Kathryn, an intermediary, talks about assessments and how they can help people with communication difficulties

When we receive a referral to work with someone with communication difficulties, our first step is to carry out an assessment. There can be concerns about someone’s ability to take part in court proceedings for a number of reasons. They may have a diagnosed learning disability or learning difficulty, a mental health condition, or their age may be a factor.

The assessment establishes what additional support someone might need in order to participate in their hearing, including whether they will benefit from the presence of an intermediary at any or all stages of their hearing.

The purpose of an intermediary assessment is to identify communication difficulties, consider how these will impact a person’s participation in court proceedings and establish strategies that assist.

Following the assessment, we will carefully consider our findings and make recommendations regarding strategies and measures that will support the person’s participation in proceedings.

In many cases, due to the communication difficulties observed during the assessment, it is recommended that an intermediary is present throughout proceedings to assist with implementing the necessary measures. However, this is not always the case.

The assessing intermediary may determine that a person’s communication needs can be supported by the court, provided that the recommendations outlined in the report are consistently adhered to. On some occasions, the intermediary may find that someone’s communication needs are too great for an intermediary to be able to provide sufficient support.

We assess a person’s individual needs, and in 27% of the cases assessed by Communicourt, we  do not recommend an intermediary to be present at the trial/hearing.

The intermediary report provides specific recommendations and guidance for supporting communication at all stages of proceedings. This includes how best to communicate with the defendant or respondent during conferences, how they can be assisted to following proceedings whilst in court, and how they can be supported to give their best evidence.

What does an intermediary assess?

Everyone has a unique communication profile and will demonstrate a different combination of strengths and weaknesses.

An intermediary assessment aims to obtain a holistic view of someone’s receptive and expressive communication abilities; that is, their ability to understand and use language.

We will also discuss any medical diagnoses or conditions that are reported, in order to understand how these impact on communication.

We will explore a number of aspects of communication, these include but are not limited to:

• Attention and concentration
• Auditory working memory capacity
• Expressive abilities
• Literacy

Through exploring someone’s communication profile, we can identify communicative limitations, and advise the court how these will impact on a respondent or defendant’s ability to engage in different stages of proceedings.

The court environment is cognitively demanding and needs high levels of concentration. Defendants and respondents in criminal and family courts are typically required to:

• Sustain their focus for long periods of time to follow what is being discussed in court.
• Listen to technical legal arguments, submissions and directions, and expert evidence.
• Remember key information over the course of their hearing which could last days, weeks or even months.
• Respond to a range of long and complex questions and be able to indicate if they do not understand a question.
• Provide their legal team, the judge and/or the jury with a clear and coherent account of their side of the story.

How does an intermediary assess communication?

Our assessments consist of a series of more structured tasks, as well as informal discussion and observation. From the beginning, we will be adapting to the individual’s needs and implementing strategies to support communication where necessary.

For example, during introductions, we will explain our role using simple language. Depending on the level of understanding that the person being assessed displays, we may then:

• Use a visual aid, such as drawings or simple notes to supplement this explanation.
• Repeat the explanation.
• Break the information down into smaller ‘chunks’.
• Provide a physical list or flowchart which outlines the assessment process.

Similarly, throughout the meeting we will be alert to any signs of attention difficulties. To support concentration, we may:

• Implement breaks.
• Offer a ‘fidget object’.
• Minimize distractions within the environment.
• Use clear ‘topic headers’ to direct the person’s attention.
• Write down the tasks to be completed, so the person can visualize what is left to complete.

By observing difficulties and testing out different strategies, we can make informed recommendations about measures and adaptations that will support someone’s participation in proceedings.   

Structured assessment tasks help to provide greater insight into specific areas of communication, as well as how an individual copes when greater demands are placed on their processing abilities. For example, a person may be able to engage well during informal conversation, which may mask their underlying communication difficulties. These difficulties may become more apparent when they are required to listen to a short story and subsequently answer questions about it, or when asked to follow a series of instructions of varying lengths and speeds.

By using more structured assessment tasks, we can identify whether, for example, someone has a limited auditory working memory capacity, a reduced receptive vocabulary, or is unable to read with understanding.

The assessment environment is not reflective of the court environment; it is typically a quiet, one-to-one setting with the opportunity for a period of rapport building and regular periods of rest or informal conversation.

We have to consider how someone’s communication needs may differ in the court environment. We can ask questions about the person’s experiences at court so far, and how they feel about attending court in the future, so as to understand any difficulties or concerns from their perspective.

From assessment to court

The intermediary report will outline the assessment findings and any subsequent recommendations. This includes guidance on how language and questioning style can be adapted appropriately, and any other modifications to the court process that will support an individual’s needs.

These recommendations should then be discussed with an intermediary at the Ground Rules Hearing, to enable proceedings to run smoothly.

John and Susie’s experiences demonstrate how information gathered at the assessment stage can go on to ensure they are supported effectively at court:  

John

When John* attended his intermediary assessment, he reported that he takes daily medication that causes him to feel drowsy, particularly in the mornings. As a result, he had considerable difficulty attending to information during the assessment. However, he did not request breaks when he was struggling.

The intermediary recommended that the court consider sitting for shorter days, and incorporated regular breaks into the court day, in order to support John’s ability to concentrate during his hearing. The court accommodated this recommendation, starting late and finishing early each day, as well as taking regular breaks.

With this support, John was able to focus on and engage with the evidence being heard each day; this also helped to prevent him becoming too tired over the course of his hearing.

Susie

During her intermediary assessment, Susie* explained that she experiences sensory issues. In particular, she reported difficulty with concentrating and processing information when she is in a bright or visually stimulating environment.

The intermediary report recommended that Susie take part in a ‘familiarisation visit’ so that she could see the courtroom before her hearing and identify anything within the environment that may cause her to experience sensory overload. It was also recommended that Susie be permitted to wear sunglasses whilst in court to help reduce sensory overload from the lighting.  

The familiarisation visit gave Susie the opportunity to alert her legal team and intermediary to a light that she found overwhelming; as a result, the seating arrangements in court were reconsidered to ensure that Susie was not near to the light source. She was also permitted to wear sunglasses whilst in court. These adaptations helped to prevent Susie from experiencing sensory overload, enabling her to focus on proceedings more effectively.

*Names have been changed.