (criminal court) which outlines the flow of proceedings. This can be transformed into a visual timeline that can be edited to try and support any difficulties with change. We explain that the timetable may change (and often does) but being able to edit a document so they know what is happening each day can support.

Working with Linda in court

Linda* was a first-time young mother who had a diagnosis of autism. We worked together on a week-long family case with the support of her advocate (an advocate is an individual who has worked with Linda for longer and is there for emotional management).

Linda could process information well, but had difficulty understanding the intricacies of conversations, retaining information and taking language at its literal meaning. 

As an intermediary, it is crucial that we don’t just look at a diagnosis, but instead consider the differences in communication profiles for each person and tailor our support to that. It was essential that information could be repeated for Linda, and that we had the opportunity to talk whilst court was in session in case she misinterpreted information.

Due to Covid restrictions, the case was being held remotely using video conferencing. At a Ground Rules Hearing the Judge presiding over the case agreed that Linda and I could be in the same room when joining the hearing remotely. Other strategies of support were also discussed, such as the advocate attending in person, the frequency of breaks and how I would update the court as to the usefulness of these strategies.

One area where Linda required more support was interpreting and understanding figurative and complex language used within court. Linda often processed figurative language at its literal meaning. For example, during the court hearing they were discussing arriving at a house. Linda was adamant that this was not true, as they did not arrive at the house but were on the road outside. This meant that she was fixating on a detail that was not as important as the point being made.

I requested a short break so I could clarify the point to her. I was required to explain this difference in meaning to Linda and refocus her attention to the point being raised. I reassured her that I would highlight this difference to her barrister, who later in court clarified the point that they came to the road outside the house. This example shows a difference in interpreting and understanding information that is not wrong, but could lead to a breakdown in communication. Our role is to be aware of when these miscommunications may occur depending on our vulnerable person’s needs and implement strategies to ensure information is not misinterpreted.

*Names have been changed to protect identities